National Green Tribunal
Mohinder Singh vs State Of H.P on 10 November, 2022
Item No.03 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH AT NEW DELHI
(Through Physical Hearing with Hybrid VC Option)
Original Application No.419/2022
Mohinder Singh ...Applicant
Versus
State of H.P ...Respondent
Date of hearing: 10.11.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None.
Application is registered based on a Letter Petition received by Post.
ORDER
1. The grievance in the present letter petition sent by Mr. Mohinder Singh C/o Mr. Tej Pal son of Late Jai Karan resident of Upper Barol Dari, Himachal Pradesh is against raising of illegal construction by Ms. Veena Devi w/o Mr. Joginder Singh (Junior Engineer, Municipal Corporation, Dharmsala) of six storied buildings in Ward 3 in violation of the environmental norms, orders passed by Hon'ble Supreme Court and this Tribunal. The applicant has also complained regarding disproportionate assets of Joginder Singh (Junior Engineer, Municipal Corporation, Dharmsala) by giving detailed particulars of the same and has submitted that Joginder Singh (Junior Engineer, Municipal Corporation, Dharmsala) is indulging in illegal activities of illegal construction, allotments, subletting, issuance of NOC's and cutting of trees.
2. Vide order dated 12.07.2022, this Tribunal constituted a Joint Committee comprising of Principal Secretary, Department of Urban O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -2- Development, Government of Himachal Pradesh, Principal Chief Conservator of Forests, Government of Himachal Pradesh, State PCB, Municipal Commissioner and Deputy Commissioner, Kangra and directed the same to submit factual and action taken report within two months.
3. In compliance thereof the report of the Joint Committee has been filed by HSPCB vide email dated 28.09.2022. The relevant part of the report is reproduced as under:-
"Action taken report of the Joint Committee constituted in compliance to the order dated 12.07.2022 passed by the Hon'ble NGT in Original Application No. 419/2022 titled Mohinder Singh Vs. State of H.P. X X X X X FIRST MEETING OF THE JOINT COMMITTEE:
In compliance to the above directions of Hon'ble NGT, the aforesaid Joint Committee met on 08.08.2022 under the chairmanship of the Principal Secretary, Department of Urban Development, Government of H.P, to examine the issues and actions needed to be taken by the representatives of concerned departments/authorities in this matter. The Joint Inspection committee was directed to submit a complete Action Taken Report in this regard (Minutes of the first meeting of the NGT's Joint Committee is annexed as Annexure-I).
JOINT INSPECTION OF THE SITE The joint inspection of the site was conducted on 10/08/2022 by the following:-
1. Sh. D.R. Kaushal (IFS), Chief Conservator of Forests, Dharamshala on behalf of Principal Chief Conservator of Forests, H.P.
2. Sh. Pradeep Kumar Thakur (IAS), Municipal Commissioner, Dharamshala, H.P. on behalf of the Principal Secretary (UD), Govt. of H.P.
3. Dr. Nipun Jindal (IAS), Deputy Commissioner, Kangra, H.P.
4. Dr. Sanjeev Sharma, Divisional Forest Officer, Dharamshala.
5. Sh. Varun Gupta, Regional Officer, HPSPCB, Dharamshala for the State PCB.
In addition to the above, Revenue officials, Police, complainant & owner of the property were also present during the inspection. O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -3- During the joint inspection the grievances of the complainant i.e. Sh. Mohinder Singh were also heard in person by the Committee. During the inspection, it was decided that Dharamshala Municipal Corporation (DMC) will check for any deviation/unauthorized construction in the building, Revenue Department will conduct demarcation of the land and Tree Officer of DMC will check for any kind of illegal cutting/felling of trees and/or any kind of violation as observed and date to carry out the demarcation by the revenue department in coordination with DMC was fixed on date: 12/08/2022. Accordingly the demarcation of the site in question was carried out on date: 12/08/2022.
