Himachal Pradesh High Court
Promil Goyal vs State Of H.P. & Ors on 22 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 772 of 2010.
Reserved on 02.08.2016
Date of Decision: 22.08.2016.
______________________________________________________
.
Promil Goyal .........Petitioner.
Versus
State of H.P. & Ors. .......Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
of
For the petitioner: Mr. Sunil Mohan Goel,
Advocate.
rt
For the respondents: Mr. Rupinder Singh Thakur,
Additional Advocate
General with Mr. Rajat
Chauhan, Law Officer.
Sandeep Sharma, J.
By way of present petition, filed under Article 226 of the Constitution of India, petitioner has prayed for following relief(s):-
A) This Hon'ble Court may kindly be pleased to issue a writ of Certiorari quashing appellate order 31.07.2009 issued by respondent No. 1 Annexure-
P10 and demand notice dated 16.07.2007 Annexure - P8 issued by respondent No. 2. B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus directing the 1 Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 2respondents to issue demand notice by calculating compounding fee on the basis of calculations mentioned in Rule 19(e) of the H.P. Town and Country Planning Rules, 1977 or alternately as per Rule 12 of the H.P. Town and .
Country Planning Rules, 1977 as it existed at the time of the petitioner submitting her application i.e. on 3.10.2006.
C) This Hon'ble Court may kindly be pleased to issue a writ of mandamus directing the of respondent State to produce before this Hon'ble Court the relevant record of the case and to pay to the petitioner the cost of the case.
rtD) Any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner."
2. Petitioner, being aggrieved with order dated 31st July, 2009, passed by Appellate Authority under Section 32 of Himachal Pradesh Town and Country Planning Act, 1977, whereby her appeal was rejected, has approached this Court by way of present petition praying for reliefs as has been reproduced here-in-above.
3. Facts as emerged from the record are that petitioner being owner in possession of land measuring 6 bighas, 6 biswas situated in Hadbast No. 204, Khata Khatauni No. 157/165 min, Khasra No. 839/1/2 and 11 ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 3 biswas, khata khatauni No. 102/105 min, khasra No. 1157/812/1 situated in Mauza Baddi, Shitalpur, District Solan, H.P., applied for grant of permission to raise .
construction over the land, detail whereof has been given above, on 3.10.2006 under the relevant provisions of H.P. Town and Country Planning Act, 1977.
4. It is admitted case of the petitioner that since of processing of her application was taking time, she commenced raising construction of the warehouse in anticipation of grant of permission in her favour in rt accordance with law. Petitioner also placed on record application dated 3.10.2006 (Annexure P-1) filed by her for raising construction. It also emerges from the record that no permission, whatsoever was granted to the petitioner pursuant to application dated 3.10.2006 and there were objections raised on her application. Petitioner was called upon by the Department orally to apply for compounding by making an application alongwith Form XVII-D for regularization of the said construction. Accordingly, petitioner after removing objections applied for composition of offence in terms of provision of H.P. Town and Country Planning Act, 1977, on 23.11.2006 (Annexure -
P2). Thereafter, vide communication dated 23.11.2006, ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 4 Director, Town and Country Planning asked the petitioner to submit her case for regularization in Form XVII-D, which she had already complied with in terms of advised .
rendered to her. Records further reveals that State of Himachal Pradesh constituted Baddi Batoriwala Nalagarh Development Authority (Respondent No.2), which was made responsible for looking after the development of of Baddi Barotiwala and Nalagarh areas and power of the Town & Country Planning Department were transferred to aforesaid rtauthority. As per petitioner, pursuant to constitution of Baddi Batoriwala Nalagarh Development Authority, she received communications dated 29.12.2006 (Annexure-P4) calling upon her to visit office for discussion on her case for regularisation of the construction, but facts remains that vide communication dated 09.01.2007 (Annexure -P5), she was informed that her case for regularisation stands rejected.
5. Being aggrieved with the passing of order dated 09.01.2007, petitioner preferred representation/ appeal before respondent No. 1 in terms of Section 32 of H.P. Town & Country Planning Act, 1977, which was allowed by respondent No. 1 vide order dated 14.6.2007 (Annexure -P6) with the direction to CEO, BBNDA to ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 5 regularize the construction by charging compounding fees for the structure and also fees for change of land use as per relevant provision of TCP Act & Rules.
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6. Pursuant to aforesaid order passed by Appellate Authority i.e. Principal Secretary, Town and Country Planning, Govt. of H.P., petitioner vide communication dated 13.07.2007 (Annexure -P7), of requested respondent to intimate to her the compounding fees as calculated as per the schedule given under Rule 19 (e) of The Himachal Pradesh Town rt and Country Planning Rules, 1978. Accordingly, in response to aforesaid letter sent by petitioner, she received demand notice, dated 16.07.2007 (Annexure -
P8) whereby, she was called upon to deposit a sum of Rs.
