Himachal Pradesh High Court
Unknown vs State Of H.P. And Others on 5 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
RSA No. 437 of 2018 05.07.2019 Present: Mr. K.D. Sood, Senior Advocate, with Mr. Rajnish .
K. Lal, Advocate, for the appellant.
Mr. Shashi Shirshoo, Central Government Counsel, for the respondents.
Mr. Vinod Thakur, Addl. A.G., with Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Dy.A.Gs. for the respondent-State.
Mr. Chirgi Lal, Ofice Supdt. and Ms. Anchal Upadhyay, Junior Engineer, Cantonment Board, Subathu, present in person.
Affidavit on behalf of respondent No.3 filed in the open Court, made part of the file. It appears that there are number of cases of unauthorised constructions/encroachment pending in various courts/authorities including this Court.
2. It is more than settled that the public property cannot be allowed to be encroached and the concerned authorities have to ensure constant vigilance on encroachment. No right can be claimed to encroach upon the public property. A Division Bench of this Court in case titled 'Court on its own motion vs. State of H.P. and others, 2015 (3) ILR (HP) 569 : 2015 (4) RCR (Civ) 111, while dealing with the issue of encroachment by the hawkers and others in Shimla, observed as under:
"14. It is well settled that the hawkers have no fundamental right under Article 21 of the Constitution of India to carry on business at the place of their choice and convenience. The rights of hawkers, kiosk- users and vendors can never be absolute, but have to be limited and subservient to over all public interest.
15. In the Municipal Board, Manglaur Vs. Mahadeoji Maharaj, AIR 1965 SC 1147, the Hon'ble Supreme Court observed that the roads and its sidewalks are laid for passage only and for no ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
- 2 other purpose.
16. In Bombay Hawkers' Union and others Vs. Bombay .
Municipal Corporation and others, AIR 1985 SC 1206, the Hon'ble Supreme Court has held that:
"8......No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic like. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so-called."
17. In the case of Olga Tellis and others Vs. Bombay Municipal Corporation and others, AIR 1986 SC 180, the Hon'ble Supreme Court has held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In the said case, the Hon'ble Supreme Court also observed that:-
"43......In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets....."
18. The Hon'ble Supreme Court rejected the misplaced arguments resting on life and liberty by those who were claiming occupation of the public streets. In this regard, it was observed that:
"43......There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up construction on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that the former should be preferred to the latter......"
19. In Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 SC 38, the Hon'ble Supreme Court reiterated the law that to remove an encroachment to the public road is the obligation of the ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the .
use of the pedestrians. The Hon'ble Supreme Court rejected the plea of life and liberty raised in the context of carrying on trade or business on a public road. The Hon'ble Supreme Court further held that there can be no fundamental right of a citizen to occupy a particular place where he can squat and engage in trading business.
20. In Ahmedabad Municipal Corporation Vs. Dilbag Singh Balwant Singh and others, 1992 Supp.(2) SCC 630, the Hon'ble Supreme Court negatived the plea of a occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. Reaffirming and reiterating its earlier decision, the Hon'ble Supreme Court upheld the removal of encroachment.
21. In M/s Gobind Pershad Jagdish Pershad Vs. New Delhi Municipal Committee, AIR 1993 SC 2313, the Hon'ble Supreme Court while dealing with a case where the verandah in front of the shop had been for long used for passing and re-passing by the public, it was held that this space could be held to be a street under the Municipal Act.
22. In Maharashtra Ekta Hawkers Union and another Vs. Municipal Corporation, Greater Mumbai and another, AIR 2004 SC 416, the Hon'ble Supreme Court while holding that every municipal corporation has a statutory obligation to provide free flow of traffic and pedestrians to pass and re-pass freely and safely; as its concomitant, the corporation/municipality have a statutory duty to have the encroachments removed.
23. On the basis of the aforesaid exposition of law, it can safely be concluded that the respondent Corporation is expected to be vigilant and cannot and should not allow encroachments in any form, be it the illegal extension of shops, its projections, eaves, the pavements or even the footpaths. Public streets and road cannot be blocked or encroached by any one, not even by the government and they are to be kept clear for the purposes of passage only and for no other purpose."
3. In Dipak Kumar Mukherjee versus Kolkata Municipal Corporation and others (2013) 5 SCC 336 the Hon'ble Supreme ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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Court while dealing with illegal and unauthorized construction of .
buildings and other structures observed as under:-
"8. What needs to be emphasised is that illegal and unauthorised 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 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.
9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their sub-servient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short, 'the Corporation') have been extremely vigilant and taken steps for enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short, 'the 1980 Act') and the rules framed thereunder for demolition of illegal construction raised by respondent No.7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared."
4. In M.I.Builders Pvt. Ltd. versus Radhey Shyam Sahu and others (1999) 6 SCC 464, the Hon'ble Supreme Court in no unequivocal terms held that no consideration should be shown to the ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
- 5- builder or any other person where construction is unauthorized and .
it was further held that this dicta is now almost bordering the rule of law. It was further held that the Courts cannot exercise discretion which encourages illegality and perpetuates any illegality.
