Himachal Pradesh High Court
Baldev Singh Attri vs State Of H.P.& Others on 13 January, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4389 of 2019.
.
Reserved on:15.12.2022
Date of decision :13.1.2023.
Baldev Singh Attri ...Petitioner.
Versus
State of H.P.& others ...Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1Yes.
For the petitioner : Mr. B. S. Chauhan, Sr. Advocate
r with Mr. Ashish Verma, Advocate.
For the respondents : Mr. Desh Raj Thakur, Addl. A.G.
for respondents No. 1 to 4.
Mr. Anil Chauhan, Advocate, for
respondent No.5.
Mr. Maan Singh, Advocate, for
respondent No.6.
Mr. V. S. Chauhan, Sr. Advocate
with Mr. Ajay Kashyap, Advocate,
for respondent No.7.
Satyen Vaidya, Judge:
By way of instant petition, the petitioner has prayed for the following substantive reliefs:-
"(i) To direct the respondents to stop all type of construction activities being carried out by the 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 13/01/2023 20:32:43 :::CIS -2-
respondent Non.7 on Khasra No. 358/1, 360/1, 362/1, 363/1, 364/1 Kita 5 total measuring 0- 25-55 hectare (2555 Sq. Meters) situated at Up .
Mohal Dochi, Patwar Circle Kasumpti, Tehsil and Distt. Shimla HP being violative of provisions of T&CP Act, 1977, Interim Development Plan, 1979, T&CP Rules, 2014 amended upto 2016.
ii) To direct the respondent No.1 to cancel the planning permission, Annexure P-5 alleged to r have been sanctioned in favour of respondent No.7 which is contrary and violative of Act, Bye
-laws, Regulations, rules and Interim Development Plan.
iii) To direct the respondent No.2 and 5 to initiate appropriate proceedings against respondent No.7 under T&CP Act, 1977 for carrying out unauthorized construction on the basis of notice issued on 19.12.2018, Annexure P-9 and P-10.
iv) To direct the respondent No.7 to restore the land to its original position which have been indiscriminately/unauthorisedly damaged and dug out including the land which is owned by the State of H.P. which is allegedly used as passage".
2. Brief facts necessary for adjudication of the petition are that certain employees of Himachal Pradesh Civil Secretariat have formed respondent No.7 Society and have ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -3- registered the same under the Himachal Pradesh Societies Registration Act (for short "the Society").
.
3. In 2015, the Society purchased land comprised in Khasra No. 358/1, 360/1, 362/1, 363/1, 364/4/1, total measuring 2555 square Meters, situated at Up Mohal Dochi, Patwar Circle Kasumpti, Tehsil and District Shimla H.P. (hereinafter referred to as "land" for brevity) from one Shri Shankar Singh forthe purpose of construction of 50 residential flats for its members on self-finance basis. Mutation of sale in favour of the Society was attested on 28.11.2015.
4. The land purchased by the Society falls within the Shimla Planning Area and is thus amenable to the Himachal Pradesh Town & Country Planning Act, 1977 (for short "the Act"), Himachal Pradesh Town & Country Planning Rules, 2014 (for short "the Rules") and Interim Development Plan for Shimla Planning Area (for short "IDP").
5. The seller of the land Sh. Shankar Singh is real brother of the petitioner. In partition effected between the co-
owners, the land purchased by the Society had fallen to the share of Sh. Shankar Singh, whereas the adjoining land comprised in Khasra Nos. Khasra No. 358/2, 359/1, 360/2, ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -4- 361/2, 364/2 and 366/1 total measuring 2553squaremeters has fallen to the share of petitioner.
.
6. The grievance of the petitioner is that the Society has been raising the construction on the land in utter violation of the provisions of the Act, Rules and IDP. As per petitioner, though respondents No. 1 and 5 have sanctioned the proposed construction plan of the Society but the same is also in violation of statutory provisions. The specific case of petitioner is that though there is no provision for relaxation in the Act, Rules or IDP to allow construction of additional stories and to exempt in maintenanceof the requisite setbacks, yet respondents No. 1 and 5 have proceeded to sanction the proposed construction plan of the Society by granting the relaxations de-hors the provisions of Act, Rules and IDP.
