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Judgment
Rajiv Sharma, J.—Respondent No. 6 and her husband, Bhagwat Guru submitted an application seeking permission for development of land, u/s 16 of the Himachal Pradesh Town and Country Planning Act, 1977 (hereinafter referred to as the �Act� for brevity sake) on 9.8.2010. The permission was accorded by respondent No. 2 on 8.9.2010 for development works on Khasra No. 2731/187 measuring 1620.80 square meters. The set-backs were prescribed in the building permission dated 8.9.2010. Respondent No. 3 also accorded building permission, u/s 203 of the Himachal Pradesh Municipal Act, 1994 (hereinafter referred as the �Municipal Act� for brevity sake) on 7.12.2010. Respondents No. 5 and 6 started raising construction in sequel to Annexures P-2 and P-3 dated 8.9.2010 and 7.12.2010, respectively. Petitioner filed a complaint to the Town Planner, Town and Country Planning Department, Kullu, vide Annexure P-5 on 21.4.2011 stating therein that respondent No. 5 has started raising construction in violation of building plan approved by the Town and Country Planning Department and also by the Municipal Council, Kullu. Petitioner has requested the concerned authorities to visit the spot and prepare the site construction map. It was also stated that no rain harvesting tank has been constructed as shown in the site plan thus violating the approved plan. In sequel to the complaint made by the petitioner, the Executive Officer of respondent No. 3, Municipal Council, Kullu sent a communication to respondent No. 5 advising him to stop the work and take the demarcation from the revenue authorities vide letter dated 21.4.2011. It was stated that the construction should be as per approved plan. The Assistant Town Planner also issued order dated 23.4.2011, u/s 39-A of the Act to respondent No. 5 to stop the construction forthwith on the building, failing which action u/s 39 of the Act was required to be initiated. The copies of the same were also addressed to the Deputy Commissioner, Kullu, Deputy Superintendent of Police, Kullu. According to the averments contained in the petition, respondents No. 5 and 6 did not stop the construction work and in these circumstances the present petition has been filed.
Respondents No. 1 and 2 have admitted in the reply that no demarcation report was submitted by late Sh. Bhagwat Guru and respondent No. 6. It is further averred in the reply that the Junior Engineer of the Divisional Town Planning Office, Kullu, after the complaint filed by the petitioner has visited the spot and some deviation was noticed for which notice was issued to respondent No. 5 to stop the construction work. The copies of the notice were also endorsed to Deputy Commissioner and Deputy Superintendent of Police, Kullu and Station House Officer, Kullu for taking necessary action. According to the reply, violation and deviation could only be ascertained after the demarcation by the competent authority. It is also averred that the proposal for construction of building plan submitted by late Sh. Bhagwat Guru and respondent No. 6 was well within the land under their ownership and possession and the maps were approved strictly in accordance with the provisions of the Act. It was also admitted by respondents No. 1 and 2 that the sketch map was prepared without demarcation and the Deputy Commissioner, Kullu was requested for the demarcation of the land as early as possible.
The stand of respondent No. 3 is that, if there is any deviation, or the mandatory set backs are not maintained, this aspect could be looked into after the completion of the building. In para 9 of the reply filed by respondent No. 3, it is specifically stated that true picture would emerge after the proper demarcation and after filing of the complaint by the petitioner, necessary steps have been taken by issuing notice to stop the construction work and the site was also inspected. Surprisingly, it is also stated by respondent No. 3 that the conditions mentioned in the sanction letter would be looked after on the completion of construction and not at the initial stage. It is also averred that respondent No. 3 has retained Rs. 5,000/- to ensure that the construction is carried out as per the approved building plan. Respondent No. 3 also stated that the spot was visited by the Executive Officer on 2.5.2011 and site inspection report was prepared as Annexure P-4/2 whereby deviation in covered area was noticed to the extent of 0.27 meter in length, i.e. 13.71 x 0.27 meter = 3.70 square meters area and 4.83 meters x 1.30 meters = 6.28 square meters in right side portion as per the sketch Annexure �A�.
Respondents No. 5 and 6 have also filed separate reply. The sum and substance of the reply filed respondents No. 5 and 6 is that the construction was being carried out strictly as per Annexure P-2. The locus of the petitioner was also challenged. According to respondents No. 5 and 6, the communications issued as per Annexures P-6 and P-7, were only advisory in nature.
