A writ petition challenged an order keeping a Municipal Corporation directive in abeyance. The Court held that despite private respondents filing a revision petition, the Corporation validly declared land a public path based on prior undertakings.
Impugned order quashed; Municipal Corporation directed to widen the public path.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 579 of 2017 Decided on: August 17, 2017 Madan Lal Verma ...Petitioner
Versus Municipal Corporation, Shimla and others ….Respondents ----------------------------------------------------------------------------Coram
Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice Hon’ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 Yes. ----------------------------------------------------------------------------For the petitioner Mr. B.C. Negi, Senior Advocate with Mr. Pranay Pratap Singh, Advocate. For the respondents: Mr. Hamender Singh Chandel, Advocate, for respondent No. 1. Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondent No.2. Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for respondent No.3. Mr. Ashwani Kaundal, Advocate, for respondent No. 4. ----------------------------------------------------------------------------- Per Sandeep Sharma, Judge:
Petitioner being aggrieved with encroachment having been made by private respondent, on the public path and with the order dated 30.1.2017, (annexure P-16), passed by Divisional Commissioner, Shimla, in case No. 13/2016, titled Mitter Singh versus Madan Lal & others, whereby, Commissioner, Municipal Corporation, Shimla, has been ordered to keep order dated 24.12.2016, passed by him, in
1 Whether the reporters of the local papers may be allowed to see the judgment?
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abeyance/in-operative, till the final disposal of revision petition having been filed by private respondent No.3, namely M.S. Thakur, filed instant writ petition, under Article 226 of the Constitution of India, seeking therein following main relief(s): -
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Municipal Corporation, Shimla, taking note of the specific affidavit dated 5.3.2003, 29.6.2004, 22.12.2006, having been filed by aforesaid respondents, wherein, they had categorically undertaken to surrender certain pieces of land from their lands, on share basis, solely with a view to widen the public path. Perusal of annexure P-6 clearly suggests that respondent No.3 had undertaken to surrender a strip of 30 cms of land to increase existing path to 3.05 metres. It is not in dispute as clearly emerges from the pleadings adduced on record by respective parties that aforesaid condition having been imposed by Municipal Corporation, Shimla, while granting approval, was not objected to by the private respondents, rather, they, themselves, furnished affidavits undertaking therein to surrender certain portion of land out of their lands to make public path already existing on the spot, more wider. It emerges from the material available on record that private respondents after having got their plans sanctioned, failed to honour the undertaking given by them, as a result of which, representations/ complaints on behalf of the petitioner as well as other residents of the area came to be received by Deputy Commissioner, Shimla as well as Municipal Corporation, Shimla. It also emerges from the record that Deputy Commissioner, Shimla, taking note of the aforesaid complaints, directed District Revenue Officer, Shimla, to carry out inspection on the spot (vide communication dated
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7.3.2015), who, in turn inspected the spot on 23.4.2015, after issuance of proper notices to all concerned and conducted inspection in the presence of various stakeholders including respondents No.3 and 4. District Revenue Officer, in its report (Annexure P-4), specifically concluded that Mr. M.S. Thakur, respondent No. 3, has raised construction of compound wall on the area being used for the purpose of public path and which path has also been shown in joint ownership of the cosharers, during partition, bearing Khasra Nos. 4348/1, 4349/1 and 4350, and has violated provisions of Building Byelaws, for which authority concerned is competent to proceed as per provisions of law. Deputy Commissioner, taking note of the aforesaid report, submitted by District Revenue Officer, requested the Commissioner, Municipal Corporation, Shimla, to take necessary action on the basis of report (annexure P-). It also emerges from the perusal of Annexure P-7 and Annexure P-8 that the Architect Planner, Municipal Corporation, Shimla, repeatedly, asked respondent No.3 to submit Tatima showing public path to the plot. Vide communication dated 27.10.2014, the Architect Planner, Municipal Corporation, Shimla, specifically reminded respondent No.3, that there is mandatory provision in the MC Building Bye-laws to have 3.05 metre wide path abutting to the one side of individual building/plot and at the time of revised sanction, said respondent had shown a path 2 Karam wide and 30 cm wide strip of land was
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surrendered by him for the provision of path and in the Tatima submitted by aforesaid respondent, path had not been shown abutting to the plot. Subsequently, Municipal Corporation, Shimla, vide order dated 24.12.2016, after having invited objections from the general public, for declaring public path, 77 metres in length and 3 metres in width, passing through Khasra Nos. 4346/1, 4348/1, 4350/1, 4350/2 and 4350/3, Baragaon, Block No. 7, Sector 6, Phase III, Shimla, for use of general public, declared path in question to be public path, under Section 226 of Municipal Corporation Act. It clearly emerges from the order dated 24.12.2016 (Annexure P- 1) that aforesaid order was passed by Municipal Corporation, after having taken note of the objections raised by respondents No.3 and 4, which were not found tenable in view of the fact that path was already available abutting to their properties and they had undertaken to surrender certain portions of their lands to make public path wider. It also emerges from the record (annexure P-14) that Municipal Corporation, floated tender for repair and maintenance of aforesaid road leading to Bara Gaon from HIMUDA Block Nos. 7, 11 and 12 (removal of slips and construction of retaining wall, Ward No. 23) and in this regard, work came to be awarded to contractor namely Kuldip Kumar, for a an amount of `74,945/-.
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preferred revision petition, annexure P-15, before the Divisional Commissioner, Shimla, who, vide order dated 30.1.2017, directed the Commissioner, Municipal Corporation, Shimla, to keep the aforesaid order dated 24.12.2016, annexure P-1, in abeyance/inoperative, till the final disposal of revision petition. In the aforesaid background, petitioner approached this Court, seeking reliefs, as have been reproduced herein above.
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which the land may be divided and path/streets will be so provided that it shall connect with a regular public or private street. While inviting attention of this Court to the sanctioned plan as well as undertakings given by private respondent, Mr. Negi, learned Senior Advocate contended that had private respondents not furnished undertakings, whereby they agreed to surrender certain portions of their lands for making public path more wide, their plans would not have been sanctioned, as such, they are required to be dealt with, in accordance with law.
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public path and as such present petition be dismissed being devoid of merit.
available on record, sees substantial force in the arguments of
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Mr. Negi, learned Senior Counsel, representing petitioner that an attempt has been made to hoodwink the authorities by not complying with the undertakings given by them by way of affidavits given at the time of getting their plans sanctioned. Since, building plans of private respondents were sanctioned subject to specific undertakings given by the private respondents, they can not be allowed to state at this stage that there is an alternative path available to the plot of the petitioner. There may be more than one paths leading to the plot of the petitioner but once, private respondent had undertaken to provide certain lands for the construction/ widening of public path, that too, to get their plans sanctioned, no fault, if any, can be found with the action of the Municipal Corporation, Shimla, declaring land in question, to be ‘public path’.
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challenge to order passed by Municipal Corporation, Shimla, declaring path in question to be a ‘public path’.
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Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.
(Sanjay Karol) Acting Chief Justice
(Sandeep Sharma) Judge
August 17, 2017 (Vikrant)
3 issues framed by the court
Whether the Divisional Commissioner acted correctly in keeping the Municipal Corporation's order declaring land as public path in abeyance pending a revision petition.
Whether the Municipal Corporation was justified in declaring the land as a public path and directing its restoration/widening.
Whether the petitioner is entitled to a writ of mandamus for the removal of encroachments on the public path.
3 provisions across 3 enactments
Madan Lal Verma
Municipal Corporation, Shimla
M.S. Thakur
Respondent No. 4
Sanjay Karol
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