Petitioner has alleged that during the course of raising construction, the Society has thrown huge debris and boulderson the adjoining land and has thereby caused destruction and damage to the substantial portion of land of petitioner. Petitioner further alleged that the cuttings of the hills were being done by the Society in excess of the required parameters. The forest wealth was also subjected to destruction.
::: Downloaded on - 13/01/2023 20:32:43 :::CIS -5-7. Respondents No. 1 to 5 have contested the petition by filing a joint reply. It has been submitted by respondents .
No. 1 to 5 that the Society had applied on 25.5.2015 for permission to raise constructions on the land by providing relaxation in the Floor Area Ratio (for short, "FAR") as also the setbacks. Respondent No.5 forwarded the case of the Society to the Government on 27.9.2016. The Government granted setbacks. to sanction to the Society by allowing relaxation in FAR and The sanction was conveyed to the Society by respondent No.5 on 19.12.2016 and finally the planning permission was granted on 6.4.2017. As per respondents No. 1 to 5, their acts were strictly in accordance the provisions of the Act, Rules and IDP.
8. It has been further submitted by respondents No. 1 to 5 that petitioner filed a complaint before respondent No.5 on 4.12.2018. The site was inspected by the technical staff of Special Area Development Authority, Shoghi (for short, "the Authority"). Statutory notices under Sections 38 and 39(A)(2) of the Act were issued. The Society in its reply to the notices proposed certain changes necessitated by the site conditions, which were permitted by respondents No. 1 to 5 and the Society was allowed to go ahead with construction.
::: Downloaded on - 13/01/2023 20:32:43 :::CIS -6-9. Respondents No. 1 to 5 also pointed out that another brother of the petitioner Sh. Dalip Singh had raised the .
same issue before National Green Tribunal (for short "the NGT") in which the factual report was sought. On consideration of the report, the matter was disposed of by the NGT on 29.3.2019 without indicting the construction being raised by the Society in any manner.
10. The Society in its separate reply has also contested the claim of the petitioner on the grounds that the petition was not bona-fide. The initial attempt to stall the construction being raised by the Society was made through a petition, filed by Sh. Dalip Singh before the NGT. Having failed in said attempt, the present petition has been filed. The petition filed before the NGT was a proxy litigation of petitioner. It has further been submitted that petitioner has no locus-standi to file the petition as no right of the petitioner has been violated.
The petition is also sought to be dismissed on the ground of delay and laches. As per the Society, it started construction immediately after granting of planning permission in its favour on 6.4.2017. At the time of filing of petition by the petitioner, structure of two out of five blocks had already been raised by the Society. Further, the stand taken by Respondents No. 1 to ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -7- 5 has been reiterated by asserting that the construction is being raised by the Society strictly in accordance with the .
sanctioned plan. The Government had allowed the relaxation in FAR and setbacks in exercise of its lawful jurisdiction. As per the stand of Society, it has purchased 2555 square meters of land for construction of 50 flats. Each flat required approximate floor area of 1250 to 1300 square meters.Keeping in view the number of permissible floors and height of the buildings, the available FAR i.e. 1.75 was not sufficient to meet the requirements for 50 flats. The required area for 50 flats was much more than the available area by applying the permissible FAR of 1.75, which necessitated the relaxation.
11. I have heard learned counsel for the parties and have also gone through the record carefully.
12. Indisputably, the "land" falls within the jurisdiction of Special Area Development Authority, Shoghi,(for short, "the Authority") which has been constituted by the State Government,under Section 67 of the Act,vide notification dated 16.8.2000. Respondent No.5 is the Chairman of said Authority.
Under section 71(b) of the Act, the Authority has been vested with powers of the Director.
