Himachal Pradesh High Court
Narain Singh Bramta vs State Of H.P. And Ors. on 11 September, 2002
Equivalent citations: AIR2003HP81
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This is a suit for declaration that the plaintiff has raised the construction of a four storeyed building with a roof thereon on the land comprising Khasra No. 664/29/1 measuring 5 biswas situate in Mauza Pateog, Tehsil and District, Shimla (hereafter referred to as 'the building in suit') with the deemed sanction of the defendants, therefore, the notices dated 14-9-1995 and 24-10-1996 issued by the defendants under the provisions of the Himachal Pradesh Town and Country Planning Act (hereafter referred to as 'the Act') are illegal, void and inoperative against the rights of the plaintiff and the defendants have no right to Interfere in any manner in the aforesaid construction and for permanent prohibitory injunction restraining the defendants from interfering with the said construction and from demolishing the same.
2. Case of the plaintiff, as made out in the plaint, is that he purchased land Khasra No. 29 measuring 1-4 bighas in village Pateog from Shanti Devi in the year 1984 vide a registered sale deed. After such purchase he submitted a plan for construction of a four storeyed building to the defendants seeking permission under Section 31 of the Act and deposited the requisite fee under the appropriate head. It is, however, claimed that there being no change of the user of the land no such permission was required. After submission of the plan and documents as required under the Rules, the plaintiff remained waiting for the sanction but nothing was heard from the defendants till September, 1984, i.e. during the period of six months of the submission of the plan, therefore, it was presumed by the plaintiff that the sanction stood accorded as per the provisions of Section 31(5) of the Act and the plan submitted by, him is deemed to have been sanctioned because of the expiry of six months period. The plaintiff then started construction in September 1984 as per the plan submitted by him which was completed by the end of the year 1985 and only the roof of the building was laid thereafter. Since within six months of the submission of the application/plan by the plaintiff no objection was received from the defendants regarding the proposed construction, therefore, they are estopped from taking any action against him on the ground that the construction has been raised without sanction. However, on 14-9-1995 plaintiff received a notice from D-3 under Section 38 of the Act requiring him to show cause as to why action be not taken against him for raising the construction without sanction. Pursuant to the notice plaintiff appeared before D-3 and submitted a written reply to the show cause notice and at the instance of the defendant and to avoid unnecessary harassment, plaintiff re-submitted the plan as was earlier submitted by him to defendants alongwith other requisite documents. The plaintiff, however, again did not receive any communication regarding the plan re-submitted by him till 22-10-1996, i.e. within six months, when he received a letter alongwith the plan and the documents submitted by him for approval on 24-10-1996. He received a notice under Section 39 of the Act requiring the plaintiff to demolish the structure raised by him in contravention of the Act and Rules made thereunder and to restore the land to the condition existing before the development took place on the ground that the construction was raised without permission as required under Sections 15-A/16/ 31 of the Act. It is further claimed by the plaintiff that permission to construct was required only where the user of the land is to be changed and not otherwise. Since in his case the user of the land was not changed, therefore, no such permission was required and if any permission was required the plaintiff had submitted his application and plan to the defendants which were neither rejected nor sanctioned within six months from the date of submission thereof, thus, the plan shall be deemed to have been sanctioned. Therefore, the notices issued by the defendants are illegal and void and even otherwise the defendants are estopped from issuing notice by their acts, deed, conduct and acquiescence and defendants have no right to demolish the constructed building. Hence, this suit.
