NARAIN SINGH BRAMTA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(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 S. 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 S. 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 along-with 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.