::: Downloaded on - 13/01/2023 20:32:43 :::CIS -8-13. Society required prior planning permission from the Authority beforestart of construction activity on the land. The .
permissible norms for construction have been prescribed in the Rules and Chapter-10 of IDP. It is not in dispute that as per prescribed norms FAR ofonly1.75 is permissible. "Floor Area Ratio" means the ratio between the net plot area and the total floor area of all the floors of the building. The limits of setbacks
14. to on all four sides have also been prescribed.
Respondent No.5 on receipt of application of the Society, seeking relaxation, forwarded the same to respondent No.2 on 27.9.2016 for consideration and further necessary action. Respondent No.2 vide letter dated 2.12.2016 conveyed the grant of relaxation in favour of the Society to the following extent: -
Sr. Particulars As per Appendix-7 of As proposed Relaxations No. the H.P. Town and Country Planning Rules, 2014 (Amended upto 2016)
1. Land Use Original Use (un- Residential Change of Land defined) use (Flatted Use from Original Colony) Use (Un-defined) to Residential Use is allowed
2. Area under 30-35% 45.86 Relaxation of Apartments 10.86% is granted
3. Public and 06-10% 03.67% Relaxation of Semi-Public 2.33% is granted
4. FAR 1.75 2.36 Relaxation of 0.61 (6771.48m2 is granted
5. Built up area 4471.25m2 5859.50m2 Relaxation of (2555x1.75=4471.25) 1388.25m2 is granted
6. Set backs ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -9- Right side (1/3rd of building 3.20m Relaxation of 3.65 height) i.g. 6.85m (Average) m is granted Left side (1/3rd of building 5.63m Relaxation of .
height) i.e. 6.85m (Average) 1.22m is granted
7. Block to 6.00m 5.00m Relaxation of Block 1.00m is granted.
distance It is on the strength of these relaxations that the planning permission was finally granted to the Society by respondent No.5.
15. Petitioner has raised the contention that under the Act, Rules and IDP the Director has been vested with power to grant planning permission(s). The powers of Director are well circumscribed and he is not vested with powers to relax the fixed and prescribed norms. It has further been contended by petitioner that since the land falls within the jurisdiction of the Authority, it was only within the domain of the Authority to grant the planning permission strictly in accordance with prescribed norms. As per petitioner, in the instant case the State Government has exercised the power to relax the prescribed norms fixed under the rules and the IDP and such act of the State Government is without jurisdiction and hence illegal.
16. On the other hand, respondents have tried to justify their action by placing reliance on Section 84 (c) of the Act as ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -10- also on Clause 10.4.1.2 (x) (viii) of IDP. It is relevant to notice the provisions of Section 84 of the Act and Clause 10.4.1.2 (x) .
(viii) of IDP, as under: -
"84. Vacancy not to invalidate proceedings:- No act of a Town and Country Development Authority or a Special Area Development Authority or any of its committee shall be invalid merely by reasons of-
(a) ........
(b) ........; or
(c) any irregularity in the procedure thereof not affecting the merits of the case."
10.4.1.2 (x) (viii) "In public interest and in the interest of town design or any material consideration the Director may permit more number of storeys, coverage and density or change of land-use. The decision of the director shall be final".
17. In my considered view, the arguments raised on behalf of the respondents are wholly misconceived. Section 84 of the Act has its application in entirely different domain. It is not a case of irregularity in the procedure. It is a case of exercise of power by an authority without any legal sanction.
Admittedly, the Authority is empowered to grant planning permission within its jurisdiction. In the case in hand, the relaxation was not granted by the Authority, rather the same was granted by the State Government.The State Government ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -11- did not have any authority under the Act to grant the planning permission much less to grant relaxation in the prescribed .
norms.
18. Similarly respondents cannot derive any benefit of Clause 10.4.1.2 (x) (viii) of IDP. As noticed above, the Director/Chairman of the Authority i.e. respondent No.5 did not grant any relaxation, therefore, Clause 10.4.1.2 (x) (viii) of IDP cannot be pressed into service. Alternatively, assuming the application of such clause, there is nothing on record to suggest that in what manner the relaxation granted to the Society would have served the public interest or interest of town design.