Unauthorized construction, if it is illegal cannot be compounded and has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Further, it was held that the Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders solely on their personal predilections and peculiar dispositions. Judicial discretion whenever it is required to be exercised has to be in accordance with law and set legal principles.
5. In Friends Colony Development Committee versus State of Orissa and others (2004) 8 SCC 733, it was held by the Hon'ble Supreme Court that deliberate deviations from the sanctioned plan should not be condoned and compounded and it was observed as under:-
"20. 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 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 suffer unbearable burden and are ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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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 design 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 unauthorized 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 fail 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 unauthorized constructions, but who failed in doing so either by negligence or by connivance.
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 unauthorized. 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 ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
- 7- zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on .
scientific research, study and experience leading to rationalization 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 its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter- meddling 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 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 legitimized from the point of view of the control of community development, the prevention of over-crowding of land, the furnishing of recreational facilities like parks and playgrounds ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
- 8- and the availability of adequate water, sewerage and other governmental or utility services.
.
24. Structural and lot-area regulations authorize the municipal authorities to regulate and restrict the height, number of stories 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 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.]
25. Though the municipal laws permit deviations from sanctioned constructions being regularized 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 mis- understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, 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 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 under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
- 9- builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or .
unwary buyers who are displaced on account of demolition of illegal constructions."
6. In Royal Paradise Hotel (P) Ltd. versus State of Haryana and others (2006) 7 SCC 597, the Hon'ble Supreme Court while reiterating that unauthorized construction should not be encouraged and compounding is not to be done when the violations are deliberate, designed, reckless or motivated, observed as under:-
"7. 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 under Section 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 ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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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.
8. 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."
7. In Shanti Sports Club and another versus Union of India and others (2009) 15 SCC 705, the Hon'ble Supreme Court approved the order of the Delhi High Court which had declared the ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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construction of sports club by the appellants on the land acquired for .
planned development Delhi to be illegal by observing thus:-
"73. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity.
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 unauthorized 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 unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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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 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, 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 unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized 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. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC
208. .
75. Unfortunately, despite repeated judgments by the this Court and 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 of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized 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 unauthorized 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.
76. In the result, the appeals are dismissed. However, by taking note of the submission made by Shri Mukul Rohtagi that some time may be given to his clients to vacate the land, we deem it proper to grant thee months' time to the appellants to handover possession of the land to the concerned authority of DDA. This will be subject to the condition that within two weeks from today an affidavit is filed on behalf of the appellants by an authorised person that possession of the land will be handed over to DDA by 30 th November, 2009 and during this period no encumbrances whatsoever will be created by the appellants or ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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their agents and that no compensation will be claimed for the construction already made. Needless to say that if the required .
undertaking is not filed, the concerned authorities of DDA shall be entitled to take possession of the land and, if necessary, take police help for that purpose."
8. Similar observations are echoed by the Hon'ble Supreme Court in Priyanka Estates International Private Limited and others versus State of Assam and others (2010) 2 SCC 27, wherein it was observed as under:-
"55. It is a matter of common knowledge that illegal and unauthorized 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/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free....."
9. Similar, sentiments have been expressed by the Hon'ble Supreme Court in Sanjay Adlakha versus State of Haryana and others (2011) 15 SCC 387.
10. In Union Territory of Lakshadweep versus Seashells Beach Resort and others (2012) 6 SCC 136, the Hon'ble Supreme Court did not approve the grant of relief in matters of violation of CRZ notification only upon humanitarian and equitable considerations and it was observed as under:-
"30. The High Court's order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep ::: Downloaded on - 29/09/2019 00:26:01 :::HCHP
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Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter.
.
31. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ court."
11. The observations by the Hon'ble Supreme Court in Deepak Kumar Mukherjee's case (supra) have already been extracted above and similar ethos was reflected by the same Bench of the Hon'ble Supreme Court in Esha Ekta Apartments Cooperative Housing Society Limited and others versus Municipal Corporation of Mumbai and others (2013) 5 SCC 357, wherein it was observed:-
"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 concerned authorities against arbitrary regularization of illegal constructions by way of compounding and otherwise."
12. In view of the law expounded in the aforesaid decisions, it can conveniently be held that even the most deterrent orders that ::: Downloaded on - 29/09/2019 00:26:02 :::HCHP
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have been passed by the Hon'ble Supreme Court in matters of .
obstruction, illegal construction, unauthorized encroachments, violation of statutory plans and schemes have had no effect and have not acted as a deterrent. As observed by the Hon'ble Supreme Court, there has to be zero tolerance on the part of the Court when it gets down to decide the cases of unauthorized encroachments, obstructions and illegal constructions, violation of statutory plans and schemes. Therefore, even on the ground of sympathy, the Court cannot come to the rescue of the petitioner or else such direction would be blatant violation of the orders of the Hon'ble Supreme Court and grant of any relief to the petitioner is not only impermissible, but would even amount to judicial impropriety, blatant and scant respect for the orders of the Hon'ble Supreme Court which otherwise are binding upon this Court under Article 141 of the Constitution of India.
