Yash Pal Bansal Vs State of Hp and Others

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2024:HHC:14163

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.3157 of 2023

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Date of Decision: 12.12.2024

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____________ ___________________________________________ Yash Pal Bansal …….Petitioner Versus State of Himachal Pradesh & others … Respondents _______________________________________________________

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Coram:

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

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For the Petitioner: Mr. Vijay Singh Bhatia, Advocate. For the Respondents : Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for respondent Nos. 1, 2 and 5.

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Mr. Mukul Sood, Advocate, for respondent No.3. Mr. Y.P.Sood, Advocate, for respondent Nos.6 to 8. _______________________________________________________ Sandeep Sharma, Judge (oral):

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By way of instant petition filed under Article 226 of the

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Constitution of India, petitioner has prayed for following main reliefs:-

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“(i) That respondents No. 1 to 4 further be directed to restore back the Government land transferred fraudulently to the respondent No.6 to the State in a time bound manner and to take strict disciplinary action against the faulting officers/officials responsible for causing loss to the State of HP and respondents

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

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may kindly be directed to withdraw all sanctions of revised plans accorded vide No.1688-91 dated 19.04.2017 and to declare the building in question as illegal in Khasra Nos. 77, 82, 83, 84, 96, 97 and 98/1.

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(ii) That the respondents may kindly be directed to take legal action against respondents No. 6 to 8 for running Hotel “THE ORISON” or illegal hospitality unit and to stop these illegal activities immediately and disconnected electricity and water connections immediately.”

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2. Precisely, the grouse of the petitioner, as has been

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highlighted in the petition and further canvassed by Mr. Vijay Singh Bhatia, learned counsel for the petitioner, is that respondent No.6 besides causing obstruction to the public path, has succeeded in raising unauthorized construction on the Government land comprised in Khasra Nos.92, 93, 94, 97 and 98 in connivance with the Officials of the Revenue Department as well as Municipal Corporation, Shimla. Besides above, it has been also alleged in the petition that without there being any sanctioned map, private respondents have raised construction of seven storied building on the land, as detailed hereinabove, but yet no steps are being taken for removal of unauthorized construction as well as encroachment made by the private respondents on the Government land.

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Precisely, the facts of the case, as emerge from the record are that the petitioner and his wife Smt. Amita Bansal, who claim themselves to be owners in possession of Hotel Tara

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Regency constructed on Khewat No.9, Khatauni No.13, Khasra Nos. 20/1 and 22, situate at Mohal Tara Devi, Mauja Badhai, Tehsil and District Shimla, Himachal Pradesh had filed CWP No.5513 of 2010, titled as Yash Pal Bansal and others vs. Municipal Corporation, Shimla and others, alleging therein that respondent No.6 has encroached upon the public path and he purposely with a view to cause damage to the petitioner, who is in the business of hotel and industry, is not permitting the Municipal Corporation, Shimla to construct pucca path. Afore writ petition, having been filed by the petitioner, came to be disposed of vide order dated 12.03.2019, whereby respondent Nos. 1 to 3 herein came to be directed to construct public path. Since, while passing aforesaid order, respondent No. 6 came to be restrained from causing any hindrance in the execution of the said work, he filed LPA No.34 of 2019 before the Division Bench of this Court, laying therein challenge to aforesaid judgment passed by learned Single Judge, however same was dismissed vide judgment dated 11.05.2022. Since, despite there being direction contained in order dated 12.03.2019 passed by this Court in CWP No.5513 of 2010, respondent-Municipal Corporation, Shimla failed to construct the public path, coupled with the fact that respondent No.6 allegedly succeeded in raising construction on Government land adjacent to

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the public path comprised in Khasra Nos. 92, 93, 94, 97 and 98, petitioner herein approached this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.

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Pursuant to the notices issued in the instant proceedings, respondent Nos. 1 to 3 and 5 have filed reply. Respondent Nos. 1 and 2 in their reply filed through Settlement Officer, Shimla Division, District Shimla, Himachal Pradesh have categorically denied factum with regard to encroachment, if any, made by private respondents on the Government land. It is averred in the afore reply that settlement operations of Mohal Tara Devi, Tehsil Shimla(Rural) District Shimla, H.P., were completed in the year 2002-03, whereafter on 14.11.2007, respondent No.6 filed an application for correction of revenue entries under Section 37 read with Section 38 of the Himachal Pradesh Land Revenue Act, 1954 in the Court of Settlement Collector, seeking therein correction of new Khata/Khatauni No.6/9-10, Khasra Nos. 95 and 96, measuring 0-02-98 hectare, situate at Mohal Tara Devi, Tehsil Shimla(Rural), District Shimla, Himachal Pradesh in accordance with old Khasra No. 1383/742 area measuring 0-8 biswa (Annexure R-I). The Naib Tehsildar, Correction Cell, vide letter dated 27.03.2008 (Annexure R-II) submitted the field report. On the basis of field report dated

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09.01.2014, Naib Tehsildar, Correction Cell, the then Settlement Collector, Shimla, decided the case on 25.03.2015( Annexure R- IV), thereby ordering correction in the revenue records.