In my considered view it would have served none.Learned Additional Advocate General, representing respondents No. 1 to 5 also made a feeble attempt to justify the action of State Government by asserting that the interest of town design was protected by the State Government, keeping in view the constraint of limited land area, as 50 persons will be getting residential accommodation within a smaller area than what would have been required by them by following the prescribed norms. This argument again cannot stand the scrutiny of the provisions the Act, Rules or IDP, which does not provide for meeting with any such like situation.
::: Downloaded on - 13/01/2023 20:32:43 :::CIS -12-19. The respondents have also tried to take the benefit of Section 28 of the Act to justify their act. Such stand of .
respondent is again incomprehensible as the plain reading of section 28 ibidreveals its application to the construction of buildings for the government offices and under sub-Section (4) of Section 28 of the Act, the decision of the State Government taken under sub-Section (3) has been declared as final. The the facts of the case.
r to application of aforesaid provision shall be completely alien to
20. On examination of the above relied and other relevant provisions of the Act, Rules and IDP it is found that the State Government was not vested with powers either to grant planning permission or to relax the norms prescribed for grant of such permission.
21. In the above notedbackground it becomes necessary to lift the veil and to find out the reasons behind commission of patently illegal acts by the instrumentalities of the State, for such an exercise will have effect on the final outcome of instant petition.
22. It is evident from the stand taken on behalf of respondents that the Society knew from the inception that the prescribed norms under the rules and IDP would not permit it ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -13- to construct 50 flats particularly with the requirement of floor area of 1250 to 1300 square feet for each flat. It was for such .
reason the Society applied to the Authority on 25.5.2016 seeking relaxation in prescribed norms in respect of FAR and setbacks.It cannot be said to be a bonafide mistake on behalf of official respondents for the reasons firstly, that they still maintain that they had the authority to relax the norms and secondly, the contents of record produced by respondents 1 to 4 offered reasons to assume existence of malafides.
23. After the matter was heard, an application came to be filed on behalf of Respondents No. 1 to 4, seeking permission to place on record the copies of office notes dealing with the application of the Society seeking relaxation in norms. The reckless approach adopted by official respondents becomes evident on perusal of said office notes.
24. It is revealed that the Chairman of the Authority (Respondent No.5) on receipt of the application of the Society for relaxation had raised his doubts vide office Note No. 14 dated 9.8.2016. The reservations expressed by respondent No.5 were as under: -
"14. I have gone through the case file.
(1) Are there no sets of guidelines or law to grant relaxations?::: Downloaded on - 13/01/2023 20:32:43 :::CIS -14-
(2) Have such relaxations been given in the past by Chairman, SADA.
(3) With reference to (1) above, what will deter .
anybody from applying for relaxations if there are no guidelines.
(4) Please make a site report with photographs of setbacks. I would then also want to understand why relaxations in setbacks are required & if the relaxation sought is justified. Similarly, why an increased FAR is required?"
25. Interestingly, the queries raised by respondent No.5 were dealt with vide Note Nos.16 to 18 in following manners: -
"16. It is submitted that the site has been visited and the photographs of the same have been furnished by the Architect of applicant society. (Pl. see at Flag 'd'). The reasons adduced by the applicant society for relaxation in the setback as well as in FAR, are to meet the basic requirement to construct 50 flats for their members.
17. In view of above narrated position, if approved we may apprise the worthy Chairman, SADA (s) pleas.
18. In compliance to N.14. The detailed reply is submitted vide N. 16. However, it is understood that the proposed colony is not for sale and doesn't have any profit motive as stated in affidavit. Case has been already recommended vide N. 13.::: Downloaded on - 13/01/2023 20:32:43 :::CIS -15-
Accordingly, submitted for perusal and approval Pl."
.
26. The record further shows that respondent No.5 was not satisfied and had again raised the query vide office Note No. 19, as under:-
"I don't think the case for relaxation can be considered favourably at this level. Also, I would want to know if the demands of relaxation are justified. No comment has been made in that."