Respondent No. 4 has also filed affidavit. According to him, the order of the Court was received on 29.4.2011 by his office. The site was inspected by the police on 29.4.2011 and at that time no construction was going on. The premises were again visited by the Police alongwith Senior Assistant of Town and Country Planning Department, Kullu during the morning hours on 30.4.2011. The Town and Country Planning Department tried to deliver the notice of the orders passed by this Court, but respondent No. 5 was not present on the spot. His family members refused to accept the notice. Respondent No. 4 has given reference of section 39 of the Act and rule 19-B of the Himachal Pradesh Town and Country Planning Rules. The gist of the affidavit is that as and when the Station House Officer, Police Station, Sadar, Kullu receives the request, the same is required to be implemented and since no request was made, no action as required u/s 39-A and Rule 19-B could be taken. However, in the subsequent, affidavit filed by respondent No. 4, he has stated that he was bound to ensure due compliance of the orders passed by this Court. This affidavit is at page 102 of the paper book.
The petitioner has filed rejoinder to the replies filed by the respondents and has also placed additional material on record.
This Court passed the following order on 29.4.2011:
Notice. Mr. J.K. Verma, Deputy Advocate General accepts notice on behalf of respondent No. 1. The petitioner will serve dasti notice on respondents No. 2 to 7. There will be direction to the respondents No. 2 to 4 to forthwith inspect the premises and see whether the lawful orders passed preventing any construction in the property are duly complied with and if not, what steps have been taken by those respondents. Short affidavit in that regard will be filed within a week. Post on 4.5.2011.
A copy of this order, duly authenticated by the Court Master, be furnished to the parties, today itself.
Mr. R.L. Sood, Senior Advocate has brought to the notice of the Court that despite the order dated 29.4.2011, the construction activities have not been stopped by respondents No. 5 and 6.
Thereafter, this Court passed detailed order on 6.9.2011 whereby the Deputy Commissioner, Kullu was directed to get the demarcation from Sub Divisional Magistrate, Kullu. The Court restrained respondents No. 2 and 3 from discharging their statutory duties since they had failed to get the orders dated 29.4.2011 complied with in letter and spirit. The demarcation report of the Sub Divisional Magistrate, Kullu was received by this Court. It was not found in order since the instructions issued by this Court and Financial Commissioner, Himachal Pradesh were not adhered to at the time of demarcation. In these circumstances, Sub Divisional Magistrate, Mandi was directed to get the land demarcated as per order dated 27.9.2011. Mr. Naresh K. Thakur and Mr. Lovneesh Kanwar, Advocates were requested to supervise the demarcation of the land. Respondents No. 5 and 6 were restrained from raising any further construction. The notice was also issued to the Executive Officer of the Municipal Council, Kullu, Sh. Mohinder Singh Thakur why false affidavit has been filed. He has also filed reply in sequel to order dated 27.9.2011.
Respondent-State has filed the supplementary affidavit in sequel to directions issued by this Court stating therein that Mohinder Singh Thakur, Executive Officer, Municipal Council, Kullu has been transferred to Municipal Council, Sunderangar. This Court has permitted Mohinder Singh Thakur to discharge the duties of Executive Officer, Municipal Council Sunderngar with a warning that he shall discharge his duties in accordance with law. The Court has directed the Registry to supply the copies of the demarcation report to the learned counsel appearing on behalf of the parties alongwith C.Ds. on 20.11.2011. Though the parties were not directed to file objections, but respondents No. 5 and 6 have chosen to file the objections to the report filed by the Sub Divisional Magistrate, Mandi.
Mr. R.L. Sood, Senior Advocate has strenuously argued that the construction raised by respondents No. 5 and 6 is in violation of the conditions enumerated in Annexure P-2 dated 8.9.2010 and Annexure P-3 dated 7.12.2010. He further argued that respondents No. 1 to 4 have failed to ensure due compliance of mandatory provisions of the Act and Himachal Pradesh Municipal Act. He further argued that respondents No. 1 to 4 are remiss in discharge of their statutory duties by permitting respondents No. 5 and 6 to raise the construction in violation of mandatory conditions. He has placed strong reliance upon the report submitted by the Sub Divisional Magistrate, Mandi, more particularly, with reference to the construction being raised by respondents No. 5 and 6 by not adhering to the set backs provided in Annexure P-2 dated 8.9.2010.