(Copy of proceedings and attendance sheet of Joint Inspection carried out on 10/08/2022 is annexed as Annexure-II and III respectively. Copy of attendance sheet of the members during demarcation on 12/08/2022 is annexed as Annexure-IV. Photographs of Joint inspection carried out on date: 10/08/2022 are annexed as Annexure-
V.) ACTION TAKEN BY THE CONCERNED AUTHORITIES / DEPARTMENTS: REVENUE DEPARTMENT:
Revenue Department conducted the demarcation of the site in question as fixed on date: 12/08/2022. During the demarcation Smt. Veena, shareholder and local residents Sh. Janam Singh, Sh. Vijay Kumar etc. were also present on the spot. The parties were intimated in advance regarding the spot inspection of Khasra no. 2122/2036/1972 situated in Up Mahal Mcleodganj. As per the report of Partwari, Partwar Circle Dharamshala-I, Khasra no. 2122/2036/1972 measuring 1-61-66 Hc. to the extent of 250/16166 part measuring 0-02-50 Hc situated in Up Mahal Mcleodganj, has been registered in name of Smt. Veena Devi w/o Sh. Joginder Singh S/o Sh. Chet Ram, Sh. Joginder Singh S/o Sh. Chet Ram, Mayank Singh, Priyank Singh S/o Joginder Singh in revenue records. The above mentioned shareholders are co-owners in Khata no. 217, Khatuni no. 374, Khasra no. 2122/2036/1972, measuring 1-61- 66 Hc. The tatima was prepared as per the possession in the above mentioned Khasra (as it was joint land) and it was found that land measuring 0-02-24 Hc. is in position of the shareholders. In Khasra no. 2122/2036/1972/1 measuring 0-02-24 Hc., a building has been constructed along with stairs and some portion of the land is vacant. Out of the total land measuring 0-02-50 Hc. in the name of above mentioned shareholders, possession has been found in 0-02-24 Hc. O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -4- only, which is 0-00-26 Hc. less than the total area calculated in the name of shareholders. The land was demarcated in the presence of the all present and no objection was raised on the spot.
FOREST DEPARTMENT:
As per the demarcation report, the land where construction of building has been done is a private land owned by Smt. Veena Devi w/o Sh. Joginder Singh S/o Sh. Chet Ram, Sh. Joginder Singh S/o Sh. Chet Ram, Mayank Singh, Priyank Singh S/o Joginder Singh and falls within the Municipal Limits of the Municipal Corporation, Dharamshala. Hence, said land does not attract the provisions of the Indian Forest Act, 1927 and further action in this matter will be taken by the Municipal Corporation, Dharamshala under the HP Municipal Corporation Act, 1994.
DHARAMSHALA MUNICIPAL CORPORATION (DMC):
1. Permission for construction of double storied residential building was granted by the Town & Country planning department in the name of Smt. Veena Devi and Vijay Kumar vide No.DTP(D) Case No. 52/06-
788-89 dated 28-06-2006. Thereafter, this permission of building plan was rectified by the Municipal Council (E.O. M.C. Dharamshala) vide No. 823 dated 11-08-2006.
2. Permission for additional construction along existing ground, first floor and raising second and third floor over it granted in the name of Sh. Joginder Singh, Smt. Veena Devi, Priyank & Mayank Singh from this office on line vide Ref.No.BAMS/2020/9/05044135 dated 23-10-2020. They are co- sharers in land bearing kh. No. 2122/2036/1972 measuring area 250.00 sqm.out of 16166.00 sqm in upmohal Mcleodganj (N.P), Mouja & Teh. Dharamshala, Distt. Kangra H.P.
3. Post Hon'ble NGT's order in application No. 419/2022 dated 12-07- 2022, the construction site inspected by the joint committee on dated 10-8-2022 and it was decided that the extent of possession by Sh. Joginder Singh and others co-sharers shall be determined through demarcation of the premise to ascertain the facts. As per the decision of Committee, Tehsildar Dharmashala conducted demarcation on dated 12-08-2022.
4. After the land demarcation Sh. Joginder Singh and others are found to be in possession as per their entitlement i.e. 224.00 sqms out of 250 sqms recorded share. However, as per the approved building plan they have constructed residential building leaving zero set back O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -5- towards left side i.e. a deviation of 10.50 sqm, the other sides i.e. front, right & back set backs are within permissible limits. It is a six storeyed R.C.C. slab roof residential building out of which two floors i.e. upper & lower basement has been plugged. A tin shed (kiosk) 3.10x2.35 mtr.also constructed on road level without approval of competent authority at site.