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Pursuant to afore correction order issued by respondent No.2, Khasra Nos. 94/2, 98/1, 95, 96, 97, Kita 5, measuring 0-03-17 hectares came to be recorded in the name of respondent No.6, whereas Khasra Nos. 91/1, 92, 93, 94/1 and 98/2, kita-5 measuring 0-03-35 hectares came to be recorded in the ownership of State of Himachal Pradesh and in the possession of Public Works Department.

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Though, in the instant case, precise allegation as came to be levelled by the petitioner against respondent No.6, is that respondent No.6 raised five storied building on the land, which already stood acquired by Public Works Department for widening of National Highway, but careful perusal of the documents adduced on record reveals that some of the land belonging to respondent No.6 was acquired for widening of the National Highway, even after acquisition of land by Public Works Department, sufficient land was available with respondent No.6. Reply filed by respondent Nos. 1 and 2 clearly reveals that during settlement, wrong revenue record

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was prepared with respect to the land owned by respondent No.6 as well as State of Himachal Pradesh, which ultimately came to be

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corrected with the passing of order dated 25.03.2015 (Annexure R- IV). It is not in dispute that order dated 25.03.2015, passed by Settlement Collector never came to be laid challenge in the appropriate proceedings before the appropriate forum by the respondent-State, rather petitioner herein laid challenge to the same by filing an appeal bearing No.22 of 2019, which is pending adjudication before the Divisional Commissioner. It also emerges from the record that respondent No.6 had filed Civil Suit No.100/1 of 2009 titled as Rajender Singh vs. State of Himachal Pradesh and others, thereby seeking direction to the respondent (petitioner herein) not to cause unnecessary interference in the ownership and possession of respondent No.6 on the basis of revenue record. However, since vide order dated 25.03.2015 passed by Settlement Collector, entries in the revenue record came to be corrected, afore suit having been filed by respondent No.6 was withdrawn.

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Careful perusal of reply filed by respondent Nos. 1 and

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2 clearly reveals that at present respondent No.6 is not in occupation of Government land, rather land of him already stands utilized by the Public Works Department for construction of National Highway. Reply filed by the respondent-Municipal Corporation, Shimla also belies the allegation of the petitioner that respondent Nos. 6 to 8 have succeeded in raising unauthorized construction. It

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stands duly established on record with the filing of reply by respondent-Municipal Corporation, Shimla that construction on the spot has been carried out by respondent No.6 strictly in terms of the approved map. Since map of respondents No.6 to 8 stood proved prior to passing of order by Hon’ble National Green Tribunal, thereby fixing limit of raising construction of 2 ½ stories, it cannot be said that Municipal Corporation, Shimla wrongly permitted private respondents to raise construction beyond permissible limit. Similarly, this Court finds that pursuant to order dated 12.03.2019, passed by this Court in CWP No.5513 of 2010, respondent-Municipal Corporation, Shimla, has already constructed public path comprised in Khasra Nos. 23 and 34. Though, reply filed on behalf of respondent No.5 i.e. District Tourism Development Officer, Shimla, suggests that private respondents had been running B & B Scheme in the name and Style of Orison, but for that purpose, appropriate authority is only Himachal Pradesh Tourism Department and in case, Himachal Pradesh Tourism Department finds any violation, it is always at liberty to take appropriate action in accordance law.

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Having scanned the entire material available on record, as discussed hereinabove, this Court is not persuaded to agree with learned counsel for the petitioner that private

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respondents after having encroached upon the Government land have succeeded in raising unauthorized construction, rather reply filed by the officials respondents, as has been discussed hereinabove, clearly reveals that there is no encroachment upon the Government land and construction of building is strictly as per the approved map. Similarly, grievance of the petitioner with regard to construction of pucca path already stands redressed, as is evident from the reply filed by respondent-Municipal Corporation, Shimla.

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Perusal of the pleadings adduced on record further reveals that the petitioner herein prior to filing of the petition at hand, filed civil suit against the private respondents and other persons alleging therein encroachment upon the Government land as well as obstruction on the public path, however before same could be decided, petitioner filed the instant petition, praying therein for the reliefs, as have been reproduced hereinabove. It also emerges from the record that Civil suit, having been filed by respondent No.6, was dismissed on 11.03.2024 and till date, no appeal, whatsoever, has been filed in the superior Court of law by the petitioner.

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