3. The defendants contested the suit. In the written statement, they raised the preliminary objections that the suit is not maintainable in the present form as the plaintiff has not exhausted the statutory remedy available to him under the Act, that the Court has no jurisdiction to try the suit and that no notice under Section 80 of the Code of Civil Procedure, (hereafter referred to as 'the Code') was served by the plaintiff on the defendants before instituting the suit. On merits, ownership of the plaintiff on land Khasra No. 29 in suit has not been disputed. It is, however, claimed that all the records of D-2 were destroyed in a fire on 28-6-1993, therefore, it could not be admitted whether the plaintiff had submitted the application/plan for construction but the requisite fee for grant of sanction had not been deposited by him. It is further claimed that the construction raised by the plaintiff cannot be considered to be a case of deemed sanction as no proper set backs exist at the site and the building constructed by the plaintiff is of five storeys and the construction of the 5th storey was commenced in the year 1995. Therefore, the show cause notice was served on the plaintiff on 14-9-1995. Plaintiff replied the said notice on 6-5-1996 and certain deficiencies were noticed from the reply and the objections based on such deficiencies were conveyed to the plaintiff well within six months. Since the plaintiff has deviated substantially from the I.D.P. regulations, therefore, a further notice under Section 39 of the Act was issued to the plaintiff requiring demolition of the building. Thus, the claim of the plaintiff that there being no change of the user of the land no sanction was required and in the alternative this is a case on deemed sanction has been denied.
4. Plaintiff filed replication wherein the grounds of defence, as taken in the written statement, were repudiated and the claim as made out in the plaint was re-affirmed.
5. On the pleadings of the parties, following Issues were framed :--
1. Whether the suit is not maintainable in its present form, as alleged? OPD
2. Whether this Court has jurisdiction to try the suit? OPP
3. Whether no notice under Section 80 of the Code of Civil Procedure has been served upon the defendants, as alleged, if so, its effect? OPD
4. Whether the plaintiff before starting the construction was required to seek the requisite permission for changing the land use? OPD
5. Whether the plaintiff, has submitted a plan for seeking permission strictly in accordance with the provisions of Town and Country Planning Act, 1977 for construction of five storey house? OPP
6. Whether the construction on the spot is without proper set-backs as required under the I.D.P. Shimla? OPD
7. Whether the plaintiff has received the construction with deemed sanction of the defendants, as alleged? OPP
8. Whether the provisions of H.P. Town and Country Planning Act are not applicable to the construction raised by plaintiff? OPP
9. Whether the notice under Section 39(1) of H.P. Town and Country Planning Act is illegal, void and inoperative against the plaintiff, as alleged? OPP
10. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
11. Whether the plaintiff is entitled to the relief of declaration and injunction, as prayed for? OPP
12. Relief.
6. Parties led evidence.
7. Arguments were heard.
FINDINGS Issue No. 1
8. The case of the plaintiff is based on the plea that he constructed the building in suit on the basis of "deemed sanction" under Sub-section (5) of Section 31 of the Act. Therefore, provisions of Sections 32 and 33 of the Act respectively providing remedy of appeal and revision to a party aggrieved by conditional permission or refusal to grant permission for development are not attracted to his case. There is no dispute that during the pendency of the suit the plaintiff applied under the "retention policy" but his application had been rejected. Therefore, the objection regarding maintainability of the suit as raised vide preliminary objection No. 1 in the written statement is not sustainable. This issue is, thus, decided against the defendants.
Issue No. 29. At the time of arguments nothing was submitted to substantiate the objection that this Court has no jurisdiction to try the suit. In view of the nature of the suit, only a Civil Court can decide such a suit. Hence, this Court has the jurisdiction to try the suit. This issue is accordingly decided in favour of the plaintiff.
Issue No. 310. There is no dispute that the plaintiff has not served the defendants with notice(s) under Section 80 of the Code of Civil Procedure. However, on application (OMP No. 516 of 996) filed by the plaintiff he was granted leave to sue without complying with the requirement of service of such notice vide order dated 20-12-1996. Therefore, non-service of notice under Section 80 of the Code of Civil Procedure by the plaintiff on the defendants does not affect the suit in any manner. This issue is accordingly decided against the defendants.
