NEW SHIMLA RESIDENTS WELFARE SOCIETY Vs. SHIMLA DEVELOPMENT AUTHORITY
LAWS(HPH)-1997-2-9
HIGH COURT OF HIMACHAL PRADESH
Decided on February 27,1997

NEW SHIMLA RESIDENTS WELFARE SOCIETY Appellant
VERSUS
SHIMLA DEVELOPMENT AUTHORITY Respondents




JUDGEMENT

M.SRINIVASAN,C.J. - (1.)The petitioner is a Society formed by the residents of New Shimla, who purchased plots on allotment by the first respondent pursuant to a Scheme published by them. The main grievance of the petitioner is that under the scheme specific spaces were reserved for parks and subsequently some of the spaces have been, utilised for construction purposes thereby depriving the residents of the locality is concerned, the reply of the first respondent is that at the time when the original scheme was published the acquisition of the land had not been completed and the first respondent was not in possession of the entire land, which was proposed to be governed by the Scheme. It is further stated that after the acquisition was completed and by the time the entire land was taken in possession by die first respondent, it was found certain adjustments had to be made with regard to park spaces and the spaces for residential houses. Our attention is drawn to two plans. The plan which was originally published along with the original scheme and the plan which was later approved by the authorities after the adjustments were made. On a perusal of the two plans, which are filed by the petitioner himself as Annexure P -F and P -G and the first respondent as Annexures R -1 and R -2, it is seen that there is not much of devation from the original plan. It is not as if a gross violation of original plan. It is not as if the gross violation of original plan has been made by the First respondent. It is also seen on the other hand that the park spaces have been increased in the area after the revised plan, Annexure R -3 produced by the first respondent by giving the relevant details. In the original plan (Pocket -I) 542 sq.mts. was provided for park space whereas in the revised plan, they could provide only 156 sq.mts. area. Thus there was reduction of 386 sq.mts. In Pocket - 5, the original plan shows the park space as 948 sq.mts whereas in the revised place the space given was 353 sq.mts. Thus there was reduction of 595 sq.mts, but in Pocket Nos.3,4,6,7 and 8, there has been considerable increase in the area of the park spaces and the total increase is 1586 sq.mts as per Annexure R - 3. Thus under the revised plan the total area reserved for park spaces is in excess than the area reserved m the original plan by an extent of 605 sq.mts.
(2.)It is also pointed out by the first respondent that the original scheme as well as plan were only tentative and not Final and that was clearly indicated in the Scheme itself. Clause 11 of the original scheme reads as follows, in so far as it is relevant; "11. General. ,(i) Above terms and conditions will be followed generally, but S.D.A. reserves right to alter any of them in its absolute discretion, if and when considered necessary. (ii) S.D.A. reserves right to withdraw the scheme at any time."
(3.)Learned counsel for the petitioner submits that clause 11 should be read along with the note in clause 4, which deals with the scope of scheme. According to said note, cost of flats, independent houses and plots are tentative and S.D.A. reserves rights to increase the same depending upon actual cost of construction, escalation in cost of land, material, labour or any other reasons. According to learned counsel for the petitioner, this note specifically refers only to actual cost of construction, escalation of land cost etc, and, therefore, clause 11 should be understood to mean that only with respect to said matters the scheme was tentative and with regard to other matters, the scheme was Final. We are unable to accept this contention. While the note in clause 4, relates to a particular aspect of the matter, clause 11 is general and it applies to the entire scheme. Consequently, conditions in clause 11 enable the First respondent to alter the scheme if and -when necessary and that has been done in this case. It is not in dispute that the revised plan has been sanctioned and, therefore, no illegality can be attached there to. No grievance can be made by the petitioner in altering the park spaces, though as pointed out above, there is a real increase in the area and is not decreased.


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