21,54,953/- as compounding fees. After receipt of aforesaid demand notice petitioner contacted the respondent No. 2 to know what are the basis for making calculation as contained in letter dated 16.07.2007. As per petitioner, amount demanded was exorbitant and unreasonable and as per the calculation made by petitioner, she was not to pay this much amount as per the compounding fees which was to be calculated in terms of H.P. Town and Country Planning Rules. The ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 6 petitioner stated that exercise of determining compounding fees was also undertaken by respondent No. 2 Authority earlier qua the same construction and the .
fees calculated was Rs. 4,45,846/- but facts remain that there is no document in support of aforesaid contention of the petitioner. However, respondent No. 2 intimated the petitioner that the calculation has been made on the of basis of notification dated 26.02.2007 (Annexure -P7/A) whereby rates have been enhanced. Petitioner submitted to the Authority concern that notification dated 26.02.2007 rt could not be made applicable in her case, since her case was pending prior to the aforesaid notification came into force. Petitioner claimed that notification being relied upon by the respondent pertained to amended Rule 12 of H.P. Town and Country Planning Rules, which deal with submission of application for development of land, whereas the case of the petitioner was for compounding.
Since no satisfactory reply was received by the petitioner from the authority, she challenged the action of the respondent by way of filing appeal before the Principal Secretary, Town and Country Planning, Govt. of H.P. (Annexure P-9) specifically stating therein that petitioner was to be charged compounding fees as per Section ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 7 19(e) of the Himachal Pradesh Town & Country Planning Rules, 1978 and not as per Section 12 as has been done in the case of the petitioner. But record reveals that .
representation/appeal filed by the petitioner before Principal Secretary (TCP) was rejected by respondent No. 1 vide order dated 31.07.2009 on the ground that penalty imposed as per notification dated 26.02.2007 is correct of and the same was in force on the date of announcement of order.
7. rtIn the aforesaid background, petitioner being aggrieved with passing of order dated 31.07.2009, on her representation/appeal, by Principal Secretary, Town and Country Planning, Govt. of H.P. approached this Court praying therein for issuance of writ certiorari quashing order dated 31.07.2009 issued by respondent No. 1 and demand notice dated 16.07.2007 issued by respondent No. 2. Though petitioner also prayed to issue writ of mandamus directing the respondents to issue demand notice by calculating compounding fees on the basis of calculations mentioned in Rule 19 (e) of the H.P. Town and Country Planning Rules, 1977 or alternately as per Rule 12 of the H.P. Town and Country Planning Rules, 1977 as existed at the time of submission of application by ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 8 petitioner i.e. 3.10.2006. But it may be noticed that at this stage, at the time of final arguments, counsel representing the petitioner fairly conceded that Rule 19 (e) and Rule 12 .
of H.P. Town and Country Planning Rules, 1977 have been rightly applied in the case of the petitioner and, as such, he won't be pressing his relief No. 2 at this stage.
8. Respondents No. 1 to 3 by way of reply of refuted the averments contained in writ petition by stating that petitioner had submitted an application for grant of planning permission for construction of a godown on land rt comprising of khasra nos. 839/1/2 and 1157/812/1, mauza Baddi, Shitalpur, Tehsil Nalagarh (now Baddi), but in the meantime on 9.10.2006, a written complaint was received from the residents of village Baddi, Shitalpur, in which it was alleged that an industrial unit was being raised unauthorizedly by the petitioner. Accordingly, site was inspected and it was observed that construction/ development activity has been started at site without seeking prior permission under the Himachal Pradesh Town and Country Planning Act, 1977, accordingly, notice under provisions of Section 39-A(i) of the Act ibid was issued to the petitioner vide letter dated 17.10.2006. But on 26.2.2006 a case was submitted by the petitioner for ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 9 retention of the building unauthorisedly constructed by her in response to the notice issued by the replying respondent.
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9. In the nutshell, respondents refuted the averments of the petitioner that she started raising construction of the warehouse in anticipation of the grant of permission, which was taking time. As per respondent, of when application or grant of planning permission was submitted by the petitioner on 3.10.2006, she had already started construction / development activity at site as was rt verified through site inspection by the replying respondent, on the basis of which a notice under Section 39-A(i) of the Act ibid was issued. Respondent further submitted that petitioner had already started the construction of godown before the submission of application on 3.10.2006, whereas a written complaint was received from the resident of village Baddi Shitalpur on 9.10.2006.