Issue No. 411. Section 15 of the Act provides for preparing an existing land use map by the authorities and publish the same with a public notice inviting objections, if any, thereto which may be filed within 30 days from the date of publication of such notice. Thereafter, after considering the objections, the existing land use map shall be adopted with or without modification. Once these requirements of Section 15 are complied with, the existing land use as in the adopted map cannot be changed, save and except, with the permission of the Director of Town and Country Planning under Section 16 of the Act.
12. As to what was the land use of the land at the material time, as per the map prepared under Section 15 of the Act, Anil Biswas (DW-1) has stated as under :--
"The disputed area where the building is situated is residential area. I have not seen the then existing land use map. The land use at the relevant time was residential as per the land use map."
13. Thus as per the evidence led by the defendants, the concerned area at the relevant time was "residential area" and as per the land use map, the 'land' was residential. Therefore, the plaintiff was to seek permission for change in the 'land use' if it was to be used for a purpose other than "residential purpose". It is not the case of the defendants that the "land use" has been changed by the plaintiff from 'residential' to 'non-residential' purposes. The building in question is used for residential purposes as is evident from the statements of Chander Singh Brammta (PW-1) and Arun Kumar (DW-2) correctness whereof is not disputed by the defendants in any manner. Thus, this is not proved to be a case of change of land use.
14. As a result, it is held that the defendants have failed to prove that the plaintiff was required to seek requisite permission for changing the land use. Accordingly, this issue is held against the defendants.
Issue No. 5.
15. As per the plaint, the plaintiff after purchasing the land measuring 1-4 Bighas in the year 1984, submitted a plan for construction of a four-storeyed building on a part thereof and sought permission for construction under Section 31 of the Act. The requisite formalities of furnishing documents and depositing fee were complied with on 29-3-1984. PW-1 has stated so except that the plan was of a four-storeyed building. He has stated that the plan was of a five-storeyed building. This part of his statement being at variance with the pleadings, cannot be believed. It appears that the plan so submitted was for construction of a four-storeyed building as is evident from the further reading of the statements of PW-1 and PW-5 and the contents of Ext. PW-1/11. According to PW-1, Ext. PW-1/11 is the certificate regarding depositing of the fee as required to be deposited in the treasury while seeking permission for development under Section 31 of the Act. As per this certificate, a sum of Rs. 65/- had been deposited in the treasury by the plaintiff on 29-3-1984 under major head of accounts 084 Urban Development Receipt, i.e. the concerned head of accounts. Baldev Raj (PW-5) an official of Treasury, has also stated about this deposit on the basis of the records. Thus, it is fully established that a sum of Rs. 65/- was deposited by the plaintiff as was required to be deposited while seeking permission to construct a building. There is no dispute that this fee as payable on the proposed construction is deposited by way of a challan authenticated by the Town and Country Planning office which works out the fee to be deposited on the basis of the storeys in the plan as provided under Rule 12 of the H.P. Town and Country Planning Rules, 1978. As per this Rule, rate of fee for ground floor is Rs. 20/- and for the other floors is Rs. 15/- each floor. Thus, the fee of Rs. 65/- was deposited for ground floor and three other floors total four floors. This makes clear that the initial plan was of a four-storeyed building. PW-1 in his statement in rebuttal states that a plan for fifth storey was also submitted and after receipt of notice in the year 1995, a plan of five-storeyed building was also submitted. However, these subsequent acts are riot material for the purpose of this issue. On the preponderance of evidence on record, what can be said is that the plan submitted on or before 29-3-1994 was not for construction of a five-storeyed building but a four-storeyed building. The plan was submitted after compliance of the requirements as is evident from the statements of PW-1 and PW-2 and Ext. PW-1/11, and there being not even an iota of evidence in rebuttal, it is held that the plan was submitted by the plaintiff for construction of a four-storeyed building in accordance with the provisions of the Act but it is not proved that the plan was for construction of five-storeyed building. This Issue is accordingly disposed of.
Issue No. 616. The onus to prove this issue was on the defendants who have not led any evidence to prove it. Hence, this issue is held against the defendants.