Mr. Vikas Rathore, learned Deputy Advocate General has argued that respondents No. 1 to 4 have acted strictly in accordance with law and the notice was issued to respondents No. 5 and 6 on 23.4.2011 to stop the construction forthwith. He then argued that respondent No. 4 has also now realized that the directions issued under the Act are mandatory and are to be followed scrupulously. He also argued that the dispute raised in the present petition could only be settled after obtaining the demarcation report. He has drawn the attention of the Court to Annexure P-7 whereby the Deputy Commissioner, Kullu was requested to direct the revenue authorities to get the khasra numbers demarcated at site as early as possible.
Mr. Navin K. Bhardwaj has argued that respondents No. 5 and 6 were advised to stop the construction activities as per letter dated 21.4.2011 and the spot was also inspected by the Executive Officer. He has referred to inspection report dated 2.5.2011 placed on record alongwith sketch.
Mr. Rajnish Maniktala has vehemently argued that the construction work carried out by his clients is strictly as per Annexures P-2 and P-3. He also argued that Annexure P-2 was only advisory in nature. He finally contended that the report of the Sub Divisional Magistrate, Mandi is not in accordance with law. He has referred to two sketches filed with the demarcation report to buttress his submission.
I have heard the learned counsel for the parties and have perused the pleadings carefully.
What emerges from the facts enumerated hereinabove is that the building permission was accorded to respondent No. 6 and her husband on 8.9.2010. The conditions contained in the building permission dated 8.9.2010 were mandatory and preemptory. The building permission granted by the Municipal Council, Kullu vide Annexure P-3 dated 7.12.2010 also contains conditions to be complied by respondents No. 5 and 6, more particularly, set backs. It was specifically stated therein that the set-backs be specifically mentioned.
The petitioner has brought to the notice of respondent No. 1 to 4 the violation of the building permission, i.e. Annexures P-2 and P-3 by respondents No. 5 and 6. It was mandatory on the part of respondent No. 2 to ensure that the construction raised by respondents No. 5 and 6 in violation of Annexure P-2 is stopped forthwith. Respondent No. 2 though has issued a notice to respondents No. 5 and 6 on 23.4.2011 but has failed to ensure due compliance of section 39 of the Act.
Section 30 of the Act provides the mechanism the manner in which the plan for development has to be made accompanied by such documents as may be prescribed. Section 31 deals with grant or refusal of permission. Section 38 provides that any person, who whether at his instance or at the instance of any other person commences, undertakes or carries out any development or changes use of land including in contravention of the permission granted or any condition subject to which such permission has been granted be punished with simple imprisonment for a term which extend to six months or with fine which may extend to two thousand rupees or with both and in case of continuance of offence with further fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the first commission of offence. Section 39 of the Act stipulates that where any development in any area has been carried out as indicated in section 38, the Director may, within ten years of such development serve on the owner a notice requiring him within 15 days from the date of service of notice in case the violation is u/s 38 (a) or (c) to restore the land to its existing before the said development took place and in case the violation is u/s 38 (b) and (d) to secure compliance with the conditions or with the permission as modified. The notice issued under sub-section (1) of section 39 may require the demotion or alteration of any building or works, the carrying out on land of any building or other operations or discontinuance any use of land under sub-section (2) of section 39. Sub-Section (3) of section 39 provides that any person aggrieved by such notice may within 15 days of the receipt of the notice, apply for compounding of offences u/s 39-C and till the time the application is disposed of, the notice shall stand withdrawn. In case as per subsection (5) of section 39, the notice has been withdrawn, but the offence is not compounded, the notice shall stand and if such offence is partly compounded, the notice shall stand withdrawn to the extent the offence is compounded, but shall stand in respect of the offence which is not compounded and thereupon the owner shall be required to take steps specified in the notice under sub-section (1) of section 39 in respect of the offence not compounded. Sub-section (6) of section 39 provides that if within the period specified in the notice or within the same period after the disposal of the application, the notice or so much of it as stands is not complied with, the Director may prosecute the owner for not complying with the notice and where the notice requires the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice and where the notice required the demolition or any alteration of any building or works or carrying out of any building or other operations itself, cause the restorations of the land to its condition before the development took place and secure compliance with the condition of the permission or with the permission as modified by taking such steps as the Director may consider necessary, including demolition or alternation of any building or works or carrying out of any building or other operations and recover the amount of any expenses incurred by him in this behalf from the owners as per the arrears of land revenue. Section 39 reads thus:
Power to require removal of unauthorized development.-(1) Where any development has been carried out as indicated in section 38 the Director may, within [ten years] of such development, serve on the owner a notice requiring him, within [fifteen days] from the date of service of the notice-
(a) in cases specified in clause (a) or (c) of section 38 to restore the land to its condition existing before the said development took place;
(b) in cases specified in clause (b) or (d) of section 38 to secure compliance with the conditions or with the permission as modified:
Provided that where the notice requires the discontinuance of any use of land, it shall be served on the occupier also.
