Himachal Pradesh High Court
Shri Shyam Sunder Son Of vs Shyam Sunder on 7 January, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
ON THE 7th DAY OF JANUARY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL MISC. PETITION MAIN (ORIGINAL) No. 499 of 2017
BETWEEN:-
SHRI SHYAM SUNDER SON OF
SHRI JAGANNATH, C/O GANPATI
GENERAL STORE, GURDWARA
ROAD, PALAMPUR, TEHSIL
PALAMPUR, DISTRICT KANGRA, ...PETITIONER
H.P.
(BY SH. KAPIL DEV SOOD, SENIOR ADVOCATE,
WITH SH. MUKUL SOOD, ADVOCATE.)
AND
1. SHRI VIKRAM KANWAR SON OF
LATE SHRI LAKSHMAN SINGH,
R/O DHAULADHAR COLONY,
NEAR ITI DARI, TEHSIL
DHARAMSHALA, DISTRICT
KANGRA, H.P.
2. SHRI VISHAV JEET SINGH
KANWAR, SON OF LATE SHRI
LAKSHMAN SINGH, R/O VPO
BHIRA, TEHSIL HAMIRPUR, ...RESPONDENTS
DISTRICT KANGRA, H.P.
(BY SH. NEERAJ GUPTA, SENIOR ADVOCATE,
ALONG WITH SH.NEERAJ KANWAR, ADVOCATE.)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the
Court passed the following:
ORDER
Plaintiff-petitioner has approached this Court against impugned order dated 18.9.2017, passed by learned ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 2 CMPMO No. 499 of 2017 Additional District Judge (III), Kangra at Dharamshala in Civil Miscellaneous Appeal No. 05-D/XIV/2016, titled as Vikram Kanwar and another Vs. Shyam Sunder, whereby order .
dated 21.3.2016 passed by learned Civil Judge (Junior Division), Palampur, District Kangra, H.P. in CMA No. 317 of 2015, preferred in Civil Suit No. 336 of 2015, titled Shyam Sinder Vs. Vikram Kanwar and another, directing the parties to maintain status quo, qua nature, possession, construction and alienation, on the suit land, has been set aside and application filed by the plaintiff-petitioner herein under Order 39 Rules 1 and 2 CPC has been dismissed.
2. Petitioner and respondents are plaintiff and defendants respectively, in the main suit before the trial Court, therefore, for convenience hereinafter they shall be referred as 'plaintiff' and 'defendants' respectively.
3. Plaintiff has filed a suit for decree of permanent prohibitory injunction, restraining the defendants from forcibly constructing illegal floors, i.e. first and second floors above the shop of plaintiff located at Ground Floor and from blocking the path of the plaintiff existing on the back side of the shop of plaintiff in any manner or raising structure ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 3 CMPMO No. 499 of 2017 thereon or encroaching upon qua the share of plaintiff in the land comprised in Khasra No. 1981 measuring 26-52 Sq.
meters.
.
4. As per plaint, case of the plaintiff is that he is owner in possession of 3800/9652 share of land comprised in Khasra No. 1981, with a share of 38 Sq. meters, and defendants are also co-sharers of the suit property and on 2.8.2015, defendant No. 1 started demolishing the old structure existing on the first floor above the shop of plaintiff and on objection raised by plaintiff, it was informed that only old structure was being demolished and new construction would start only after getting proper permission from the concerned Department after strengthening the base and structural strength of old existing building and plaintiff having faith in the words of defendant No. 1 allowed him to demolish the old structure of first floor. Thereafter on 8.9.2015, defendant No. 1 started raising new construction without asking or taking consent of the plaintiff, that too without any permission from the concerned authority or having any approval of the site and such construction was started without strengthening the base of the building or giving any ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 4 CMPMO No. 499 of 2017 structural strength or support to the building which caused seepage of water from first floor into the shop of plaintiff, resulting into heavy loss to the fittings of the shop and also to .
the stock of the shop.
5. It is further case of the plaintiff that due to construction work started by defendant No.1, there were cracks in the floor and walls of the shop of plaintiff and such illegal act can cause loss of life and property of plaintiff, other persons of vicinity as well as family of plaintiff, as the suit property has become unfit and unsafe.