Issue No. 717. While deciding issue No. 5 supra, it has already been found that the plaintiff submitted a plan for construction of a four-storeyed building on or before 29-3-1984. Plaintiffs case is that he awaited for grant of permission for six months but when the same was neither refused nor allowed, he proceeded with the construction on the basis of 'deemed permission'.
18. Sub-section (5) of Section 31 of the Act, as It stood at the relevant time, reads as under :--
"31. (5) If the Director does not communicate his decision whether to grant or refuse permission to the applicant within six months from the date of receipt of his application, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of six months;
Provided that in computing the period of six months the period in between the date of requisitioning any further information or documents from the applicant and date of receipt of such information or documents from the applicant shall be excluded."
19. It is evident on a bare reading of the aforesaid provisions that in case the Director does not grant or refuse the permission within six months of receipt of application, the permission shall be deemed to have been granted. There is unrebutted statement of PW-1 that nothing was heard from the Director for five or six months, therefore, the plaintiff started construction strictly according to the plan already submitted. There is no rebuttal in so far as construction of four storeys of the building in dispute is concerned.
20. It is, therefore, held that four storeys of the building in dispute had been raised by the plaintiff under deemed grant of permission to raise the same. This issue is accordingly held in favour of the plaintiff.
Issue No. 821. It is not the case of the plaintiff nor established that the building in suit is in a locality/area in which the provisions of the Act are not applicable or is for any reason whatsoever exempted from the operation of the Act. On the contrary, it is implicit in the case of the plaintiff as set out in the plaint that the construction in question was required to be carried out in accordance with the provisions of the Act. It is because of the applicability of the Act that the plaintiff himself had initially sought permission under Section 31 of the Act and now taken shelter to protect the construction under the "deeming" provisions of Sub-section (5) of Section 31 of the Act. It is, therefore, held that the plaintiff has failed to prove that the provisions of the Act are not applicable to the construction raised by him. This issue is accordingly decided against the plaintiff.
Issue No. 922. Plaintiffs case is that the construction of four storeys of the building in suit was completed as per the plan submitted under Section 31 of the Act by the end of the year 1985. PW-1 has stated that "after raising the construction" the building was occupied and they started living there "in 1985 itself. To corroborate this version, the plaintiff also produced water supply connection sanction dated 3-4-1984 (Ext. PW-1/3), copy of electricity bill dated 12-8-1985 (Ext. PW-1/4), telephone bill dated 1-8-1985 (Ext. PW-1/5), copy of Jamabandi for the year 1984-85 (Ext. PW-1/12). The authenticity and correctness of these documents is duly established in view of the statements of Tek Chand (PW-3), Junior Engineer, Municipal Corporation, Shimla, M.T Varghese (PW-4), Senior Accounts Officer, Telecom Department, Shimla and PW-1. A perusal of these documents clearly goes to prove that some residential accommodation was in existence on the land in question in the year 1984-85.
23. The learned Assistant Advocate General had submitted that PW-1 has admitted that the construction was completed in the year 1993, therefore, it is not proved that the construction was completed in the year 1985 as claimed by the plaintiff in the plaint, therefore, notice was served on the plaintiff within time. PW-1 in his statement in the affirmative has stated that four storeys had been constructed in the year 1993 but in his statement in rebuttal he had stated that after the year 1985 only the roof was laid on the already constructed portion in 1995. He asserted that the construction of four storeys was completed in 1984. He claims that the building had been occupied by the family in 1985 and a portion of it was rented out in 1993. Thus, what can be said on the basis of the evidence on record is that the construction of the building in question had been started in the year 1984 and construction of the building appears to have been done in a phased manner and construction of four storeys was completed in the year 1993.
24. There is no evidence on the record to prove that any part of the four storeys of the building in suit was constructed after 1993. On the contrary, even according to the contents of notice (PW-1/6) dated 14-9-1995, a four storeyed building existed on the spot.