27. Evidently, the Authority at its level had not passed any order to grant relaxations in favour of the Society. However, the following references made vide office Note Nos. 26 and 27, need attention and are therefore reproduced as under:-
"PUC has been received from the Under Secretary (TCP) to the Govt. of H.P. regarding for relaxation in FAR (Floor Area Ratio) and Setback for the construction of colony in respect of H.P. Secretariat Employees named "Aditya Vihar Employees Housing Society"
In this regard, it is submitted that the case has already been considered by the Govt. for construction of five residential Blocks/Parking stages holding total built up area of 5859.00m on kh. Nos. 358/1, 960/1, 362/1, 363, 364/1 with total plot area 2555.00m at Up Mohal Dochi, Teh. & District Shimla, H.P. with the condition that the applicant shall submit the NOC ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -16- from different Deptt. & standard stability certificate & the fee has been calculated after submit the drawing.
So if approved we may inform the applicant .
accordingly."
28. Thus, there remains no doubt that instead of decision being taken by the Authority; the State Government had taken the decision of granting relaxation to the Society which not only was without jurisdiction but was also arrived at in the most casual manner.
29. It will also not be out of place to notice here the extent of relaxation granted to the Society. It is not in dispute that the planning permission was granted to the Society by the Authority to construct total floor area by applying the FAR of 2.36 instead of permissible FAR of 1.75. Admittedly, the Society has total 2555 square meters of land. By application of prescribed FAR of 1.75 the Society could be permitted to construct total floor area of 4471.25 sq. meters, whereas it has been permitted to construct 5859.50 sq. meters of floor area in five blocks having 5 storeys with parking floor in each block.The reasons of such allowance were neither lawful nor with any public interest in the background.
30. The Act provides for preparation of Regional Plans, Sectoral Plans and creation of Special Areas from the ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -17- perspective of sustainable planning, development and land use.
Keeping the object of the Act in mind, Shimla Planning Area .
was declared and an the IDP was framed keeping in view various relevant parameters viz. economic profile, environs, demographic characters, traffic and transportation, ecological conservation and environmental control etc. Needless to say, the norms have been prescribed keeping in mind all above parameters. Such norms cannot be allowed to be violated at whims and fancies of the State authorities.
31. As noticed above, the State Government has not been vested with any authority to grant planning permissions or to relax the prescribed norms. In this view of the matter, the exercise of power by the State Government to grant relaxations in the case of the Society is clearly without jurisdiction hence illegal. Once the statutory provisions are is in place none can violate or flout the same be it the Government agenciesthemselves. The executive by its illegal action cannot nullify the laws enacted by the legislature. The issue attracts more serious dimensions when protector of law itself becomes its violator.
32. It is more than settled that if a statute required for anything to be done in a particular manner, it should be done ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -18- in that manner or not at all. As noticed above, the Act does not vest with the State Government to either grant the planning .
permission or to relax the norms. The grant of planning permission is within domain of Director and in the case of Special Area Development, the Chairman exercise the powers of Director. In the instant case, no such power was exercised by the Director.
33. In Municipal Corporation of Greater Mumbai (MCGM) vs. Abhilash Lal & others 2020 (13) SCC 234, the Hon'ble Supreme Court has held as under:-
39. The principle that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all, articulated in Nazir Ahmad v. Emperor, AIR 1936 PC 253, has found widespread acceptance. In the context of this case, it means that if alienation or creation of any interest in respect of MCGM's properties is contemplated in the statute through a particular manner, that end can be achieved only through the prescribed mode, or not at all.
46. Dharani Sugars & Chemicals Ltd. v. Union of India & Ors. (2019) 5 SCC 480 is a relevant recent decision of this court. The question which arose in that case was the legality and constitutionality of directions issued by the Reserve Bank of India, ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -19- through a circular of 12thFebruary, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking .
Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained "within the four corners"
of Section 35AA and observed as follows:
"53. A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued.
54. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -20- after Section 35AA, it may do so only within the four corners of Section 35AA.
.
55. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the wellknown Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485, this Court held:
'8. The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -21- laid down in Section 164. The power to record the confession had obviously been given so that the confession might be .
proved by the record of it made in the
manner laid down.If proof of the
confession by other means was
permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, r therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him.
Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA."::: Downloaded on - 13/01/2023 20:32:43 :::CIS -22-
34. A similar reproduction of law has been expounded by a Division Bench of this Court while deciding CWP No. 1773 .
of 2020, as under:-
51. A perusal of the aforesaid provisions goes to indicate that the power is conferred upon the Council established under Section 3 to determine the minimum standards of education of school teachers.
It is the Council alone which for the purpose of maintaining standards of education in schools may by regulations determine the qualifications of persons for being recruited as teachers. There is a proper mechanism as to how these powers have to be exercised. It is the basic principle of law long settled that if the manner of doing a particular act is provided under the statute, the act must be done in that manner or not at all.
52. The origin of this rule is traceable to the decision of the Privy Council in Taylor vs. Taylor 45 LJ CH 373 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor, AIR 1936 Privy Council 253, who stated as under:-
"where the power is given to do certain thing in a certain way, the thing must be done in that way or not at all."
35. Thus, this Court has no hesitation to hold that neither the Authority nor the State Government has any power ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -23- or jurisdiction to relax the prescribed norms save and except the powers vested in Director by virtue of Clause 10.4.1.2 (x) .
(viii) of IDP, which is available in the case of public interest or the interest of town design only. Though, the matter in respect of grant of relaxation to the Society does not appear to have been dealt with at the touch stone of aforesaid criteria, yet it can be seen that the Society is an entity constituted by private individuals. Merely because the members of the Society are the employees of Himachal Pradesh Civil Secretariat, does not place it at any better footings than any other individual amenable to the mandatory provisions of the Act, Rules or IDP. The respondents themselves have mentioned that since the available FAR as per prescribed norms was not sufficient for construction of 50 flats, relaxation was sought and finally granted. It cannot by any stretch of imagination be said to be a public cause.
36. The claim of the petitioner has then been sought to be defeated by the respondents on the grounds firstly that he has no locus-standi to file the petition, secondly that the claim was not bona-fide and thirdly, it suffers with vice of delay and laches.
::: Downloaded on - 13/01/2023 20:32:43 :::CIS -24-37. Learned counsel for the Society has placed reliance on following excerpts from the judgment passed by Hon'ble .
Supreme Court in R & M Trust vs. Koramangala Residents Vigilance Group & others reported in 2005 (3) SCC 91, as under:-
"23. Next question is whether such Public Interest Litigation should at all be entertained & laches thereon. This sacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends".
24. Public Interest Litigation is no doubt a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons and it has brought very bad name. Courts should be very very slow in entertaining petitions involving public interest in a very rare case where public at large stand to suffer. This jurisdiction is meant for the purpose of coming to the rescue of the down trodden and not for the purpose of serving private ends. It has now become common for unscrupulous people to serve their private ends and jeopardize the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -25- matters of public contracts. In order to serve their professional rivalry they utilize the service of the innocent people or organization in filing public interest .
litigation. The Courts are sometimes persuaded to issue certain directions without understanding implication and giving a handle in the hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in a very rare and few cases involving public interest of large number of people who cannot afford litigation and are made to suffer at the hands of the authorities. The parameters have already been laid down in a decision of this Court in the case of Balco Employees' Union (Regd.) v. Union of India & Ors. reported in (2002) 2 SCC 333, wherein this Court has issued guidelines as to what kind of public interest litigation should be entertained and all the previous cases were reviewed by this Court. It was observed as under:-
"77. Public Interest litigation, or PIL as it is more commonly known, entered the Indian Judicial process in 1970. It will not be incorrect to say that it is primarily the Judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -26- seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and .
collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to means nothing more than what words themselves said viz. "litigation in the interest of the public".
78.While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres, Prof. S.B. Sathe has summarized the extent of the jurisdiction which has now been exercised in the following words::
"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive;
- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates.) ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -27-
- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganized labour, .
etc.)
- Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children, bonded labour, unorganized labour, etc.)
- Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums.)
- Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water."