6. Suit has been contested by the defendants by filing separate written statements, but on the same line, stating therein that plaintiff is owner of 38 Sq. meters shop located at ground floor of the building in reference and he is not co-owner in the entire property, but he has purchased the property in a sale conducted by Bank, as reflected in the latest jamabandi, vide mutation No. 1432. Therefore, it has been contended on behalf of defendants that plaintiff had no right, title over the lintel of the shop/building, as he had purchased the shop in his possession, but without any right on the lintel. It is claimed that defendant No.1 has right to ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 5 CMPMO No. 499 of 2017 repair, construct and re-construct the structure on the lintel of the ground floor as well as first floor, whereas plaintiff has no right, title or interest in those lintels and has no locus standi .
to interfere and/or stop the construction of the structure being carried out by defendant No.1 upon the lintel being owner thereof.
7. In written statements, it has been stated that permission to repair the first floor was taken from Municipal Council, Palampur on 6.12.2014 and thereafter repair work of the residential house was undertaken in July 2015 and after taking measures for safety, long life and strength of the building, pillars constructed by laying lintel on the first floor, repair work was completed before filing of the suit. It has been denied that plaintiff is co-owner in the property having right as co-sharer on the ground that plaintiff has purchased specific area in entire building as absolute owner of that particular portion.
8. Both written statements were filed on 23.11.2015, taking similar stand therein. It has been stated in the written statements that defendant No.1 has right to repair his residential house in the first floor and plaintiff has ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 6 CMPMO No. 499 of 2017 no right to interfere and obstruct the repair/construction work of the said defendant for having no right over the lintel of the ground floor as well as first floor, which is in exclusive .
ownership of the said defendant. Blocking of any path as alleged by plaintiff has also been denied. Jamabandi for the year 2009-2010 of Khasra No. 1981 has also been placed on record along with settlement deed, executed by Smt.Sushila Kanwar, mother of defendants.
9. Taking into consideration all facts, the trial Court had observed that plaintiff was in possession of some portion of joint holding as a co-sharer and thus was entitled to continue to be in possession of every inch of the land till the joint holding is partitioned and referring entry in the jamabandi for fortifying the claim of the plaintiff as co-owner of Khasra No. 1981, vide order darted 21.3.2016 till final disposal of the main case, parties were directed to maintain status quo, qua nature, possession, construction and alienation on the suit land comprised in Khasra No. 1981.
10. The aforesaid order was assailed by defendants by filing appeal, which was allowed on 18.9.2017 by learned Additional District Judge (III), Kangra at Dharamshala, ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 7 CMPMO No. 499 of 2017 observing that plaintiff by purchasing a shop in the entire two storied building cannot become co-owner or co-sharer over the entire Khasra No. 1981 as sale certificate clearly depicts .
that he has no right on the lintel and construction raised upon the lintel and, therefore, plaintiff did not become co-sharer in the suit land, but he got ownership and possession of one shop only and, thus, plaintiff was having right only over the shop measuring 38 Sq. meters having no right as co-owner on the lintel and construction above the shop. Further that when building was already two storied, no permission was required for construction carried on by defendant No.1 and there was no material placed before the Court regarding any construction of third storey being raised by the defendants and the repair work was already over and the plaintiff had failed to produce original documents showing ownership or any document of transfer of ownership to him in auction proceedings including description of shop and, therefore, the appeal preferred by the defendants was allowed and order passed by trial Court was set aside vide judgment dated 18.7.2019.
::: Downloaded on - 31/01/2022 23:35:16 :::CIS 8 CMPMO No. 499 of 201711. Plaintiff, with application CMP No. 11045 of 2017, has also placed on record Technical Report of Engineer along with photographs of foundation and .
construction of third storey being raised by defendant No.1.
Though placing on record the documents, as proposed in CMP No. 11045 of 2017, has been opposed vehemently by defendants, however, defendants have also placed on record permission to raise construction received from Municipal Council, Palampur vide communication dated 6.11.2017, Structural Stability Certificate and Soil Investigation from another Engineer and some photographs, alongwith reply to application, for taking on record for consideration.