(2) In particular, such notice may, for purpose of subsection (1), require-(a) the demolition or alteration of any building or works,
(b) the carrying out on land of any building or other operations, or
(c) the discontinuance of any use of land.
[(3) Any person aggrieved by such notice may within fifteen days of the receipt of the notice, apply for composition of offences u/s 39-C and till the time the application is disposed of, the notice shall stand withdrawn.];
(4) The foregoing provisions of this chapter, shall so far as may be applicable, apply to an application under subsection (3).
[(5) If the offence is compounded, the notice shall stand withdrawn, but if the offence is not compounded, the notice shall stand, or if such offence is partly compounded, the notice shall stand withdrawn to the extent the offence is compounded, but shall stand in respect of the offence which is not compounded, and thereupon the owner shall be required to take steps specified in the notice under subsection (1) in respect of the offence not compounded.].
(6) If within the period specified in the notice or within the same period after the disposal of the application, the notice or so much of it as stands is not complied with, the Director may,-(a) prosecute the owner for not complying with the notice and whether the notice requires the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice, and
(b) where the notice required the demolition or any alteration of any building or works or carrying out of any building or other operations itself, cause the restorations of the land to its condition before the development took place and secure compliance with the condition of the permission or with the permission as modified by taking such steps as the Director may consider necessary, including demolition or alteration of any building or works or carrying out of any building or other operations, and recover the amount of any expenses incurred by him in this behalf from the owner as arrears of land revenue.
(7) Any person prosecuted under clause (a) of subsection (6) shall, on conviction, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which the offence continues after conviction for the first commission of the offence.
The complete machinery has been provided under sections 39-A and 39-B of the Act the manner in which the construction work is required to be stopped if it is in violation of the building permission and the Act and Rules framed there-under. Sections 39-A and 39-B of the Act read thus:
[39-A. Power to stop development.- (1) Where any development in any area being commenced in contravention of the development plan or sectoral plan or without the permission, approval or sanction referred to in section 15-A(2), 16 or 31 or in contravention of any condition subject to which such permission, approval or sanction has been granted-
(i) in relation to a planning area or a special area, the State Government or an Officer of the State Government empowered by it in this behalf (ii) in relation to any other area within the local limits of a local authority, the competent authority thereof, may, in addition to any prosecution that may be instituted under this Act, make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly.
(2) Where such development is not discontinued in pursuance of the order under sub-section (1) the State Government or the officer of the State Government or the competent authority, as the case may be, may require any police officer to remove the person by whom the development has been commenced and all his assistants and workmen from the place of development or to seize any construction material, tools, machinery, scaffolding or other things used in such development within such time, as may be specified in the requisition and such police officer shall comply with the requisition accordingly.
(3) Any of the things caused to be seized by the State Government or the officer of the State Government or the competent authority, as the case may be, under sub-section (2) shall, unless the owner thereof turns up to take back such things and pays to the State Government or the officer of the State Government or the competent authority, as the case may be the charges for the removal or storage of such things, be disposed of by it or him by public auction or in such other manner and within such time as the State Government or the officer of the State Government or the competent authority thinks fit.
(4) The charges for the removal and storage of the things sold under sub-section (3) shall be paid out of the proceeds of the sale thereof and the balance, if any, shall be paid to the owner of the things sold on a claim being made therefor within a period of one year from the date of sale, and if no such claim is made within the said period, shall be credited to the fund of the State Government or the competent authority, as the case may be.
(5) If any development the area other than a planning area or the special area, has been commenced in contravention of the development plan or sectoral plan or without the permission, approval or sanction referred to in section 15-A(2), 16 or 31 or in contravention of any conditions subject to which such permission, approval or sanction has been granted and the competent authority has failed to make an order under sub-section (1) or, as the case may be, a requisition, under sub-section (2), within the time that may be specified in this behalf by the State Government, the State Government may, after observing such procedure as may be prescribed by rule made in this behalf, direct any officer to make the order or requisition, as the case may be, and that officer shall be bound to carry out such direction and the order or requisition made by him in pursuance of the direction shall be complied with accordingly.