Respondent also admitted that shortcomings, which were observed in the application were conveyed to the petitioner vide letter dated 23.11.2006. Respondent also admitted that on 29.12.2006, letters were written to the petitioner as well as Pradhan, Gram Panchayat, Haripur Sandholi to personally appear before the respondent so ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 10 as to discuss the matter. Accordingly, personal hearing was given to the interested parties and opinion was formed on the basis of discussion as well as site inspection .
carried out on 28.12.2006. Thereafter, petitioner's case for grant of planning permission/ regularisations of construction was finally refused by the respondent vide letter dated 9.01.2007 on the ground that construction of has been raised without seeking prior permission under TCP Act, land use has been un-authorisedly changed and is also non-conforming as per DP/IDP Barotiwala and rt coverage is exceeding the permissible limits. Respondent specifically stated that case submitted by the petitioner was refused by the respondent No.2 vide letter dated 09.01.2007. Being aggrieved, against the refusal order dated 9.1.2007, petitioner preferred an appeal before the Appellate Authority in terms of Section 32 of the Himachal Pradesh Town & Country Planning Act, 1977, which was allowed by the Principal Secretary (TCP) to the Govt. of H.P., directing Baddi Barotiwala Nalagarh Development Authority to regularize the construction by charging fees as per prevalent provisions of the Himachal Pradesh Town & Country Planning Act & Rules, vide order dated 14.06.2007. Respondent further stated that in terms of ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 11 order passed by the Principal Secretary (TCP) to the Govt.
of H.P., a demand notice was issued by the respondent requiring the petitioner to deposit a fee of Rs. 21,24,953/-
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as per the provisions of Himachal Pradesh Town and Country Planning Rules, 1978 and as such there is no illegality, whatsoever in the demand notice raised by the respondent.
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10. Respondents also refuted the claim of the petitioner that he was asked to deposit the Rs. 4,45,846/-, respondents further stated that at the relevant time the rt fees was indeed worked out by the technical dealing hand i.e. Junior Engineer in the noting sheet of the case file of petitioner on 07.12.2006 calculated on prevailing rate. However, in the meanwhile State Government notification No. TCP-A(3)1/2005, dated 26.02.2007 notified new rates for fees to be deposited for development of land, accordingly, the fees of Rs. 21,24,953/- was worked out in July, 2007 as per new rates of fees. Respondent also stated that the plea of the petitioner that only compounding fees as per Section 19(e) of the Himachal Pradesh Town and Country Planning Rules, 1978 is to be charged, is wrong and fees as per Section 12 of the Rules is simultaneously to be charged. As per respondents, fees ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 12 charged under Section 19 (e) is over and above the fees under Section 12 for undertaking development without obtaining prior planning permission from replying .
respondent.
11. Shri Sunil Mohan Goel, counsel representing the petitioner, vehemently, argued that impugned order is bad in law and same is not based upon the correct of appreciation of the facts and circumstances of the case.
Mr. Goel, vehemently argued that demand note raised by the respondent vide order 16.7.2007 is wholly unjustified in rt the case of the petitioner because the same is based upon rates prescribed in the notification dated 26.2.2007 and it could not be made applicable in the case of the petitioner. Mr. Goel contended that since the case of the petitioner was not for fresh grant of development permission, rather it was the case for compounding which was covered by the provisions of Section 19(e) of Town and Country Planning Rules, 1978, there is no justification whatsoever, in applying rates prescribed in notification dated 26.2.2007. Mr. Goel also contended that while issuing aforesaid demand note, respondent No. 3 has failed to take note of the fact that petitioner had applied for compounding before the issuance of notification ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 13 dated 26.2.2007 and the case of the petitioner remained pending till passing of order dated 14.06.2007 by Principal Secretary, Town and Country Planning to the Govt. of H.P. .
in appeal filed under Section 32 of H.P. Town and Planning Act, as such notice issued by respondent No. 3 needs to be quashed and set aside. During arguments having been made by him, Mr. Goel invited the attention of this of Court to order passed by the Secretary (TCP) on the representation/ appeal filed by petitioner under Section 32, wherein while rejecting the appeal, Secretary (TCP) rt observed that any leniency in favour of the petitioner would give wrong message, which may be cited by the other violators/builders in future, to demonstrate that Secretary (TCP) failed to apply his mind while deciding appeal vide order dated 31.07.2009, because at no point of time petitioner had prayed for leniency, rather she had prayed for compounding of structure raised by her, on the basis of Statutory Rules, governing compounding. Mr. Goel, while referring to the impugned order passed by Secretary (TCP) in appeal also stated that, it nowhere discloses that grounds raised by the petitioner were ever dealt with by the Secretary (TCP) while rejecting the appeal preferred by him because no finding has been ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 14 rendered on the plea of the petitioner with regard to applicability of notification. While concluding his arguments, Mr. Goel forcibly contended that in the .