12. Facts emerging from the material placed on record and submissions made by learned counsel for the parties are that old two storied building was being owned and possessed by one Sushila Devi, mother of defendants. Out of that 38 Sq. meters was given in absolute ownership, but without any right in lintel thereof, to Rajesh Kanwar, by his mother, enabling him to establish his business and the said shop was mortgaged by Rajesh Kanwar with the bank and for non-payment of loan, the shop was auctioned by the ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 9 CMPMO No. 499 of 2017 Bank and was purchased by plaintiff in the year 2015. There is another shop and Godown on the ground floor, which has been given by Sushila Kanwar to her son defendant No. 2 .
Vishwajeet Singh Kanwar. First floor has two parts, one is small shop and another is residential house. As per Jamabandi, the shop was sold by Sushila Kanwar to one Smt. Madhu, who further sold it to one Neerja Verma.
Residential house in first floor was given by Sushila Kanwar to her son defendant No.1 Vikram Kanwar, whereas lintel of the first floor was given to another son Rajesh Kanwar with right to construct residential house thereon. Lateron the lintel of first floor was sold by Rajesh Kanwar to his brother defendant No.1 Vikram Kanwar. As of now, plaintiff Shyam Sunder, defendant No.1 Vikram Kanwar, defendant No.2 Vishwajeet Singh Kanwar and Neerja Verma are four persons having their independent ownership upon separate and distinct portions of the property. Definitely they are not co-sharers or co-owners of the joint property. They are independent owners of respective portions, owned by them in one and the same building situated on Khasra No.1981.
Therefore, the trial Court had committed a mistake by ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 10 CMPMO No. 499 of 2017 treating them as co-owners with right in and upon every inch of the property by referring judgment in case of Bhartu Vs. Ram Sarup 1981 PLJ 204, wherein rights and liabilities of .
co-owners have been reiterated. Therefore, reasons assigned by the trial Court for passing of order by directing the parties to maintain status quo, qua nature, possession, alienation and construction on the suit land are not sustainable being misconceived.
13. Order passed by the trial Court has been set aside by learned Additional District Judge. Reasons assigned for that are that plaintiff has failed to place on record any document to substantiate his ownership with respect to shop and further being an owner of the shop in the ground floor, he has no right on the lintel and construction raised thereon and two storied building was already existing and, therefore, no permission was required to be obtained by defendants from the Municipal Council for construction and as defendants had already completed the repair work and nothing has been produced by the plaintiff establishing construction/proposed construction of third storey/second floor by the defendants, therefore, it was concluded that no ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 11 CMPMO No. 499 of 2017 prima facie case has been made out in favour of plaintiff to restrain the defendants from repairing their own premises on the first floor of the shop. Reasons assigned by Additional .
District Judge for passing the impugned order are also not logical, as case of the plaintiff is that by undertaking construction work on the lintel of ground floor, but without strengthening the base structure of the ground floor, the life and property of not only of the plaintiff, but also his family members and others is in danger. The said issue has not been considered by learned Additional District Judge.
14. The trial Court has wrongly treated the plaintiff as co-owner of the entire property, whereas learned Additional District Judge has returned findings that being owner of 38 Sq. meters shop in the property, plaintiff has no right to object the repair or construction work being carried out by defendants being owners of separate portion of the property, but ignoring plea of plaintiff that such construction is endangering life and property of plaintiff and others.
Reasons assigned by both Courts below are misplaced.
15. In written statements, defendants were completely silent about their plan to construct their second ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 12 CMPMO No. 499 of 2017 floor i.e. third storey of the building and any sanction in that regard, but it was pleaded that they have permission dated 6.12.2014 from Municipal Council, Palampur to repair the .
building. At the time of filing present petition in this Court, plaintiff has placed on record photographs Annexure P-10 indicating the plan of defendants to construct second floor on the existing building, causing further load on the old construction of ground floor.
16. In reply to the petition, plan to construct second floor, i.e. third storey has not been denied, rather has been admitted by stating that after having permission to carry out repair work vide letter No.1017, dated 6.12.2014, repair work was completed in May 2015 and lintel was laid in July 2015 after raising column from basement in the area occupied by defendants in addition to load bearing structure already existing so as to add extra strength to the structure and upto this stage work had already been completed when interim order dated 21.3.2016 of status quo was passed by the trial Court. It is further stand of the defendants that vide communication dated 20.10.2015, it was informed by Municipal Council that due to passing of interim order by the ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 13 CMPMO No. 499 of 2017 Court, map submitted by defendants with respect to first floor and second floor cannot be approved and it was returned.