5. The premise boundary in front side about 2.50 mtr. public street, the right & left sides have boundary with existing buildings of adjoining owners and rear side is fixed with R/wall.
6. R.C.C. slab roof has laid on top floor in place of approved sloping C.G.I. sheet.
7. Eight trees i.e. 7 No. Deodar and 1 no. of Silver Oak found within plot boundary. Out of seven trees, 4 Deodar trees are at a distance which is not permissible under regulations. The tree on front side is at a radius of 1.50 meter, 2 trees on the left side at a radius of 0.50 &1.20 meter and right side is at a radius of 1.70 meter from the building. As per Dharamshala Planning regulations clause 14.10-(XXXVI) minimum distance of 2.00 meter radius from existing trees has not been kept. However, stipulated radius of 2.00 meter has been maintained at second and third floor level of the building.
8. All trees are within their private land and it was observed that no tree felling has been carried out as alleged in the complaint. Over all height of building has been kept 19.40 meter against permissible limit of 13.00 meter.
9. It is further observed that slab projections are extended between 0.80 to 1.40 meter against permissible limit of 0.45 to 1.00 meter.
10. Since the land in question is a privately owned land and the respondents had obtained valid permission for a residential house over 250.00 SQM having G+ 3 floors/ four storeyed structure, therefore part of constructed portion is unauthorized, as it has been deviated from approved plan.
11. The Dharamshala Municipal Corporation has already initiated action u/s 253(1) of H.P. Municipal Corporation Act, 1994 and a show cause notice vide no. 2691-92 dated 01-08-2022 issued. The deviated part of the building has been ordered to sealed as per the O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -6- provisions of Section 254 (A) of same Act vide order 3055-57 dated 18-082022.
SECOND MEETING OF THE JOINT COMMITTEE AND CONCLUSION :
Aforesaid action taken report by the respective departments were delved upon during second meeting of the Joint Committee held on 14.09.2022 under the chairmanship of the Principal Secretary, Department of Urban Development, GoHP wherein it was observed that joint inspection was conducted in presence of the complainant Sh.
Mohinder Singh and his grievances were also heard by the Committee. Revenue Department has demarcated the site in question and parties were found to be in possession as per their entitlement. All trees were within the private land/plot boundary and no tree felling has been carried out as alleged in the complaint. Part construction was found to be unauthorized as deviations were found from the approved building plan. In this connection, it was apprised that Municipal Corporation, Dharamshala has already initiated action u/s 253(1) of Municipal Corporation Act, 1994 and vide order dated 18.08.2022, the deviated part of the building has been ordered to be sealed as per the provisions of Section 254(A) of the same Act. In compliance further it has been reported in the Joint Report, that two floors of the building (upper & lower basement) already stand plugged.
In view of above, the Principal Secretary, Department of Urban Development directed Municipal Corporation, Dharamshala that it shall take action prescribed for the violations found, as per due process of law and the entire process be completed within six months. (Minutes of the second meeting of the Joint Committee is annexed as Annexure-VI)."
4. We have gone through the report of the Joint Committee. As per the report of the Joint Committee, the land where construction of building has been done is a private land owned by Smt. Veena Devi and others and the same falls within the Municipal Limits of the Municipal Corporation, Dharamshala and does not attract the provisions of the Indian Forest Act, 1927. The Joint Committee has also mentioned that no tree felling has been carried out as alleged in the complaint. Part of the constructed portion is unauthorized due to deviation from approved plan regarding which the Dharamshala Municipal Corporation has already initiated action u/s 253(1) O. A. No. 419/2022 Mohinder Singh Vs. State of H.P -7- of the Himachal Pradesh Municipal Corporation Act, 1994, issued show cause notice and ordered sealing of the unauthorized/deviated part of the building.
5. In view of the report of the Joint Committee, no substantial question relating to environment arising out of implementation of the National Green Tribunal Act, 2010 is involved in the present case and no further action is required to be taken by this Tribunal on the present application which is accordingly disposed of.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM November 10, 2022 AG