impugned order, there is no judicial evaluation of the contentions put-forth by parties to appeal and there is no independent decision based on such judicious evaluation, as such, same needs to be quashed and set aside. Mr. of Goel prayed that keeping in view the fact that petitioner had made application for compounding well before the issuance of notification dated 26.02.2007, respondent rt needs to be restrained from making demand as per rates applicable in notification dated 26.02.2007. However, at the cost of repetition, it may be stated here that during arguments having been made by him Mr. Goel, fairly stated that Rule 19(e) as well as Rule 12 of H.P. Town and Country Planning Rules, 1978 are applicable in his case as such he does not want to press second relief claimed in petition at this stage.
12. I have heard the learned Counsel for the parties and have carefully gone through the records.
13. Since, Mr. Goel fairly stated that Section 19(e) as well as 12 of the Town and Country Planning are applicable in this case, this Court need not to look into the ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 15 validity and relevancy of the same in the present case. It is undisputed that petitioner without applying for permission for construction of warehouse over her land, description .
whereof given here-in-above, started raising construction and thereafter on being pointed out by the respondent authority, she vide communicated dated 3.10.2006 applied for permission for raising construction over her of land. It is also undisputed that on 23.10.2006, petitioner made application alongwith form XVII-D under Town and Country Planning Rule for regularisation of construction rt carried out by her. Further perusal of letter dated 9.1.2007 clearly suggests that case for the petitioner for regularisation was rejected by respondent No. 2 authority compelling him to prefer an appeal before Appellate Authority i.e. Secretary, Town and Country Planning on 22.1.2007. But in between Town and Country Planning Department, Govt. of H.P. vide notification dated 26.2.2007 notified Himachal Pradesh Town and Country Planning (Amendment) Rules, 2007, whereby Rule 12 of the H.P. Town and Country Planning was amended and fresh rates were prescribed for compounding of the construction raised without taking permission from the Town and Country Planning. On 14.06.2007, appeal filed ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 16 by the petitioner was considered by the Appellate Authority on the basis of material available to him and passed the following orders:-
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"Subject: Appeal under Section -32 of the HP Town & Country Planning Act, 1977 filed by Smt. Promil Goyal w/o Shri Dinesh Goyal, r/o Baddi, Distt. Solan, H.P. Sir, I am directed to refer to your letter No. BBNDA/Baddi/Case No. 1716/-Camp, Shimla, dated of 05.02.2007 on the subject noted above and to say that in the appeal case of Smt. Promil Goyal w/o Shri Dinesh Goyal, r/o Baddi, Distt. Solan, the Principal rt Secretary (TCP) to the Government of Himachal Pradesh has passed the following orders:-
After hearing both the parties and also on the basis of spot inspection, since the building has already been constructed on the plot in anticipation of TCP approval, demolishing of the structures will not serve purpose. Therefore, the appeal is allowed and the CEO, BBNDA shall regularize the construction by charging compounding fees for the structure and also fees for change of land use as per relevant provision of TCP Act & Rules.
You are, therefore, requested to take further necessary action accordingly.
Yours faithfully, sd/-
Under Secretary (TCP) to the Government of Himachal Pardesh"::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 17
14. Careful perusal of the aforesaid order passed by the Principal Secretary (TCP) to the Government of Himachal Pradesh on the appeal filed by the petitioner .
under Section 32 of H.P. Town and Country Planning Act, 1977, suggests that Appellate Authority came to the conclusion that since building has already been constructed over the land in anticipation of TCP approval, of the demolition of structure would not serve any purpose, accordingly directed the CEO, BBNDA to regularize the construction by charging compounding fees for the rt structure and also fees for change of land use as per relevant provision of TCP Act & Rules. After passing of aforesaid order, Town and Country Planning Department, issued payment notice dated 16.07.2007 calling upon the petitioner to deposit a sum of Rs. 21,24,953/- pursuant to application dated 16.07.2007 filed by the petitioner for planning permission / change of land use / NOC for water / Electricity / NOC for land under Section 118.