However, after setting aside interim stay by learned .
additional District Judge vide order dated 18.9.2017, the authorities accorded the sanction in favour of defendants on 6.11.2017 and thereafter on 17.11.2018 in present petition, this Court has passed order to maintain status quo. It has been contended that being absolute owner of portion of the property, defendants are entitled to repair, construct, develop and enjoy the said property, but the plaintiff with malafide intention to harass the defendants by causing unnecessary inconvenience, monetary loss and jeopardizing their rights, has filed the suit and has obtained Technical Report, which is factually incorrect and further that Technical Report filed by the plaintiff cannot be taken into consideration in present petition, wherein order passed by the trial Court and first appellate Court are to be adjudicated on the basis of material available before those Courts at the time of deciding the application. It has been submitted that for carrying out any repair or construction work, permission of competent authority is required and for that purpose consent of the ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 14 CMPMO No. 499 of 2017 plaintiff is not necessary, and further that even otherwise also to harass the defendants, petitioner would not consent for years together and, therefore, by rights of parties to .
manage their respective property and referring the comparative hardship faced by the defendants, prayer for dismissal of the petition and vacation of interim stay has been made.
17. On behalf of plaintiff it has been contended that though plaintiff is not having any right over the lintel of the ground floor, but he has every right to protect his property and to act for safety of his life and property and the manner in which construction work is being undertaken by defendants, is definitely endangering the life and property, not only of the plaintiff, but also of the defendants or inhabitants of under construction floors proposed to be constructed without any support from the ground.
18. True it is that Technical Report of Engineers placed on record in this petition was not before the Courts below, but at the same time it is also an admitted fact that defendants were not having any sanction from the competent authority to construct second floor i.e. third storey and ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 15 CMPMO No. 499 of 2017 permission dated 6.11.2017 and structural stability certificate placed on record with reply to CMP No.9707 of 2017 was also not available on the record before the Courts below and .
it was not even in existence. There are number of photographs placed on record by both sides which may or may not be part of the record before the Courts below. The Technical Report also came into existence after passing of impugned order, like permission of construction granted by Municipal Council, Palampur which has also come into existence after passing of the impugned order. Keeping in view the nature of the pleadings, issue involved in present petition, and prayer of both sides to consider respective documents and photographs filed by them for adjudication of present petition, entire documents filed by parties are taken into consideration for resolving the issue in reference.
19. In Technical Report, filed by plaintiff, Engineer Tarilok Singh Thakur has reported as under:-
"Building Specification:-
While the claim of stability of any building we have to check what type of structure it is, whether it is load bearing structure or frame structure. It is a load bearing structure which has completed a period of forty years as said by my client and ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 16 CMPMO No. 499 of 2017 other specifications under his occupation regarding foundation walls, floor, wood work, finishing roof are as under:-
Foundation:-
.
As it is been visulazied by me that the building is old and foundation are made of, in mud mortar stone masonry which is been judge by digging excavation diagonally down round about two foot from the finished floor....
Walls:-
Walls of the occupied accommodation (left & right side) are made of 9" thick brick masonary in cement motor and other wall (partition wall) are also made up to 9" inch thick brick work which is maintained by cement mortar plaster.
Roof:-
The ground floor roof is made up of old RCC slab which is supported by two cross heavy girder rested on 9" inch brick work wall in the center of the accommodation of the shop as shown in the photograph No. 4 attached with this report. In which it is clearly visible spots of leakage of water in it.
General of condition:-
As I have mentioned earlier in my report that the original structure of ground floor is an old load bearing structure. If one person wants to raise another floor on that old load bearing structure, it is, firstly we advise to demolish complete the old structure totally to re-construct RCC frame structure from the ground floor itself with proper laid RCC foundation underground properly upto the required ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 17 CMPMO No. 499 of 2017 hard strata depth of rock for columns. Then all columns of the building structure will be tied together through tie beams at ground level and then cast the roof level slab from ground floor itself and vice versa .
for the next floors respectively. But, here in this case there is no concept adopted to erect RCC frame structure from ground level from gurudwara roadside. Which can be understood by photograph No. 5, 6, and 8 from front side and as well inside of the accommodation, which I explain as under how unethically blunder mistake has been taken place in this construction site i.e.