(6) After the requisition under sub-section (2) or subsection (5) has been complied with, the competent authority or the officer to whom the direction was issued by the State Government under sub-section (5), as the case may be, may depute by a written order a police officer or an officer or an employee of the State Government or local authority concerned to ensure that the development is not continued.
(7) Any person failing to comply with an order under sub-section (1), or as the case may be, under sub-section (5), shall be punishable with fine which may extend to two hundred rupees for every day during which the noncompliance continues after the service of the order.
(8) No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development u/s 39 or the discontinuance of the development under this section.
(9) The provisions of this section shall be in addition to, and not in derogation of, any other provision relating to stoppage of building operations contained in any other law for time being in force.
39-B. Power to seal unauthorized development.- (1) It shall be lawful for the State Government or the competent authority, as the case may be, at any time, before or after making an order for the removal or discontinuance of any development u/s 39 or section 39-A to make an order directing the sealing of such development in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such development.
(2) Where any development has been sealed, the State Government or the competent authority, as the case may be, may, for the purpose of removing or discontinuing such development, order the seal to be removed.
(3) No person shall remove such seal except- (a) under an order made by the State Government or the competent authority under sub-section (2); or
(b) under an order of the appellate authority or the State Government made in an appeal under this Act].
[39-C. Power to compound offences.- (1) The Director may, on an application made to him, accept from any person who has committed an offence punishable under this Act, by way of composition of such offence, a sum of money as may be fixed by the State Government by rules.
(2) On payment of such sum of money to the Director, no further proceedings shall be taken against such person in respect of such offence.
The duty was cast upon respondent No. 2 to ask the police machinery to ensure that the construction being raised by respondents No. 5 and 6 is stopped. Respondent No. 4 was also remiss in discharge of duties initially by not getting Annexure P-7 dated 23.4.2011 implemented in letter and spirit.
Municipal Council has also failed to ensure due compliance of the building plan Annexure P-3 dated 7.12.2010 being adhered to by respondent No. 5 and 6. The action is required to be taken by the Municipal Authorities immediately when there is violation of the building plan. It is not required to wait till the completion of the building, as argued by Mr. Naveen Kumar K. Bhardwaj. The orders passed by the Executive Officer of the Municipal Council should have been couched in mandatory language and not advisory in nature, as per Annexure P-6. It shows laxity on the part of the Executive Officer, Municipal Council, Kullu, to ensure the strict compliance of the building plan, as per Annexure P-3 dated 7.12.2010.
Section 39-A provides for stopping of development. Section 39-B provides for sealing any unauthorized development. In the case in hand, respondents No. 1 and 2 have not taken any recourse either to section 38 or 39-B of the Act. It was open to respondents No. 1 and 2 to take action against respondents No. 5 and 6, under sections 38, 39, 39-A and 39-B. Respondent No. 2 has only issued notice u/s 38-A of the Act to stop the development and in case the development was not stopped to take action u/s 39-B. Respondents No. 5 and 6 have not even challenged the orders issued to them u/s 39-A of the Act as well as section 211 of the Municipal Act. Respondent No. 4 was also bound to stop the development as per bare provisions of section 39-A of the Act.
The Executive Officer has visited the spot as per reply on 2.5.2011 and has noticed deviation as mentioned hereinabove. The deviation noticed by the Executive Officer is in variance with the demarcation report furnished by the Sub Divisional Magistrate, Mandi. The Sub Divisional Magistrate, Mandi has noticed 78% deviation on the left side and 57.50% deviation on the rear side. It is thus evident that the report prepared by the Executive Officer, Municipal Council, Kullu, i.e. respondent No. 3 was not in accordance with law.