15. Careful perusal of order dated 16.7.2007 (Annexure P-8) suggests that pursuant to passing of order in appeal, petitioner Smt. Promil Goyal filed fresh application dated 16.7.2007, praying therein for planning permission / change of land use / NOC for ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 18 water/Electricity/NOC for land under Section 118, accordingly, respondent vide payment notice, called upon the petitioner to deposit the sum of Rs. 21,24,953/- for .
grant of such permission/change of land use/NOC for water/Electricity in the shape of demand draft in favour of the Chief Executive Officer, BBNDA, Baddi, payable at Baddi, H.P. of
16. Being aggrieved and dis-satisfied with the aforesaid demand notice issued by respondent No. 2, petitioner assailed the same on the ground that her case rt for compounding could not be considered in terms of rates prescribed under notification dated 26.2.2007 because she had applied for grant of permission for construction of warehouse firstly on 3.10.2006 and thereafter on 23.10.2006 on Form XVII-D in terms of advise received from respondent No. 3 Department. Petitioner also claimed that since her case was rejected on 9.6.2007, she had filed appeal before the Appellate Authority, who vide order dated 14.6.2007 allowed the same and directed the BBNDA to regularize the construction by charging compounding fees for the structure and also fees for change of land use as per relevant provisions of TCP Act and Rules, meaning thereby, rates prevalent at ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 19 the time of filing first application i.e. 3.10.2006 and 23.11.2006, were to be applicable in her case and as such any calculation on the basis of notification dated .
26.2.2007 could not be made applicable in the case of the petitioner while regularising the case of the petitioner in terms of order dated 14.6.2007 passed by the Secretary (TCP).
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17. In view of above, this Court needs to ascertain "whether notification dated 26.02.2007 issued by respondent-Department would be applicable in the case rt of the petitioner for calculating compounding fees for regularisation of the construction raised by the petitioner without permission or not."
18. Though perusal of order dated 14.06.2007 passed in appeal by the Principal Secretary (TCP) suggests that appeal preferred by the petitioner was allowed and CEO, BBND, Baddi was ordered to regularise the construction by charging fees for structure and also fees for change of land use but in terms of relevant provisions of TCP Act & Rules, meaning thereby, case, if any was to be considered by the BBND for regularisation of construction by charging compounding fees for structure and also fees for land use strictly in terms of TCP Act & ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 20 Rules in vogue. In the present case, admittedly when order dated 14.6.2007 was passed, notification dated 26.2.2007 was already in existence, wherein new rates were .
prescribed for compounding. As per respondent since directions was issued on 14.6.2007 to regularize the construction of the petitioner by charging compounding fees as per relevant provisions of TCP Act & Rules, they of rightly calculated the compounding fee in terms of notification dated 26.2.2007 issued by State of H.P., as such, there is no fault, if any, can be found with the rt calculation made by them while issuing impugned demand notice.
19. After bestowing thoughtful consideration to the material available on record as well as submissions having been made by the petitioner, this Court is of view that bare perusal of the demand notice dated 16.7.2007 clearly suggests that pursuant to decision passed by the Appellate Authority on 14.6.2007, petitioner filed fresh application dated 16.07.2007 for grant of permission, meaning thereby, petitioner applied afresh on 16.7.2007 for planning permission and change of land use.
Admittedly, at the time of filing application dated 16.07.2007, notification dated 26.2.2007 was in existence ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 21 and as such respondents rightly calculated the compounding fees in terms of rates prescribed in notification dated 26.2.2007. Otherwise also, it clearly .
emerge from the record that petitioner had started raising construction without there being any permission from TCP Department, and for the first time on 3.10.2006, petitioner applied for grant of permission for raising construction of of warehouse over land. Thereafter, petitioner vide communication dated 23.10.2006 made an application to Town andrt Country Planning for regularisation of construction carried out by her, but fact remains that ultimately vide order dated 9.6.2007, case of the petitioner for regularisation of construction was rejected by respondent no. 2, meaning thereby at the time of issuance of notification dated 26.2.2007, no case of the petitioner for regularisation of construction was pending before the Town and Country Planning Department and as such petitioner cannot be allowed to claim that since her case for regularisation was pending at the time of issuance of notification dated 26.2.2007, old rates prevalent at that time were to be made applicable while calculating compounding fees in the case of petitioner.
