Himachal Pradesh High Court
Construction Co. Pvt. Ltd vs State Of Himachal Pradesh on 14 January, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 14th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO. 1781 OF 2019
Between:
M/S PRASHANTI SURYA
CONSTRUCTION CO. PVT. LTD,
THROUGH ITS MANAGING DIRECTOR,
VIJAY KUMAR SOOD, VPO GHURKARI,
TEHSIL AND DISTRICT KANGRA, H.P.
....PETITIONER
(BY MR. SUNIL MOHAN GOEL,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
(TRANSPORT) TO THE GOVERNMENT
OF HIMACHAL PRADESH
2. DISTRICT MAGISTRATE,
KANGRA AT DHARAMSHALA,
TEHSIL AND DISTRICT KANGRA, H.P.
3. HIMACHAL PRADESH BUS-STAND
MANAGAEMENT AND DEVELOPMENT
AUTHORITY THROUGH ITS CHIEF
EXECUTIVE OFFICER, TUTI KANDI,
BUS STAND, SHIMLA, H.P.
4. THE TOWN AND COUNTRY PLANNER,
DIVISIONAL TOWN PLANNING OFFICE
AT DHARAMSHALA, DISTRICT KANGRA,
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5. DIRECTOR, TOWN AND COUNTRY
.
PLANNING, DEV NAGAR, SHIMLA
....RESPONDENTS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. ARVIND SHARMA,
ADDITIONAL ADVOCATE GENERAL, WITH
MR. NARENDER THAKUR AND MR.
GAURAV SHARMA, DEPUTY ADVOCATES
GENERAL)
(BY MR. MALAY KAUSHAL, ADVOCATE, FOR
RESPONDENT NO.3.)
(MR. MAYANK MANTA, ASSISTANT DISTRICT
ATTORNEY- CUM- LAW OFFICER, TCP, PRESENT)
Whether approved for reporting?.
This petition coming on for hearing this day, the Court passed the following:
ORDER
By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for following main reliefs:-
"i) That this Hon'ble court may be pleased to issue writ of certiorari quashing order dated 31.7.2019 (Annexure P-19) issued by the District Magistrate, Kangra at Dharamshala by invoking the provisions of Section 117 of the Motor Vehicle Act, 1988 read with Rule 196 of the H.P. Motor Vehicle Rules 1999.
ii) That this Hon'ble court may be further issue writ of mandamus directing the respondent No.3 HPBSM &DA to permit the petitioner company to run the bus-stand and the parking space strictly in terms of the agreement entered into between eh petitioner and respondent No.3 HP BSM& DA and in terms of the directions issued by the Hon'ble National Green Tribunal dated 4.5.2016."
iii). That this Hon'ble Court may please to issue writ of mandamus directing the plans pending approval before the respondent Town & Country Planning Department be deemed to have been sanctioned."
::: Downloaded on - 31/01/2022 23:35:43 :::CIS 32. After having heard learned counsel for the parties and perused .
instructions placed on record pursuant to order dated 7.12.2021, on 4.1.2022, this Court passed following order:
"Pursuant to order dated 7.12.2021, meeting took place in the Chamber of Managing Director, HRTC, wherein Director, Town and Country Planning was also present. Minutes of meeting have also been placed on record, perusal whereof reveals that all the stakeholders have almost resolved all the major issues and steps are being taken for commencement of the operation of bus-stand at McLeodganj, but before that, certain clarifications are required to be made by the Project Proponent as well as HPBSMD. As per discussion held inter-se parties in the aforesaid meeting, HPBSMD and Project Proponent are required to re-cast their respective drawings showing that what kind of ancillary use would be carried out in 27 no. shops already constructed in compliance of the orders passed by the Hon'ble Apex court so that entire building structure is put to use strictly for the bus-stand and parking purpose floor wise specifying the non-commercial use of the same. Mr. Ashok Sharma, learned Advocate General, states that no bus- stand can be imagined without there being basic amenities like toilets, dormitory, public utility shops etc., but no commercial activity other than as specified in the agreement executed inter-se parties can be permitted. He states that now dispute, if any, is only with regard to use of shops/outlets constructed by the Project Proponent, which as per TCP Department is not in conformity with the drawings as well as order passed by the Hon'ble NGT further upheld by the Hon'ble Apex Court. Mr. Sandeep Managing Director cum CEO, Himachal Pradesh Bus-Stand Management and Development Authority, states that department is ready and willing to commence the operation of the bus-stand but as per terms and conditions of the agreement. He states that if there is a provision of shops/outlets in the agreement, same would be allowed to be used, but definitely not for commercial activity or any other activity which is not subservient to the bus-stand. He states that necessary information as has been called for by the Director, Town and Country Planning department, shall be furnished within a period of two days, enabling him to take appropriate decision at the earliest so that no further delay is caused in putting the bus stand in operation.