The Sub Divisional Magistrate, Mandi has carried out the demarcation as per guidelines/instructions issued by this Court and the Financial Commissioner. The statements of the parties have been annexed with the report. The Musabi and other revenue documents were consulted by the Sub Divisional Magistrate, Mandi. Respondent No. 5 has accepted the authenticity of the Musabi and map. Sh. V.N. Gupta, retired Naib Tehsildar resident of Akhara Bazazr, Kullu has confirmed the genuineness of the revenue record. The correctness of the measurement chain (Jareeb) was also ascertained by comparing the same with brass scale, which was having 5 karam length. Detailed survey was conducted to find out the nearby fixed points. These points were shown to the parties. After the completion of demarcation both the parties were apprised with the exact position of their land in the presence of learned counsel and the persons present on the spot and their statements to this effect were also recorded on the spot. The objection was raised by Mr. Vimal Sharma that he was not satisfied with the marks fixed between 9 and 5 karam of eastern side of khasra number 2731/187. However, it was established that demarcation of khasra No. 2731/187 has been carried out from all the sides and the dimensions of 9 and 5 karam on the spot were rightly fixed and the objection of Mr. Vimal Sharma was rejected by the Sub Divisional Magistrate. Respondent No. 5 has also raised objection that there was 9 feet wide path on the spot, which was removed by the petitioner and constructed building over there. However, on perusal of the revenue record on the spot there was no entry to this effect. Statements of respondent No. 6 and petitioner were also recorded. Petitioner was satisfied with the demarcation. According to the approved building plan, the built up area is 391.90 square meters. However, the constructed area as per the site is 400.72 square meters. There was deviation of 2.23%. The set backs as measured and reported by the Town and Country Planner and Executive Officer, Municipal Council Mandi, H.P. for all sides are as under:
Description Approved plan Constructed on the site Deviation
Front 15.90 Rmt 17.50 Rmt. -
Right 13.33 Rmt. av. 15.33 Rmt. av. -
Left 2.50 Rmt. av. 0.55 Rmt. av. 78%
Rear 2.82 Rmt av. 1.20 Rmt av. 57.50%
Thus, according to the report, there was enormous deviation in left and rear portions in the set backs.
Mr. Rajnish Maniktala has referred to 2 sketches to substantiate that large scale deviation in set backs is wrong. The report being in accordance with law is accepted.
Mr. Naveen K. Bhardwaj has argued that the action shall be taken against respondents No. 5 and 6 as per section 211 of the Municipal Act after the completion of the building. This plea of Mr. Naveen K. Bhardwaj is devoid of any merit. According to plain reading of section 211 of the Municipal Act, the action can be taken against the defaulter if the construction is commenced and carried out in violation of building plan. The Municipal Council need not wait till the completion of the building. Section 211 provides the complete mechanism and empower the Municipal Council to take action against the persons, who have initiated and started raising construction in violation of the Municipal Act and Bye-Laws. The manner in which the notice is to be served upon the persons and the action to be taken therein by the Municipal Council is provided u/s 211. Right of appeal is also provided to the aggrieved person. The Municipal Council, i.e. respondent No. 3 has not implemented section 211 strictly to stop construction raised by respondents No. 5 and 6 in violation of mandatory provisions of law.
Mr. Rajnish Maniktala has also argued that there is a provision of compounding of deviation. It is true that there is a provision of compounding of deviation, but it cannot be more than 10%.
The matter is required to be looked into from another angle. The Municipal Council is required to ensure due compliance of the building plans at each and every stage. It need not wait to take action till the completion of the building. The policy of Municipal Corporation to wait till the completion of the building and to forfeit only the security amount, which is deposited, is contrary to the letter and spirit of the H.P. Municipal Act. The Court can take judicial notice of the fact that large scale constructions are being carried out throughout the State of Himachal Pradesh in violation of the approval/sanctions and the Municipal Councils. Once the law has been enacted, it must be scrupulously followed and if there is laxity, it erodes the accountability of the Government. The rule of law is required to be maintained by all the concerned authorities, which are responsible for implementing the law.
Their Lordships of the Hon�ble Supreme Court in Friends Colony Development Committee Vs. State of Orissa and Others, have held that deviation from sanctioned plan and its regularization by compounding is by way of an exception and not as a rule. Their Lordships have further held that it should be kept as a bare minimum and further deviation should not be condoned and compounded. Their Lordships have further held that application of compounding such deviation should always be dealt with by a multi-membered High Powered Committee. The Officers conniving at such deviations should not be spared. Their Lordships have held as under:
The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often ail in discharging their duty. Either they don''t act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorised constructions, but who failed in doing so either by negligence or by connivance.
The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built-up area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorised. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. (For a detailed discussion reference may be had to the chapter on "Zoning and Planning" in American Jurisprudence, 2d, Vol. 82.)