Admittedly on 22.1.2007, petitioner preferred an appeal ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 22 against order dated 9.1.2007, whereby her case for regularisation of construction was rejected but fact remains that appeal was decided on 14.6.2007 i.e. after .
issuance of fresh notification dated 26.2.2007. Moreover, perusal of order dated 14.6.2007 clearly suggests that appellate authority taking note of the fact that petitioner has already carried out the construction over the land in of anticipation of grant of permission by TCP, observed that demolition of structure will not serve any purpose and directed the Chief Executive Officer BBNDA to regularise rt the construction by charging compounding fees for the structure and also fees for change of land use as per relevant provisions of Act & Rules. Accordingly, authorities calculated the compounding fees for structure and for change of land use as per relevant provisions of TCP Act & Rules in vogue. Since order dated 14.6.2007 was passed after issuance of notification dated 26.2.2007, this Court is unable to accept the contention put-forth on behalf of the petitioner that old rates prevalent before the issuance of notification dated 26.2.2007 were required to be made applicable in the case of the petitioner. Since on 14.6.2007, notification dated 26.2.2007 was already in existence, this Court sees no illegality and infirmity in the ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 23 demand notice issued by the respondent calling upon the petitioner to deposit Rs. 21,24,953/- on the basis of rates prescribed in notification dated 26.2.2007. Learned .
Appellate Authority-cum-Principal Secretary while deciding appeal under Section 32 of H.P. Town and Country Planning Act, preferred by the petitioner rightly held "that there was willful violation of obtaining legitimate of prior permission before raising construction and there is no force in the argument that planning permission was applied for prior to the judgment, as that permission was rt also not accorded". This Court also sees no illegality in observations made by the Appellate Authority that any leniency in imposing fees will create a wrong precedent, which may be cited by the other violators/builders in future, because admittedly in the present case petitioner without taking any permission of authorities raised construction over the land and thereafter on being pointed out applied for the regularisation of illegal construction, which was also rejected before the issuance of notification dated 22.6.2007 and as such this Court is not inclined to accept the aforesaid contention put-forth on behalf of the petitioner. It is well settled principle of law that effect of "notification" is always prospective unless ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 24 something contrary specifically provided in the same. In the impugned notification dated 26.2.2007, there is no mention with regard to old cases, which were pending .
before the authorities before issuance of notification, meaning thereby that compounding fee in all cases pending for regularisation were to be considered/calculated in light of rates prescribed in of notification dated 26.2.2007.
20. At this stage, counsel representing the petitioner stated that as per Section 6 of General Clauses rt Act, the case of the petitioner was required to be dealt in accordance with the previous notification which was prevalent at the time of making application for regularisation and not by the notification which was admittedly issued after filing of application for regularisation by the present petitioner. The Section 6 of General Clauses Act, 1897, is reproduced here-in-below:
"6.Effect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect;or ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 25
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any .
enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or of remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, rt and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
21. This Court perusing aforesaid Section 6 of General Clauses Act respectfully intends to differ with the aforesaid contention raised by the counsel representing petitioner, simply for the reason that at the time of issuance of notice dated 22.6.2007, no right, whatsoever had accrued in favour of the petitioner for grant of regularisation of construction illegally carried out by her in anticipation of permission from town and Country Planning Department, rather before issuance of subsequent notification dated 22.6.2007, her case for regularisation ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 26 was rejected by respondent No. 2 vide order dated 9.1.2007. Apart from the above, bare reading of aforesaid Section 6 of General Clauses Act clearly provides that, .
where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not of affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any rt such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed. Bare perusal of Clause (e) of Section 6 as referred above clearly suggests that with the repeal of Act or regulation, any pending investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment would not be effected, rather the same would continue, as if repealing Act or Regulation had not been passed. In the present case as has been observed above, case of the petitioner for regularisation was rejected prior to issuance of fresh notification dated ::: Downloaded on - 15/04/2017 21:03:20 :::HCHP 27 26.2.2007 and thereafter her appeal was decided on 14.6.2007 i.e. after issuance of notification. Since at the time of decision of appeal i.e. on 14.6.2007, when for the .
first time right, if any, accrued to the petitioner in terms of order passed by the appellate authority, whereby authorities were directed to consider the case of the petitioner for regularisation of construction by charging of compounding fees for the structure and for the change of land use, authorities rightly issued demand notice on the basis of rates prescribed vide notification dated 22.6.2007, rt hence, provisions of Section 6 of General Clauses Act cannot be made applicable in the present case.
22. In this regard reliance is placed upon the Judgment of Hon'ble Apex Court in case State of Uttar Pradesh and others versus Hirender Pal Singh and others (2011) 5 SCC 305, wherein, it has been held as under:-
"20.So far as the issue of dispensation of consultation with the District Judge is concerned, this Court has hitherto taken a view that his opinion would have supremacy, thus requires to be examined considering the judgments of this Court in Shrilekha Vidyarthi vs. State of U.P. Harpal Singh Chauhan v. State of U.P., State of U.P. v. Ramesh Chandra Sharma, State of U.P. v. Johri Mal and State of U.P. v. Netra Pal Singh.
