Municipal Corporation vs Kuldeep Singh

Deepak Gupta, J.

1 This petition by the Municipal Corporation, Shimla is directed against the judgment dated 27.8.2010 passed by the learned Additional District Judge, Shimla whereby the appeal filed by the Respondent was allowed and the order dated 19.6.2010 restraining the Respondent from carrying out any further construction till final outcome of the investigation by the Vigilance and Anti Corruption Department was set aside.

2 Briefly stated the facts of the case are that the Respondent herein purchased a plot measuring 159.69 Sq. metres in Kaithu, Tehsil and District Shimla in the year 2006. The plot had been approved for construction in favour of the predecessor-in-interest of the Respondent. At that time necessary permissions from all concerned were obtained and according to the Forest Department no trees were existing on the spot.

After the Respondent purchased the plot, he submitted plans to the Municipal Corporation, Shimla for grant of development permission. Again an enquiry was conducted and after completing all codal formalities, the Municipal Corporation, Shimla vide order dated 2.5.2008 granted sanction to the Respondent and approved the plans submitted by him. Thereafter the Respondent started raising construction over the plot in question. It appears that another inspection was carried out some time in March, 2009. The Assistant Conservator of Forests along with Range Officer and Forest Guard visited the site where the Respondent was carrying out digging/excavation of his plot. This Committee found that there was one green "deodar" tree; one green "oak" tree and one dry "kail" tree which were standing on or abutting the boundary of the plot of the Respondent. Thereafter the Divisional Forest Officer (DFO), Shimla sent a communication to the Municipal Corporation, Shimla in this regard on 31.3.2009.

Taking note of the aforesaid communication the Commissioner, Municipal Corporation, Shimla issued notice u/s 248 of the HP Municipal Corporation Act, 1994 to the Respondent alleging that the house building sanction had been obtained by suppressing the material fact that there were trees on the boundary of the plot and the Respondent was asked to show cause why the building sanction should not be withdrawn.

The Respondent filed reply to the same and alleged that he had only purchased the plot in the year 2006 and the building sanction had already been granted earlier. The Commissioner, Municipal Corporation, Shimla during the course of this enquiry directed the Tehsildar (Urban) to demarcate the land in the presence of officials of the Municipal Corporation, Shimla and the Forest Department. On 19.6.2010 the Commissioner, Municipal Corporation, Shimla came to the conclusion, on the basis of the report of the Junior Engineer dated 14.6.2010, that after demarcation it had been found that there are green tree existing within the plot boundary of the Respondent which were not indicated in the approved drawing. The Commissioner, Municipal Corporation, Shimla found that the building permission had been obtained after suppression of material facts. He, therefore, referred the matter to the Director General of Police, State Vigilance and Anti Corruption Department since such sanction could not have been granted without the complicity of the officials concerned. He further restrained the Respondent from carrying out any further construction till the investigation was completed.

Against this order, the Respondent filed an appeal which was allowed. Hence the present petition.

At the outset, it may be mentioned that this Court had given a number of opportunities to the Respondent to get the enquiry completed, but the same has not been completed. The Respondent cannot be restrained indefinitely from raising construction since there is a sanctioned plan in his favour and the question whether he had obtained sanction by suppression of material facts has still to be decided.

I have also seen the photographs of the spot and find that in fact the construction is almost complete and only walls etc. have to be erected, therefore, the present petition is disposed of with the following directions:

a) That the Respondent can complete the work of enclosing the lintels by raising walls and carrying out work within the four walls;

b) He shall however not be entitled to extend the building on any side, nor shall he be entitled to raise the roof till the matter is decided;

c) It is made clear that any construction raised by the Respondent shall be subject to the final outcome of the enquiry and if it is later found that trees existed on the plot or on the boundary and that the building permission was obtained after suppression of material facts, then all consequences shall follow and if the building or any portion thereof has to be demolished, the Respondent shall not raise any objection or claim any equity in this regard.

With these observations the petition is disposed of. No order as to costs.