1. Extreme left side of the building at ground level there is no such column is erected from ground level. And it is visible at first floor in the left side of building it is been erected by chiseling common brick wall with adjoining building shown in photograph No. 6,9,10 shows clearly.
2. Then in first row the middle column of the first floor shown in photograph No. 9, 11. It has also not been erected from the ground floor instead of erected it on an old slab of ground floor.
3. Then extreme right side column of first row on first floor of the building erected is not right above on the ground floor column which is out of plumb with the first floor by 0.15m. Beyond further second row of the columns at the first floor extreme left and right side column are also erected by chiseling common wall of first floor of adjoining of building without being raised from the ground floor.::: Downloaded on - 31/01/2022 23:35:16 :::CIS 18 CMPMO No. 499 of 2017
4. Most dangerous thing is that middle column of second row has no connection from the ground level, it is also erected on ground floor slab itself only. Where maximum load of the first floor and .
another storey will come on the old slab of ground floor, which may cause sudden collapse of whole structure on it. Till now it is been only supported by ground floor by 9 inch thick brick wall which are also supported by one 12 inches and 9 inch steel girders provided by my client at ground level on 9 inch thick brick partition wall in L-Shape which is clearly visible by photograph No. 4 and in the same second row of adjoining column of first floor are also erected on above the ground floor lenter along with adjoining common wall from first floor itself only. It means that they are also not been erected from the ground floor. In the last I mean to say that only these heavy steel girders and 9 inch brick wall supported the whole load of old RCC slab of ground floor itself, along with ill mannered RCC structure of first floor too. As I mentioned earlier, Palampur area comes under seismic zone-V, which will be dangerous in present as well as in future for old load bearing structure of ground floor as well as ill-mannered constructed first floor on it for that particular areas. Observation:
From the condition and specification of this building seemed to be about forty years old. Thus the building has out lived its ordinary span of life. The life span of such load bearing building is forty to fifty ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 19 CMPMO No. 499 of 2017 years, therefore entire building is required to be completely dismantle from ground level and advisable to erect it completely new RCC framed structure from the ground level as one unit in whole .
instead of erecting it like wise now on the base of ill-
mannered construction above the ground floor which may cause havoc to self use of all property owner / tenants within this building as well adjoining building owner along with innocent common customers also."
20. To counter the aforesaid Report of Engineer, defendants have relied upon Structural Stability Certificate, issued by Civil Engineer, which reads as under:-
"Subject:- Structural Stability Certificate.
I/We hereby certify that the building of Sh/Smt./Ms. Vikram Singh proposed over Khasra No. 1981 Mauja/Ward No. Palampur Khas Tehsil Palampur District Kangra Himachal Pradesh has been designed by me/us, as per the India Standards Codes for general structural safety against natural hazards including earthquake protections and after soil investigation. The building is structurally safe."
21. There are two divergent views of Engineers.
Admittedly, structure of ground floor is a load bearing structure, i.e. lintel on 9" walls, whereas construction of structure of first and second floors is being carried out as a frame structure, i.e. on columns/pillars, therefore, a hybrid ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 20 CMPMO No. 499 of 2017 structure is coming into existence on the spot on completion of proposed construction, wherein RCC structure is being constructed on first and second floors on columns, but with .
only one row of columns starting from ground floor, whereas other two rows are starting from lintel of first floor. In these rows, some columns have been erected on 9" load bearing walls, whereas some columns have been erected on lintel itself. This RCC structure of first floor and proposed second floor appears to be a hanging floor structure on one row of columns raised from the ground floor. As per structural stability certificate, this design of structure is as per Indian Standards Codes for General Structural Safety against natural hazards including earthquake protections and after soil investigation and thus it has been claimed that building is structurally safe. Approved and sanctioned map/structure was brought in the Court but has not been placed on record.
It was appearing in that map that all columns were proposed from the ground floor. Whereas, in Technical Report, it has been concluded that some pillars have been raised on 9"
wall and some from lintel and it would be an ill mannered construction which may cause havoc to self use of all ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 21 CMPMO No. 499 of 2017 property owner/tenants occupying this building as well as adjoining building owners and innocent common customers also.
.