21. The High Court vide impugned interim orders stayed the operation of the amended provisions of the L.R. Manual and directed the State authorities to consider the applications for renewal, etc. under the unamended provisions, i.e., which stood repealed by the amendment dated 13.8.2008. The question does arise as to whether such a course is permissible to the High Court for the reason that it has been ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 28 canvassed by Shri Patwalia that the clauses of the L.R. Manual which stood repealed do not survive any more and no direction could have been given by the High Court to act upon the non-existing provisions.
22. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed.
.
The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., pro tanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412; Property Owners' Association & Ors. etc. etc. v. State of of Maharashtra & Ors., AIR 2001 SC 1668; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232).
23. In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439, this Court rt explained the distinction between quashing of an order and staying the operation of the order observing as under:
"10. ......While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending."::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 29
24. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance.
.
25. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740, explained the distinction between repeal and amendment observing that amendment includes abrogation or deletion of a provision in an existing statutes. If the amendment of an existing law is small, the Act prefaces to amend; if it is extensive, it repeals and re-enacts it."
23. At this stage, Shri Sunil Mohal Goel, counsel of representing the petitioner, has also placed reliance on the following judgments to substantiate his plea that his rt case was required to be considered by the respondents in terms of Rules, which were prevalent at the time of filing of initial application for regularisation by the petitioner and not by the subsequent notification dated 26.02.2007.
"Canara Bank and Another versus M.Mahesh Kumar (2015) 7 SCC 412
19. Insofar as the contention of the appellant-bank that since the respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependent of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority.
20. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493, while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 30 the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under:-
"13. ....But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the .
family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-
sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary of benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation."
21. Referring to Steel Authority of India Ltd.'s case, High Court rt has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.
22. Considering the scope of the Scheme 'Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference."
"Commissioner of Income Tax (Central)-I, New Delhi versus Vatika Township Private Limited (2015) 1 SCC 1
27. A legislation, be it a statutory Act or a statutory Rule or a statutory Notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known legislative drafting and latter one is to be found in the various principles of 'Interpretation of Statutes'. Vis-à-vis ordinary prose, a legislation differs in its provenance, lay-out and features as also in the implication as to its ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 31 meaning that arise by presumptions as to the intent of the maker thereof.
28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current .
activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed of in Phillips vs. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then rt existing law.
29. The obvious basis of the principle against retrospectivity is the principle of 'fairness ', which must be the basis of every legal rule as was observed in the decision reported in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
"State Bank of India & Ors vs. Jaspal Kaur (2007) 9 Supreme Court Cases 571 "26. Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 05.02.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 32 on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs.5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water."
.
24. Careful perusal of the aforesaid judgments relied upon by counsel representing the petitioner clearly suggests that same are not applicable in the present facts and circumstances of the case. In the aforesaid cases, of Hon'ble Apex Court has held that claim filed for compassionate appointment needs to be dealt with rt applying parameter of scheme, which were in vogue at the time of submission of claim, if any, for compassionate appointment. Aforesaid proposition of law cannot be made applicable in the present case. While applying for compassionate appointment, applicant/aspirant needs to satisfy that his/her case falls within the parameter of the scheme prevalent at the time of making application and case accordingly needs to be decided by authority in terms of scheme prevalent at that time. But in the present case, petitioner had no right, whatsoever, for regularisation before passing of order in appeal i.e. 14.06.2007, whereas notification presenting new rates came into existence on 26.02.2007. Before 14.06.2007, ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 33 petitioner had no right for regularisation, since her applications were rejected by the authority and as such she cannot be allowed to claim that her case was .
pending at the time of issuance of notification dated 26.02.2007.
25. In the present case, as has been discussed above, petitioner raised construction of warehouse in of anticipation of grant of permission in her favour, but fact remain that her application filed on 3.10.2006 was rejected.
rt Subsequently vide communication dated 23.11.2006, she furnished revised plan for regularisation, which was also rejected vide communication dated 09.01.2007 and as such she was compelled to file an appeal in terms of Section 32 of H.P. Town & Country Planning Act, 1977, which was allowed by respondent No. 1 vide order dated 14.06.2007 with the directions to regularize the construction by charging compounding fee, meaning thereby, that there was no application pending, if any, filed by petitioner on 26.02.2007, when new notification was issued prescribing new rates for regularisation. Moreover, vide order dated 23.11.2006 appellate authority had ordered concerned authority to ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 34 regularise the construction by charging fee as per prevalent provisions of H.P. Town & Country Planning Act & Rules and as such, no fault can be found with the action .
of respondent in charging compounding fee in terms of notification dated 26.02.2007, which was in vogue at that particular time.