13. Now, as regards the matter pending before this Court, list the same alongwith the present appeal on the next date of hearing, the details whereof are as under:
Sr. Case No. Title House Remarks.
No. No.
1. RSA 437/2018 Radhey Shyam v/s 94 Appearing at Sr.No.1 of
Cantt. Board Subathu detailed list attached.
2. RSA 278/2016 Lakhan Chauhan v/s 434 Appearing at Sr.No.2 of
Cantt Board Subathu detailed list attached.
3. RSA 22/2018 Sushil Kumar v/s 288 Appearing at Sr.No.3 of
Cantt Board Subathu detailed list attached.
4. RSA 4331/2013 Rejender Dinesh v/s 90 Appearing at Sr.No.4 of
Cantt Board Subathu detailed list attached.
5. RSA /2015 Cantt Board Subathu 196 Appearing at Sr. No.5 of
v/s Baljinder Singh detailed list attached.
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6. CMPMO 2046/ Manmohan Sharma 101 Appearing at Sr.No.6 of
2015 v/s Cantt Board detailed list attached.
Subathu
7. CMPMO Laxmi Devi v/s Cantt 422 Appearing at Sr.No.7 of
.
456/2015 Board Subathu detailed list attached.
8. CMPMO Jagdish Chand v/s 484 Appearing at Sr.No.8 of
239/2015 Cantt Board Subathu detailed list attached.
9. RSA 121/2016 Cantt Board Subathu 207 Appearing at Sr.No.9 of
v/s R.C.Verma detailed list attached.
14. Insofar as seven cases pending before the District Judge, Solan, Civil Judge Senior Division and Civil Judge, Junior Division are concerned, the same are directed to be decided by the concerned District Judge/Judge(s), as expeditiously as possible and in no event later than 30th September, 2019. The same directions will apply to the 10 cases that are pending before the Principal Director Defence Estate, Western Command, Chandigarh, the details whereof are as under:
Sr. House No. Title Remarks
No.
1. 248 Lekh Raj v/s Cantt Board Subathu Appearing at Sr.No.16 of
detailed list attached.
2. 130 Krishan Dutt v/s Cantt Board Appearing at Sr.No.17 of
Subathu detailed list attached.
3, 297 Arvind Kumar v/s Cantt Board Appearing at Sr.No.18 of
Subathu detailed list attached.
4. 360/361 Jaspal Singh, Kanta Devi v/s Appearing at Sr.No. 19 of
Cantt Board Subathu detailed list attached.
5. 97 Secretary Guru Singh Sabha v/s Appearing at Sr.No.20 of
Cantt Board Subathu detailed list attached.
6. 64 Rajender Kumar & Shammi Appearing at Sr.No.21 of
Kapoor v/s Cantt Board Subathu detailed list attached.
7. 189 Arun Kuma, Devender Kumar v/s Appearing at Sr.No.22 of Cantt Board Subathu detailed list attached.
8. 63 Rajinder Kumar & Shammi Appearing at Sr.No.23 of Kapoor v/s Cantt Board Subathu detailed list attached.
9. 412 Sohan Lal v/s Cantt Board Appearing at Sr.No.24 of Subathu detailed list attached.
10. 327 Banti Devi v/s Cantt Board Appearing at Sr.No.25 of Subathu detailed list attached.
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15. As regards the cases where no proceedings are pending before .
any Court or authority, the C.E.O., Subathu, is directed to remove such encroachments/unauthorised constructions before the next date of hearing and report compliance before the next date of hearing.
16. It is made clear that the Deputy Commissioner, Solan and the Superintendent of Police, Solan will provide necessary assistance to the authorities at the time of carrying out the eviction and demolition of unauthorised structures. Respondent No.1, in turn, shall also provide sufficient man power and work force so that the orders passed by this Court are complied with in its letter and spirit.
Needless to say that all the authorities shall work in tandem to enforce the orders passed by this Court.
17. It is represented by learned Central Government Standing Counsel that taking undue advantage of the leniency of this Court, the appellant has opened the ground floor, which he has undertaken and converted the same into a store. I have gone through the photographs and primafacie found that the submissions made on behalf of the respondents appears to be correct. However, before expressing any final opinion in this matter, let a Contempt notice be issued against the appellant to show cause why he has committed violation of the order dated 13.3.2019 despite repeated assurance given to this Court that the premises in question shall not be put to use by the appellant.
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18. Mr. Rajnish K. Lal, Advocate, waives notice of contempt on .
behalf of the appellant. Let reply be filed before the next date of hearing.
19. A copy of this order be sent directly to the Deputy Commissioner and the Superintendent of Police, Solan and a copy thereof be also made available to the office of the learned Advocate General by the Registry.
List on 30.9.2019.
Copy dasti.
5th July, 2019. (Tarlok Singh Chauhan)
(GR) Judge
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