Mr. Kamal Kant Saroch, Director, Town and Country Planning Department, who is present in the Court states that immediately after receipt of the proposal, necessary action/decision would be taken.
In view of the above, list this matter on 14.1.2022."::: Downloaded on - 31/01/2022 23:35:43 :::CIS 4
.
3. Today during the proceedings of the case, Mr. Ashok Sharma, learned Advocate General, has placed on record, communication dated 13.1.2022, issued under the signature of Mr. Kamal Kant Saroch, Director TCP department, perusal whereof reveals that TCP department after having examined the matter afresh, has granted relaxation in public interest as per regulation '14.16- Relaxations' of 'Chapter 14 - Zoning Regulations', of the Development Plan Dharamshala. It would be apt to reproduce the relevant extract of the communication detailed herein above:
"Accordingly, in compliance to the judgment dated 12.01.2021 & order dated 26.07.2021 passed by the Hon'ble Supreme Court of India along with the directions of the Hon'ble High Court of Himachal Pradesh planning permission in the instant case is granted as per detail given below:-
Sr. Contents Provision as per As per the Remarks by TCP No Development revised drawing Directorate as per Plan submitted on provisions of DP Dharamshala dated Dharamshala, 2035 13.12.2021
1. Land use Traffic and Traffic and As per Land Use of Transportation Transportation Revised Development i.e. Bus Stand i.e. Bus Stand Plan.
including commercial complex)
2. Plot Area and 150.00 Sqm 4835.00 Sqm In order Ownership of land
3. Floor wise Built-up area:
1.Ground - 584.31Sqm Ground floor shall be Floor put to use which is ancillary and sub servient to public use of bus stand.::: Downloaded on - 31/01/2022 23:35:43 :::CIS 5
2.First Floor - 584.31Sqm. First floor shall be put .
to use which is
ancillary and sub
servient to public use of
bus stand.
3. Second - 2444.56 Sqm. Shop/outlets shall be
Floor (Bus put to use which is
Stand) ancillary and sub
servient to public use of
bus stand. Relaxation to
the extent of 1.0 mtrs in
floor height of Bus
Parking Floor is hereby
considered and granted
in public interest.
4. Third Floor - 2391.48 Sqm. In order.
5. Fourth - 1446.38 Sqm. The 27 shops already
Floor. constructed shall be put
r to use which is
ancillary and sub
servient to public use of
bus stand as per
undertaking of CEO,
HPCT& Bus Stand
Management and
Development Authority.
The proposed 7 more
shops to be constructed
are disallowed.
Total built- 9670.00 Sqm. 7473.04 Sqm. In order.
up Area (including parking
floors)
2842.72 (Excluding
parking floors.)
4. F.A.R. 2.00 1.54 (including In order.
parking floors 0.59)
0.59 (Excluding
parking floors.)
5. No. of 4+1 Parking 2+3 Parking Floors Basement constructed
Storeys below ground floor shall
be plugged and
rendered un-usable and
un-habitable.
6. Maximum 18.80m 24.40 m. Relaxation as per
Height of actual construction
building carried out at site to the
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extent of 5.60 mtrs in
.
overall height of
building is hereby
considered and granted
in public interest.
7. Set Backs
Front 8.00m 7.14 mtrs. (Average Relaxation in Front Set
as per revenue back as per actual
boundary). construction carried out
3.90 M. at site to the extent of
(Average as per site 4.10 mtrs is considered from acquired edge and granted in public of road. interest.
Left 2.50m 1.50 m. Relaxation in left (Average) setback as per actual construction carried out at site to the extent of 1.00 m is hereby considered and granted r in public interest.