Their Lordships of the Hon�ble Supreme Court in Royal Parasdise Hotel (P) Ltd. Vs. State of Haryana and Others, have held that it is the time that message goes abroad that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of he High Courts to ensure that such defiers of law are not rewarded. Their Lordships have further held that compounding of offences is permissible only in case of marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of law and not when the violations are deliberate, designed, reckless or motivated. Their Lordships have further held that regularization is not the rule but a rare exception. Their Lordships have held as under:
It is clear from the statement of the synopsis and list of dates furnished by the appellant itself, that on 4.2.1998, Mr. Chawla, who put up the construction before it was sold to the appellant received a notice u/s 12 of the Act informing him of contravention of Section 3 or Section 6 and of violation of Section 7(1) and Section 10 of the Act and directing him to stop further construction. When it was found that the appellant was defying the direction to stop, an order was passed on 26.2.1998 under sub-section (2) of Section 12 of the Act directing him to remove the unauthorized construction and to bring the site in conformity with the relevant provisions of the Act on finding that there was clear violation of Section 7 and Section 10 of the Act. On 16.3.1999, another notice was issued to Mr. Chawla mentioning therein that there is a contravention of Section 7(1) or Section 10 of the Act and directing removal of the unauthorized construction. The copies of the original notices are produced by the respondents along with the counter affidavit filed on behalf of the respondent Nos. 1 to 3. Though the copies of such notices have been produced by the appellant also, we find that there are some omissions in the copies produced on behalf of the appellant. Whatever it be, the fact remains that the construction was made in the teeth of the notices and the directions to stop the unauthorized construction. Thus, the predecessor of the appellant put up the offending construction in a controlled area in defiance of the provisions of law preventing such a construction and in spite of notices and orders to stop the construction activity. The constructions put up are thus illegal and unauthorized and put up in defiance of law. The appellant is only an assignee from the person who put up such a construction and his present attempt is to defeat the statute and the statutory scheme of protecting the sides of highways in the interest of general public and moving traffic on such highways. Therefore, this is a fit case for refusal of interference by this Court against the decision declining the regularization sought for by the appellant. Such violations cannot be compounded and the prayer of the appellant was rightly rejected by the authorities and the High Court was correct in dismissing the Writ Petition filed by the appellant. It is time that the message goes aboard that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of High Courts to ensure that such defiers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it.
We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in refusing the request of the appellant.
Their Lordships of the Hon�ble Supreme Court in Delhi Airtech Services Private Limited and another versus State of Uttar Pradesh and another, (2011) 9 SCC 354 have held that the concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Their Lordships have further held that public officers are answerable for both their inaction and irresponsible actions and if what ought to have been done is not done, responsibility should be fixed on the erring officers, then alone the real public purpose of an answerable administration would be satisfied. Their Lordships have held as under:
The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In the case of Center for Public Interest Litigation and Another Vs. Union of India (UOI) and Another, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.
This Court had directed the Director (Urban Development) why the Executive Officer, Mohinder Singh Thakur was retained at Kullu for more than three years. The Director has filed the supplementary affidavit stating therein that Sh. Mohinder Singh Thakur has been shifted to Municipal Council, Sundernagar. In view of this, respondent No. 3 is permitted to discharge his duties as Executive Officer strictly in accordance with law and observations made against him are expunged. Initially, the petitioner had given the name of Assistant Town Planner, Kullu, as Ms. Dinesh Latta Guleria, but later on it transpired that the person, who was remiss in discharge of his duties, was Sh. O.P. Sharma. This Court had also restrained the Assistant Town Planner, Ms. Dinesh Latta Guleria from discharging her duties. However, Ms. Dinesh Latta Guleria is working as Town Planner and she is permitted to discharge her duties, but suitable action is required to be taken against Sh. O.P. Sharma, who was the then Assistant Town Planner and was remiss in discharge of his statutory duties.