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -28- rights of the weak and the disadvantaged and was a procedure which was innovated where a public spirited person files a petition in effect on .
behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There has been in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to reemphasize the parameters within which PIL can be resorted to r by petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and reemphasize the same.""
38. Similarly, he relied upon the judgment of Hon'ble Supreme Court in Bhakra Beas Management Board vs. Krishan Kumar Vij & another 2010 SC 3342, which reads as under:-
"39. Yet, another question that draws our attention is with regard to delay and laches. In fact, respondent no.1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the matter and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -29- aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not .
proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal."
39. Learned counsel for the Society further asserted that the Court cannot easily brush aside the factor of delay and laches and for such purpose, he placed reliance on Chennai Metropolitan Water Supply and Sewerage Board & others vs. T.T. Murali Babu 2014 (4) SCC 108 as under:-
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -30- inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant .
- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time"
and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -31- our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at .
the very threshold."
40. Before entering into the legal aspect dealing with the proposition raised on behalf of the Society, reference to certain facts of the case will be necessary. The planning permission was granted to the Society on 6.4.2017. Petitioner had made complaint to the authorities on 4.12.2018.
r Site inspections were conducted. Notice was issued to the society to stop the construction. Finally, society was allowed to go ahead with the construction activity by the Authority on 15.5.2019. Petitioner filed the petition in December, 2019. It is averred in the petition that the petitioner had made applications for necessary information under Right to Information Act and had received some of the information on 7.1.2019 and 15.3.2019. His allegation is that information was not complete. It is clearly evident from the record that official respondents had not disclosed at any time about the source of their powers to grant relaxation in favour of the Society. Petitioner was aggrieved as his land was allegedly being disturbed or destroyed by fall of debris and boulders as a result of construction work undertaken by the Society. In this view of the matter, the ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -32- petition cannot be said to be either the projection of stale claim or having been filed without any locus-standi. Petitioner cannot .
be said to have remained silent for inordinately long period of time, rather he has been vigilant throughout and had filed the petition within reasonable time, when he did not find proper redressal to his grievance from official respondents.
41. Further, it can also be seen that the respondent No.5 had issued notices under sections 38 and 39 of the Act to the Society on the complaint of petitioner, meaning thereby that the complaints were found correct. It is the case of respondents themselves that the Society had sought certain amendments due to site conditions and the Society was allowed to carry further construction in accordance with such amendments.
However, there is nothing on record to suggest that petitioner was ever informed about the decision of Respondent No.5 to allow the Society to carry on with further construction as per amended design.
42. Otherwise also this court cannot remain oblivious to its obligations. Instant petition has been able to expose patently illegal acts of omissions and commission on part of State ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -33- authorities and in such situation this court will fail in its duties in case the wrong already committed is not remedied.
.
43. In Ghulam Quadir vs. Special Tribunal & others 2002 (1) SCC 33, it has been held by the Hon'ble Supreme Court, as under:-
"38.There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea-change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dis-lodging the claim of a litigant merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -34- the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or .
property, he cannot be non-suited on the ground of his not having the locus standi".
44. In Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh & others 2011 (5) SCC 29, the Hon'ble Supreme Court has held as under:-
"80. The challenge to the locus standi of the appellant merits rejection because it has not been disputed that the appellant is a public spirited organization and has challenged other similar allotment made in favour of Punjabi Samaj, Bhopal, That apart, as held in Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227 even if a person files a writ petition for vindication of his private interest but raises question of public importance involving exercise of power by men in authority then it is the duty of the Court to enquire into the matter".
45. In Pradeep Kumar & others vs.Mysore Urban Development Authority 2016 (3) SCC 422, the Hon'ble Supreme Court observed as under:-
"28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -35- have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which .
have been mentioned hereinabove. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court. Insofar as the knowledge of the appellant - writ petitioner with regard to the allotment of the land to the respondent No.28-Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when the respondent No.28-Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellant-writ petitioner.