22. Every owner is entitled to enjoy, repair, construct or reconstruct the portion of building owned and possessed by him, but not by endangering life and property not only of others, but also of self and own family. Where there are number of owners of different specific portions in a common building, enjoyment of property to its fullest, carrying repairs and further construction work shall depend upon mutual understanding and cooperation by resorting to a solution beneficial to all stakeholders on the principle of 'Give and Take'. Someone may be more benefitted and someone may be less benefitted. Otherwise reconstruction or further construction in or upon old structure shall never be possible.
Where there is dead-lock, there, in absence of any Statute/Rules enacted to deal with such issues, Court has to pass appropriate order based on equity, conscience and keeping in view comparative injury/hardship.
23. In present case, parties are leveling allegations and counter allegations about non-cooperation and causing ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 22 CMPMO No. 499 of 2017 loss to each other. During pendency of present petition, an endeavour was made for exploring possibility of amicable settlement and parties/representative(s) of parties had also .
interacted through their respective counsel and at one point, it had appeared that some amicable solution shall be worked out but ultimately there was deadlock with respect to modalities of carrying out construction work on the spot.
Defendant No1 was ready to raise all pillars/columns from ground floor subject to providing space and time, by vacating the shop, by plaintiff for a reasonable time but plaintiff, having apprehension of collapse of lintel already laid and also for manner in which beams were constructed and proposed to be constructed for holding lintel above the ground floor, had expressed his reservation to allow raising columns/pillars in the walls of his shop whereupon defendant No.1 had also expressed impossibility of amicable resolution of dispute/problem resulting into deadlock.
24. Ownership of different persons in building in present case is akin to ownership of apartments in a building.
The Government of Himachal Pradesh has enacted HP Apartments Ownership Act, 1978 to provide for the ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 23 CMPMO No. 499 of 2017 ownership of an individual apartment and to make such apartment heritable and transferable property in Himachal Pradesh. But provisions of the said Act do not deal with .
situation like present one. Such situations are bound to arise in old buildings having apartments owned and possessed by different persons. Therefore, in public interest, there is need for Legislation or framing of Rules dealing with such eventualities.
25. There may be issues that on what parameters reconstructions shall be allowed; what will be rights and duties of owners; who shall undertake re-construction/ construction and on what terms; who shall decide the terms;
what will be the mechanism to deal with claims and counter claims of parties, on what basis necessity of re-
construction/construction shall be determined and so on.
Therefore, Act/Rules dealing with all such issue are warranted at the earliest.
26. Since long, practice of selling and purchasing parts of a building, flats, lintels or floors has developed, like other parts of the country, in Himachal Pradesh also.
Buildings containing such flats/lintels/floors, with few ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 24 CMPMO No. 499 of 2017 exceptions, are RCC constructions. It is well known that RCC structures, depending upon the strength of cement and iron used for such constructions, have limited life ranging .
from 40 to 100 years. There may be cases, where different portions of entire building have been sold to different persons and a specific portion/floor of such building, but not the entire building or all floors, may have fast decay for any reason, and for repair or re-construction thereof, there may be requirement of doing construction work or some alteration, modification or repair in other portion owned by another person who, for good condition of his portion, may not be thinking, or in agreement, for undertaking repair/re-
construction/construction work in his portion and may be considering it as an additional burden or nuisance to him and it may lead to deadlock between the parties, but definitely causing suffering to the person who really needs repair/re-
construction of his portion. There may be a case where out of total number of flats/floors, only some flats/floors may have been sold and rest flats/floors may be with the owner/ builder/developer and, in the meanwhile, for any reason there may be necessity of repair/re-construction or building ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 25 CMPMO No. 499 of 2017 may be unsafe for any reason requiring re-construction thereof, in that eventuality, how and in what manner the situation is to be handled, who shall be liable for what .
amount of consideration for undertaking such repair/re-
construction, would be difficult to ascertain in absence of any standard or mechanism/rules to cope with such situation.