Respondent No. 2 was also directed to produce the record. It is clear from the record that the order dated 23.4.2011 was sent to respondents No. 5 and 6, as per the noting dated 30.4.2011. Respondent No. 5 has apprised the authorities on telephone that he has received the notices on 26.4.2011 and the reply has been filed on 28.4.2011 through registered A.D. post. A startling revelation has been made from this noting portion whereby respondent No. 5 has told the authorities that the construction could not be stopped on the orders of this Court though the photocopy of the order of status quo passed by this Court was retained by Vimal Sharma. This shows total defiance on the part of respondents No. 5 and 6. In these circumstances, it was necessary for all the authorities concerned to see that the order passed by this Court is implemented to ensure that no construction is raised by respondents No. 5 and 6. In fact, the petitioner had also sent a communication to the Assistant Town Planner on 30.4.2011 to ensure that no construction is carried out by respondents No. 5 and 6 after the orders passed by this Court. However, very very surprisingly, the Superintendent of Police, i.e. respondent No. 4 instead of complying with the directions issued to him, has insisted that the order will be implemented as and when the same is received in form XVII-B requesting the Station House Officer, Police Station, Sadar, Kullu in a communication sent to the Assistant Town Planner dated 30.4.2011. Text of letter dated 30.4.2011 reads thus:
Kindly refer to your letter No.DTP (K) UAC No. 1130/11-158-62 dated 23.4.2011 and High Court of H.P., Shimla CWP case No. 2697/2011 orders dated 29.4.2011.
This office is duty bound to provide all assistance under "The Himachal Pradesh Town and Country Planning Act, 1977" and "The Himachal Pradesh Town and Country Planning Rules, 1978" as mentioned section 39-A and Rule 19-B, as and when order in form XVII-B, requesting the Station House Officer of Police Station Sadar Kullu, is received.
In fact, respondent No. 5 has also sent the communication to the Assistant Town Planner. The copy of the same is on record. The text of the same reads thus:
With due respect I received a notice from your office on dated 26th April 2011 regarding the construction of a commercial building at Khasra No. 2731/187. That the construction is going in contravention of the Town and Country Planning Act.
However, it is submitted to your kind notice that the map has already been passed and the requisite fee has already been deposited to your office. Sir on dated 23rd April, 2011 the team from the office of Town and Country Planning and your office has issued the notice u/s 39-A(1) of the TCP Act. However, we have taken every care and caution to abide by the rules and regulation of the TCP Act and have constructed the building as per the map submitted to the office. Even if there are some discrepancies then those discrepancies may very kindly be compounded so we may continue the work. I am sorry to say but it appears you are acting under some political pressure to harass us as whole of the construction being done by me is well within out land and is as per norm. Because we have spent more than rupees 35 lakhs.
At this stage we cannot stop construction and if you stop our work for minor deviations then we"ll be compelled to approach the court of law and for the loss so incurred you may be held liable. So kindly allow us to continue the construction work peacefully.
I shall be highly thankful to you.
It again shows defiance on the part of respondent No. 5 by not stopping the construction work.
In view of the observations made hereinabove, it is evident that the construction being raised by respondents No. 5 and 6 is unauthorized and suitable action is required to be taken against them in accordance with law.
Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents No. 1 and 2 are directed to take action against respondents No. 5 and 6 under sections 38, 39, 39-A and 39-B of the Himachal Pradesh Town and Country Planning Act, 1977. Respondent No. 3 is also directed to take action against respondents No. 5 and 6 as per section 211 of the Himachal Pradesh Municipal Act, 1994. The action taken under the Himachal Pradesh Town and Country Planning Act, 1977 and Himachal Pradesh Municipal Act, 1994 shall be as per the law laid down by their Lordships of the Hon�ble Supreme Court cited hereinabove. Respondent No. 4 is directed to ensure that till the action is taken and proceedings are concluded against respondents No. 5 and 6, no further construction is raised by them. Respondents No. 1 to 3 are directed to complete the proceedings within a period of three months from today and file a compliance report after three months. It is further directed that the expenditure incurred towards Local Commissioner�s report shall be borne by the petitioner and respondents No. 5 and 6 proportionately. Respondents No. 5 and 6 shall deposit the same with the Registry of this Court within a period of four weeks from today. Pending application(s), if any, also stands disposed of. No costs.
COPC No. 397/2011
Notices were issued to the respondents on 6.9.2011 why contempt proceedings be not initiated against them for willfully disobeying the orders passed by this Court on 29.4.2011. Initially, Ms. Dinesh Latta Guleria was added as respondent, however, it transpired that at the relevant time Assistant Town Planner was Sh. O.P. Sharma. Consequently, Ms. Dinesh Latta Guleria was substituted by respondent No. 1. The respondents have filed the replies. They have tendered unconditional and unqualified apologies. The apologies are accepted but the respondents are warned to be more careful in future.
Accordingly, the proceedings are closed. Notices are discharged.