34. The acquisition under the 1903 Act and the allotment of 55 acres of land to the respondent No. 28 having been found to be contrary to law consequential orders of handing over of possession of the entire land should normally follow. However, in granting relief at the end of a protracted litigation, as in the present case, the Court cannot be unmindful of facts and events that may have occurred during the pendency of the litigation. It may, at times, become ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -36- necessary to balance the equities having regard to the fact situation and accordingly mould the relief(s). How the relief is to be moulded, in the light of all the .
relevant facts, essentially lies in the realm of the discretion of the courts whose ultimate duty is to uphold and further the mandate of law. If the issue is viewed from the aforesaid perspective the several decisions cited on behalf of the respondents in this regard, particularly by the respondent No. 28, i.e., Competent Authority Vs. Barangore Jute Factory and Others, U.G. Hospitals Pvt. Ltd. Vs. State of Haryana and Others, Gaiv Dinshaw Irani and Others Vs. Tehmtan Irani and Others and Bhimandas Ambwani (Dead) Through Lrs. Vs. Delhi Power Company Limited can at best indicate the manner of exercise of the judicial discretion in the facts surrounding the particular cases in question".
46. In Shivajirao Nilangekar Patil vs. Dr. Mahesh Madhav Gosavi 1987 (1) SCC 227, the Hon'ble Supreme Court has held as under:-
"36. The allegations made in the petition disclose a lamentable state of affairs in one of the premieruniversities of India. The petitioner might have moved inhis private interest but enquiry into the conduct oftheexaminers of the Bombay University in one ofthe highestmedical degrees was a matter of public interest. Such stateof affairs having been ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -37- brought to the notice of the court,it was the duty of the court to the public that the truthand the validity of the allegations made be inquired into. It was in .
furtherance of public interest that an enquiryinto the state of affairs ofpublicinstitutionbecomesnecessary and private litigation assumed the character ofpublicinterest litigation and such an inquiry cannot be avoided if it is necessary and essential for the administration of justice.
47. Another r to contention of respondents petitioner is not bona-fide has also not been substantiated on that the record. It has not been established that the complaint filed by Sh. Dalip Singh before the NGT was at the instance of petitioner. There is no denying the fact that Sh. Dalip Singh is the other brother of Sh. Shankar Singh from whom the land was purchased by the Society. Sh. Dalip Singh had his independent right to challenge the actions of Society before the NGT. Moreover the NGT had neither delved upon the issue that has arisen in present case, nor had decided the same.
Petitioner was not a party to the proceedings before the NGT.
48. Learned counsel for the Society also raised an argument that since there was no express power in the Act regarding relaxation, therefore, the relaxation granted in favour ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -38- of Society cannot be said to be without authority or jurisdiction.
The argument so raised also deserves to be rejected for the .
reasons that such absurd interpretation will make the provision of the Act otiose. Nothing can be imported into the statute, which has not been expressly incorporated by the Legislature.
The prescription of norms itself suggests that there is fixation of optimal limits.
49. In light of above discussion, the petition is allowed and disposed of in following terms:
(i) The relaxation granted in Floor Area Ratio and setback areas in the case of respondent No.7 by respondent No.1 and 2on 2.12.2016 is held to be without jurisdiction and hence illegal.
Consequently, the planning permission granted by respondent No.5 on 6.4.2017 is also held invalid to the extent it exceeded the permissible limits ofFloor Area Ratio and setbacks.
(ii) Respondent No. 5 shall be under direction to review and revoke the planning permission dated 6.4.2017 granted in favour of the ::: Downloaded on - 13/01/2023 20:32:43 :::CIS -39- respondent No.7, within eight weeks from the date of passing of this judgment, so as to bring .
the planning permission strictly within the prescribed norms as per the provisions of Act, Rules and the IDP.
(iii) Respondent No.5 is further directed to take necessary steps under Section 39 of H.P. Town r and Country Planning Act, 1977 and any other applicable provision of law, in respect of construction,if any, already raised by Respondent No.7 in excess of permissible limits prescribed under the Act, Rules and IDP.
The petition is disposed of in above terms so also the pending miscellaneous application(s), if any.
(Satyen Vaidya)
13th January, 2023 Judge
(kck)
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