IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1376 of 2017.

Decided on 5.1.2018.

    M/s Holiday Hill.                                                  ....Petitioner.




                                                                         .

                      Versus

    State of HP and others.                                           ... Respondents.

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Coram The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.

The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 For the petitioner. : M/s. Adarsh K. Vashishta and Shyam Singh Chauhan, Advocates.

For respondents : Mr. Ashok Sharma, Advocate General with Mr. M.A. Khan, Anup Rattan, Addl. Advocate Generals and Mr. J.K. Verma, Dy. Advocate General for respondents No.1 and 6.

Mr. Dilip Sharma, Sr. Advocate with Ms. Nishi Goel, Advocate for respondents No.2 and 3.

                                        Mr. Amit Singh         Chandel,     Advocate      for
                                        respondent No.4.

Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate for respondent No.5.

Sanjay Karol, Acting Chief Justice(Oral).

Petitioner laid challenge to the notice issued by the H.P. State Pollution Control Board, "Him-Parivesh Bhawan", Regional Office Dharamshala, calling upon the petitioner to show cause as to why action for not complying with the various provisions of law be not taken.

1

Whether reporters of the local papers may be allowed to see the judgment?

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2. On 23rd June, 2017, when this matter came up for hearing on the asking of the petitioner, this Court passed the following order:-

"CWP No. 1376 of 2017 .

Notice. Mr. Anup Rattan, learned Additional Advocate General, Ms. Nishi Goel, Mr. Amit Singh Chandel and Mr. Vivek Sharma, Advocates waive service of notice on behalf of the respective respondents.

Petitioner undertakes to file an affidavit stating therein; (a) the extent of construction permissible as per the sanctioned plan; (b) the extent of construction actually carried out by them on the spot; (c) deviation made in actual construction as compared to the sanctioned plan; (d) the extent of construction which is otherwise compoundable as per the existing Municipal laws, more specifically under Section 31-A of the Himachal Pradesh Town and Country Planning Act; (e) the extent of construction which is otherwise not compoundable; (f) furnish an undertaking to this Court that in the event of the vires of the amendment incorporated in the Himachal Pradesh Town and Country Planning Act being struck down or otherwise, shall demolish the construction raised in excess of the sanctioned plans and beyond compoundable limits; and (g) comply with all other statutory Rules/Regulations/ Bye-laws under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981.

List on 30th June, 2017.

CMP No. 4828 of 2017 Notice in the aforesaid terms.

After having heard learned counsel for the parties, we direct that till the next date of hearing, no coercive action shall be taken pursuant to communications dated 15.05.2017 (Annexure P-2) and 15.06.2017 (Annexure P-4)."

3. Pursuant to such directions, the writ petitioner filed his personal affidavit, relevant portion whereof reads as under:-

"That the petitioner undertakes to file the affidavit to the following effects:-

A The extent of construction permissible as per The extent of construction which the sanctioned plan. was permissible as per sanctioned plan was 484.00 sq. meters.

B The extent of construction actually carried The extent of construction actually out by them on the spot; carried out by the petitioner is 767.12 sq. meters.

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C Deviation made in the actual construction as The deviation made in the actual compared to the sanction plan. construction as compare to the sanctioned plan is 283.12 sq. meters.

D The extent of construction which is otherwise The extent of construction which is compoundable as per the existing Municipal otherwise compoundable as per the Laws, more specially under Section 31-A of existing Municipal laws, more .

the Himachal Pradesh Town and Country specifically under Section 31-A of Planning Act; the Himachal Pradesh Town and Country Planning Act is 48.40 sq. meters.

E The extent of construction which is otherwise The extent of construction which is not compoundable; otherwise not compoundable is 234.72 sq. meters as per unamended Act.

F Furnish an undertaking to this Court that in The deponent undertakes that in the event of the vires of the amendment the event of the vires of the incorporated in the Himachal Pradesh Town amendment incorporated in the and Country Planning Act being struck down Himachal Pradesh Town and or otherwise, Shall demolish the construction Country Planning Act being struck raised in the excess of the sanction plans and down or otherwise shall close the beyond compoundable limits; construction raised in excess of the sanction plans and beyond Comply with all other compoundable limits.

statutory The Deponent undertakes that he G Rules/Regulations/Bye-laws under the will comply with all other statutory provisions of the water (Prevention & Rules/Regulations/Bye-laws under Control of Pollution) Act, 1974 and Air the provisions of the Water (Prevention & Control of Pollution) Act, (Prevention & Control of 1981. Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981.

4. We notice that the extent of construction carried out by the writ petitioner than the sanctioned plan is almost more than 60%, whereas the petitioner was entitled to raise construction in terms of the sanctioned plan to the extent of 484.00 square meters, he raised construction to the extent of 767.12 square meters. Undisputedly, such construction raised is even beyond the compoundable limits stipulated under the provisions of the H.P. Municipal Act, 1994 and Town and Country Planning Act, 1977.

5. We may also observe that several petitions of similar nature were filed and tagged together, which, as such, are also listed today. In all ::: Downloaded on - 09/01/2018 23:10:08 :::HCHP 4 these petitions, the common thread being that there is violation of Municipal Laws and that, the construction raised, is in excess, ranging from 20% to 700%, from the sanctioned plans. In fact, in one case no plans stand .

sanctioned, yet massive construction raised. We have individually taken up all these cases and passed separate orders in each one of the cases.

6. It is not in dispute that petitioner has benefited and gained advantage out of the orders passed by this Court. The only ground on which the writ petition was filed that the authorities had failed to consider the applicability of the provisions of Section 31-B of the Town and Country Planning Act. r

7. It is not in dispute that in a separate writ petition the vires of such provision came to be assailed and same has been held to be ultra vires in CWP No. 612 of 2017, titled as Abhimanyu Rathor Vs. State of H.P. and others decided on 22.12.2017. As such, the issue raised in the present writ petition is no longer res integra and the petition needs to be dismissed with the petitioner's undertaking to be enforced in accordance with law.

8. At this stage, Mr. Adarsh K. Vashishta, learned counsel for the petitioner, under instructions, from the petitioner seeks permission to withdraw the present writ petition, which is permitted to be withdrawn subject to the petitioner's depositing a sum of `2.00 lac (rupees two lac only), as costs to be deposited with the H.P. State Legal Services Authority, Kasumpti, Shimla 171 009. Petitioner undertakes to deposit the cost within a period of one week from today and affidavit of compliance be filed in the ::: Downloaded on - 09/01/2018 23:10:08 :::HCHP 5 Registry of this Court within the same period, for which purpose the matter be listed before Registrar (Judicial) on 15.1.2018.

In view of the above the writ petition is disposed of as having .

been withdrawn, so also pending application, if any. All interim order(s), if any, stand vacated.

(Sanjay Karol) Acting Chief Justice (Ajay Mohan Goel) Judge 5th January, 2018 (Guleria) ::: Downloaded on - 09/01/2018 23:10:08 :::HCHP