26. At this stage, it would be appropriate to of place reliance upon the judgment passed by Hon'ble Apex Court, wherein Lordships deprecated the practice of rt regularisation of illegal construction by way of compounding and other wise.
"Esha Ekta Apartments Cooperative Housing Society Limited & others vs. Municipal corporation of Mumbai and others.
(2013) 5 SCC 357
1. In last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc., have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularization of illegal constructions by way of compounding and otherwise.
2. In Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733, this Court examined the correctness of an order passed by the Orissa High Court negating the appellant's right to be heard in a petition filed by the builder who had raised the building in violation of the sanctioned plan. While upholding the appellant's plea, the two-Judge Bench observed:
"20......... Builders violate with impunity the sanctioned building plans and indulge in deviations much to the ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 35 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 of 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 fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities rt 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 builder....
21. 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.
22. 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 ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 36 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 of unreasonable intermeddling with the private ownership of the property may not be justified.
23. The municipal laws regulating the building construction activity may provide for regulations as to rt 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.
24. 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 ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 37 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.
25. Though the municipal laws permit deviations from sanctioned constructions being regularised by .
compounding but that is by way of exception.
Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, of deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from rt an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
(emphasis supplied)
3. In Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (2006) 7 SCC 597, this Court noted that the construction had been made in the teeth of notices issued for stopping the unauthorized construction and held that no authority administering municipal laws can regularize the constructions made in violation of the Act. Some of the observations made in that judgment are extracted below:
"7....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 ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 38 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 definers of law are not rewarded. The High Court was therefore fully justified in of 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.
8. We also find no merit in the argument that rt 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."
4. The aforesaid observations found their echo in Shanti Sports Club v. Union of India (2009) 15 SCC 705 in the following words:
"74.In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 39 functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people .
belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic of congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, rt asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc.
75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 40 regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, .
else even the rural areas of the country will soon witness similar chaotic conditions."
5. In Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27, this Court declined the appellant's prayer for directing the respondents to regularize the illegal construction and observed:
"55 It is a matter of common knowledge that illegal of and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers rt would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
6. A somewhat similar question was recently considered in Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and others (2012) 10 SCALE 29. While setting aside the order of the Division Bench of the Calcutta High Court, this Court referred to the provisions of the Kolkata Municipal Corporation Act, 1980 in the context of construction of additional floors in a residential building in violation of the sanctioned plan and observed:
"8.What needs to be emphasised is that illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/ development plan / zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 41 of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/ unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State .
machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."
7. We have prefaced disposal of these matters by taking cognizance of the observations made in the aforementioned judgments because the main question which arises for our consideration is whether the orders passed by Deputy Chief Engineer, Building Proposals (City) of of the Mumbai Municipal Corporation (hereinafter referred to as 'the Deputy Chief Engineer') and the Appellate Authority refusing to regularize the illegal constructions made on Plot No.9, Scheme 58, Worli, Mumbai are legally sustainable.
rt
8. At the outset, we would like to observe that by rejecting the prayer for regularization of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the Appellate Authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it.
27. Bare perusal of facts narrated here-in-above clearly shows that warehouse, in question, was constructed by the petitioner without there being any valid permission from the authorities concerned and her applications for regularisation were rejected on 09.01.2007. Notification prescribing new rates for compounding came into existence on 26.02.2007 i.e. before passing of order in appeal by the appellate authority on 14.06.2007. Moreover, perusal of order dated ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP 42 14.06.2007 clearly suggests that appellate authority, keeping in view the fact that construction has already been raised, ordered for regularisation instead of .
demolition of the structure and, as such, it cannot be said that petitioner's prayer for regularisation in terms of her initial application filed on 3.10.2006 was accepted at any point of time, rather, appellate authority taking lenient of view ordered for regularisation instead of demolition.
Hence, this Court sees no illegality in the action of respondent in charging compounding fee in terms of rt Notification dated 26.02.2007, which was prevalent at that time.
28. Consequently, in view of detailed discussions as well as law referred here-in-above, this Court sees no illegality in orders dated 31.07.2009 (Annexure P-10) and 16.07.2007 (Annexures P-8), whereby, petitioner has been asked to deposit an amount of Rs. 21,54,953/- on account of compounding fee in terms of notification dated 26.02.2007. Accordingly, present petition is dismissed being devoid of merits. No order as to costs.
(Sandeep Sharma), Judge.
August 22, 2016 sanjeev ::: Downloaded on - 15/04/2017 21:03:21 :::HCHP