Right 2.50m 20.24 m. In order.
(Average)
Rear 2.50m 6.17 m. In order.
(Average)
8. % age 40 % 50.60% Relaxation in ground
Coverage coverage to the extent of
10.60 % is hereby
considered and granted
in public interest.
9. Structure Mandatory Submitted In order
Stability
Certificate
mandatory
10. Provision of -do- Shown in the In order.
Electricity& submitted
Water Supply drawings.
11. Provision of -do- Provision shown In order.
Sewer through septic tank
Disposal in the submitted
drawings.
12. Provision of Provision of Provision shown in In order.
Rain Water 40000 Ltr. higher capacity in
Harvesting Capacity of the submitted
Tank. R.W.H.T. Is drawings.
required.
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13 Provision of Mandatory i.e. Provisions except Applicant shall
.
barrier free Ramp, Lift, ramps are not construct at least one
access. Escalators, and shown through in male and female toilet
Toilet for each floor in the each at parking floors
Persons with maps for persons with
disability. disability.
14. Height of 2.50 mtr. max. Slopping roof of In order.
slopping roof. Height of 2.30 mtr. height
slopping roof is has proposed in the
permissible. submitted plans.
Further, as detailed out in the checklist table above, the summary of the relaxations beyond the provisions of Development Plan, Dharamshala regulations in the instant case are considered and granted in public interest as per regulation '14.16- Relaxations' of 'Chapter 14 - Zoning Regulations', of the Development Plan Dharamshala:-
1. Relaxation in front set-back from the r requisite 8 mtrs. to existing 3.90 mtrs, i.e. 4.10 mtrs. in respect of NOC from the HP PWD.
2. Relaxation in left side setback from requisite 2.50 mtrs. to existing 1.50 mtrs., i.e. 1.00 mtrs.
3. Relaxation in ground coverage from permissible 40% to existing 50.60%, i.e. 10.60%.
4. Relaxation in maximum height of the building beyond 18.80 mtrs. to existing 24.40 mtrs., i.e. 5.60 mtrs.
5. Relaxation in maximum height of 2nd floor from permissible 4.00 mtrs. to existing 5.00 mtrs., i.e. 1.00 mtrs.
Alongwith the above cited relaxations, following permissions are also considered and granted in public interest in the instant case in due compliance to the judgment dated 12.01.2021 & order dated 26.07.2021 passed by the Hon'ble Supreme Court of India.
1. Use of Ground Floor and First Floor is hereby permitted for use which is ancillary and sub servient to public use of Bus Stand, for which in compliance to the orders of the Hon'ble High Court of Himachal Pradesh ::: Downloaded on - 31/01/2022 23:35:43 :::CIS 8 dated 04.01.2022 undertaking has been submitted by the CEO, HPCT & .
BSMDA.
2. On 4th floor, the 27 shops already constructed are hereby permitted and same shall be put to use which is ancillary and sub servient to public use of Bus Stand, for which the CEO, HPCT & BSMDA has given an undertaking in compliance to the orders of the Hon'ble Apex Court dated 12.01.2021.
3. The Bus stand/ parking complex shall strictly be used for the purposes defined in the proposed drawings and in accordance with the directions passed by the Hon'ble Apex Court.
Accordingly, two complete sets of project drawings are sent herewith for further necessary action with the direction to follow all codal formalities, please.
Encl: As above.
Kamal Kant Saroch (IAS) Director Town and Country Planning Department Himachal Pradesh, Shimla -09"
4. Having carefully perused the aforesaid communication, this court finds that reliefs, as prayed for, in the instant petition stand granted to the petitioner and as such, nothing remains to be adjudicated in the present petition.
5. Consequently, in view of the above, present petition is disposed of with direction to the Managing Director, HP BSM&DA to ensure strict compliance of terms and conditions contained in the aforesaid communication dated 13.1.2022, so that bus-stand complex at McLeodganj, Dharamshala, is put to use forthwith. Needless to say, Project Proponent would render proper assistance to the Managing Director, ::: Downloaded on - 31/01/2022 23:35:43 :::CIS 9 enabling him to comply with the directions contained in the instant order.
.
Pending applications, if any, also stand discoed of.
14th January, 2022 (Sandeep Sharma),
(manjit) Vacation Judge
r to
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