25. According to PW-1, Ext. PW-l/B is the copy of the plan submitted by the plaintiff to the defendants in the year 1995 after receipt of show cause notice Ext. PW-1/6. He has further stated that this plan had no variations to the one submitted earlier. Though this statement of PW-1 remains unrebutted by the defendants, yet in view of the averments in the plaint, it is case of the plaintiff himself that his original plan which is deemed to have been sanctioned, was regarding construction of four storeys only whereas the plan Ext. PW-1/8 is of a five-storeyed building. Therefore, fifth storey of the building as indicated in Ext. PW-1/8 cannot be said to have been raised under the deemed grant of permission to construct four storeys. In these circumstances only the ground floor, first floor, second floor and third floor as per the specifications in the Ext. PW-1/8, are saved from the operation of the provisions of Sections 38 and 39 of the Act.
26. While deciding issue Nos. 5 and 7 supra, it has already been held that the plaintiff duly submitted a plan for construction of a four-storeyed building and on failure of the Director to grant or refuse the permission within six months, the plaintiff proceeded to raise four storeys of the building in suit under the "deemed grant of permission". Therefore, the defendants cannot now take action against the plaintiff under Sections 38 or 39 of the Act regarding construction of the four storyes of the building in suit as specified herein above.
27. It is evident from the statement of PW-1 in the affirmative that as per 'five storey plan' the construction has been completed. In view of the pleaded case of the plaintiff about submission of four-storeyed building plan, it is implicit in his statement that fifth storey, i.e. fourth floor of the building, had been added in Ext. PW-1/8 at the time of submission thereof and was not shown in the four-storeyed building plan earlier submitted. This fifth floor, thus, appears to have been constructed sometimes after September, 1995 as is the case of the defendants. DW-1 has stated that the building in suit was found "unauthorised construction" in September, 1995 and it consisted of four storeys at that time. It is so mentioned in the notice Ext. PW-1/6. DW-2 has stated that he sent some officials to the spot when it was noticed that construction work of fifth storey was going on, therefore, he issued notice (Ext. PW-1/10) dated 24-10-1996. He has further stated that after issue of the notice, he had also visited the site in the end of October, 1996. He has denied the suggestion that the building in suit consists of only four storeys and roof. It is, thus, evident that fifth storey of the building had been constructed by the plaintiff after issue of notice Ext. PW-1/6 dated 14-9-1995 and in view of the averments in the plaint itself, this fifth storey is not covered under the 'deemed grant of permission' to construct four storeyed building. Therefore, the provisions of Sections 38 and 39 of the Act are applicable to the fifth storey of the building in suit.
28. In view of the above discussion, it is held that the notice Ext. PW-1/10 is illegal, void and inoperative against the plaintiff qua the construction of four storeys, i.e. ground floor, first floor, second and third floor of the building In suit as specified in the plan Ext. PW-1/8. However, such notice qua the fifth storey (i.e. fourth floor) as mentioned in the plan Ext. PW-1/8, is valid and legal. This issue is accordingly decided.
Issue No. 1029. This issue was not urged at the time of arguments. Therefore, it is held against the defendants.
Issue No. 1130. In view of the findings given above, the plaintiff is entitled to the declaration and injunction qua four storeys of the building in suit and not beyond that. This issue is accordingly disposed of.
31. As a result of the findings recorded on issues 1 to 11 above, the suit is partly decreed for declaration that four storeys, i.e. ground floor, first, second and third floors, of the building in suit as per specification in plan Ext. PW1/8 had been raised under the 'deemed permission to construct' under Sub-section (5) of Section 31 of the Act and the notices Exts. PW-1/6 and PW-1/10 qua said four storeys of the building in suit are Illegal and inoperative against the rights of the plaintiff and the defendants are restrained from interfering with said four storeys of the building in suit. However, the relief over and above the relief hereinabove granted, is dismissed.
32. In the facts and circumstances of the case, the parties are left bear their own costs.