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Himachal Pradesh High Court

Gaurav Keprate vs . State Of H.P And Others on 2 May, 2022

Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia

Gaurav Keprate Vs. State of H.P and others CWP No.6584 of 2021 .

2.5.2022 Present: Mr. Shrawan Dogra, Sr. Advocate with Mr. Nitin Thakur, Advocate, for the petitioner.

Mr. Shiv Pal Manhans, Additional Advocate General, Mr. Vinod Thakur, Additional Advocate General, Mr. Bhupindter Thakur and Mr. Yudhvir Singh Thakur, Deputy Advocate Generals, for the respondents­State.

Ms. Vandna Misra, Advocate for respondents No.5 and 6. This petition was disposed of vide order dated 26.11.2021, the operative portion whereof reads as under:­ "4.In view of the aforesaid, we direct the petitioner to approach this new Committee during the course of the day and supply the requisite documents as undertaken within a week from today. In case the petitioner approaches the said Committee during the course of the day and supply the necessary documents as undertaken within a week, the Committee shall consider and decide the issue, in accordance with law, within two weeks thereafter."

Today, the respondents have handed over the instructions, which goes to reveal that in replies to the final orders passed by this Court, the matter was examined in detail by the Committee, so constituted for this purpose. On brief examination of the instant case, the technical parameters as formed by the Committee are as under:­ ::: Downloaded on - 02/05/2022 20:08:20 :::CIS Description As per submitted proposal Remarks .

Proposed Layout Layout and site Plan of In order.

                             proposed Retail Outlet duly
                             approved     by      Bharat
                             Petroleum Corporation Ltd





Built-up Area                16.0 Sqm.                       Sales Room, Public Toilet
                                                             and Electric Room. Canopy
                                                             over filling stations with
                                                             over all height of 6.9 mtrs.
                                                             Is also proposed.





Set Backs                    -                               As per approved layout of
                                                             BPCL
NOC for fire and Life Safety Submitted                       In order.
NOC from HPPWD
                           r Submitted                       In order.
Soil Investigation/Geological Submitted                      In order.

Report
Hill Cut                       More than 3.5 meter has       Relaxations required for
                             been proposed at rear end in    hill    cutting   beyond
                             steps of 3.5 mtrs each, with    permissible limit of 3.5


                             total height of 28 mtrs.        mtrs.
Slope Analysis Report        As per three cross sections     The detailed slope analysis

shown in the site Plan, slope report of HPPWD shows the has been shown as 41, 43 and overall contours and degree

44. of slope at 52 Relaxation is required.

The petrol pumps have been classified to be an essential commodity as per Section 2A & Schedule 1 of the Essential Commodities Act, 1955. For the development of the land in question, the following general regulations of Appendix­I of HPTCP Rules, 2014 are applicable:

"III. General Regulations The following provisions shall be applicable where no specific mention is made, namely:­

3. Maximum acceptable slope for development shall be

45 degrees.

::: Downloaded on - 02/05/2022 20:08:20 :::CIS

II. Maximum hill cut of 3.50 Metre height shall be permissible."

.

Section 28 of the H.P Town and Country Planning Rules, 2014 reads as under:­ "28. Relaxation in setbacks, height of floors and building etc. may be allowed in Government projects in the public interest. In case of private construction/projects relaxation in setbacks, height of floors and building etc. may be considered by the Competent Authority keeping in view the site conditions. However, in private projects having plot area of more than one hectare, relaxation shall be allowed by the State Government only.

According to the Technical Committee, after examining the technical and legal aspects of the case, it was found that the case of the petitioner for proposed construction of retail outlet pump as stated above is a public utility and is located in Non­Core Area of Shimla Planning Area.

Furthermore, the Committee also found that the construction proposed is not in relation to building construction but only for the development of land/site in question and, therefore, following two relaxations are required in the instant case:­ i. Hill cutting beyond permissible limits of 3.50 mtrs.

ii. Relaxation in overall slope of the site from 52 degrees to 45 degrees.

As regards the first relaxation, it is not in dispute that only application for sanctioning of plans for construction are required to be submitted to the concerned department, which ::: Downloaded on - 02/05/2022 20:08:20 :::CIS in turn shall then ensure that no construction activity takes place where the slope is more than 45 degrees/35 degrees.

.

As regards the second relaxation, the proposal for retail petrol pump outlet is to be constructed in and around 20 metres of the total plot area and this condition is duly fulfilled by the petitioner. Once that be so, obviously, the slope where the construction is proposed will naturally be less than 45 degrees once the hill cutting is carried out.

In such circumstances, we direct the respondents to consider the case of the petitioner for relaxation as aforesaid within a period of two weeks from today.

For compliance to come up on 23.5.2022.

(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 2.5.2022 (mamta/himani) ::: Downloaded on - 02/05/2022 20:08:20 :::CIS