There may be an instance where one owner of the portion may be considering the building unsafe, whereas another may be considering it safe and both, like in present case, may be able to get certificates, one declaring the building safe and another unsafe. Who will be the final assessing authority to deal with such situation. Such issues also require to be regulated by enacting Rules/Legislation. These are few examples which have emerged during hearing of the case. The Structure Engineers/Architects recognised and working in the field of building construction may be encountering large number of such issues regarding which no law or rules are in existence. Therefore, I am of the considered view that the Government should take initiative in this behalf and should constitute a Committee of well experienced Architects/Structure Engineers and legal ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 26 CMPMO No. 499 of 2017 luminaries to propose suitable law/rules to deal with aforesaid and like situations, in larger interest of the public and also to avoid unnecessary litigation and decreasing .
unnecessary load on the courts. The Chief Secretary to the Government of Himachal Pradesh is directed to ensure necessary Legislation or framing of Rules in the aforesaid field within six months from today.
27. In view of conflict in Expert opinion in present case, and also for deciding the modalities for carrying out construction as approved by the Municipal Council (now Municipal Corporation), I am of the view that it would be appropriate to have an expert opinion of Three Members' Committee consisting of Executive Engineer of HPPWD Division, Palampur and two other expert members/ Engineers, one each nominated by plaintiff and defendants, for examining the claim and counter claim of the parties with respect to safety of existing and proposed building including structure stability of hybrid construction proposed/undertaken on the spot and to suggest appropriate type of stable structure possible and permissible on the spot with safety of all for ensuring enjoyment of property by all and also to ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 27 CMPMO No. 499 of 2017 suggest mode and manner in which safe and stable structure can be constructed with estimated time and cost to be consumed for such construction work in the area of shop .
owned and possessed by plaintiff with specific finding as to whether raising of pillar/column would be sufficient or lintel has to be replaced and how and in what manner beam shall bear the load of lintel of first floor above the shop and whether there is requirement of tying the pillar/column with tie-beams at the ground level or not. The Expert Committee is directed to give comprehensive Technical Report for solution to deal with issue in reference with all possible mode of construction as permissible under law and necessary for safe and stable solution. Fee of the two private expert members nominated by the parties shall be paid by them respectively, whereas Executive Engineer of HPPWD shall be paid `30,000/- in total by making payment of `15,000/-
each by plaintiff and defendants. The Expert Committee shall submit its report to the trial Court, on or before the date fixed by the Trial Court after 15 days of passing of order, with a copy endorsed to Registrar General of High Court of Himachal Pradesh for placing on record of this file.
::: Downloaded on - 31/01/2022 23:35:16 :::CIS 28 CMPMO No. 499 of 201728. In view of above discussion, impugned order dated 18.9.2017 passed by learned Additional District Judge, Kangra at Dharamshala is set aside. For reasons assigned .
therein, order dated 21.3.2016, passed by the Trial Court is also not sustainable and, as such, the same is also set aside. However, till further order passed by the trial court, parties are directed to maintain status quo qua nature, possession, alienation and construction of suit property comprised in Khasra No.1981.
29. Parties are directed to appear before the Trial Court on 17.2.2022 with name and details of expert members of Committee to be nominated by them.
Thereafter, trial Court shall pass an order directing the Committee to submit its report within fifteen days thereafter and after receiving the report, the Trial Court shall proceed further in accordance with law, by taking into consideration the report submitted by the Committee.
30. In case Expert Committee purposes construction of pillars/columns of the building from the ground floor, then plaintiff has to provide space for construction thereof, which shall be completed within reasonable time as considered by ::: Downloaded on - 31/01/2022 23:35:16 :::CIS 29 CMPMO No. 499 of 2017 the Expert Committee necessary for raising such pillars/ columns/beams/tie-beams and in case new lintel is to be laid on such pillars/columns by dismantling earlier one, plaintiff .
as well as defendants shall share the cost as proposed by the Expert Committee. Further modalities for completion of proposed construction shall be determined by the trial Court either with consent of the parties or otherwise after hearing the rival contention of the parties on receipt of report of Expert Committee and appropriate order shall be passed with respect to grant or refusing the permission to raise construction during pendency of the suit.
31. Copy of this order be sent to the Executive Engineer, HPPWD Division, Palampur, District Kangra, Himachal Pradesh, for information and compliance.
32. Copy of this order be sent to the Chief Secretary to the Government of Himachal Pradesh, for compliance in terms of Paras 21 to 26.
Petition stand disposed of, so also pending application (Vivek Singh Thakur), th 7 January, 2022 Judge.
(Keshav) ::: Downloaded on - 31/01/2022 23:35:16 :::CIS