Allowed

Aditya Vihar Employees Housing Society Ltd. v. State of Hp

Himachal Pradesh HC10 Jul 2024LPA/89/2023

Case brief

AI extract

What is this about?

Letters Patent Appeals against a writ judgment quashing planning permission with relaxations granted to an employees' housing society near Shimla. The Division Bench held the writ petition barred by delay and laches, that internal notings cannot ground a decision, and that the State had statutory power to relax norms; appeals allowed and writ petition dismissed.

What did the court decide?

Judgment of the Writ Court set aside; writ petition dismissed; parties left to bear their own costs.

Aditya Vihar Employees Housing Society Ltd. Vs… — Landlord and Tenant | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:4835 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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LPA No. 89 of 2023 a/w LPA No. 248 of 2023. Reserved on: 02.07.2024. Date of decision: 10.07.2024.

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LPA No. 89 of 2023

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Aditya Vihar Employees Housing Society Ltd.

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…Appellant Versus State of H.P. & Ors. …Respondents LPA No. 248 of 2023 State of H.P. & Ors. ...Appellants versus Baldev Singh Atri & Ors. ...Respondents.

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Co ram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting? Yes

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For the Appellants: Mr. Ankush Dass Sood, Sr. Advocate with Mr. Vivek Negi and Mr. Gaurav Chaudhary, Advocates, for the Appellant in LPA No. 89 of 2023.

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Mr. Anup Rattan, A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. Mr. J. S. Guleria and Mr.

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Raj Negi, Dy. A.Gs., for the appellants in LPA No. 248 of 2023.

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For the Respondents: Mr. Anup Rattan, A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. Mr. J. S. Guleria and Mr. Raj Negi, Dy. A.Gs., for the respondents-State in LPA No. 89 of 2023.

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Mr. Anil Chauhan, Advocate, for respondent No. 5 in LPA No. 89 of 2023.

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Mr. B. S. Chauhan, Sr. Advocate with Mr. Ashish Verma, Advocate, for respondent No. 7 in LPA. No. 89 of 2023 and for respondent No. 1 in LPA No. 248 of 2023.

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Tarlok Singh Chauhan, Judge

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Since both these Letters Patent Appeals emanate

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from a common judgment rendered by the learned Writ Court, therefore, they were taken up together for hearing and are being decided by a common judgment.

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Brief facts of the present case are that one Baldev Singh Atri, an Advocate by profession, approached this Court by filing CWP No. 4398 of 2019. (Hereinafter shall be referred to as the writ petitioner and all the other parties including the appellants herein shall be referred to as the writ respondents).

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It was averred in the petition that the writ petitioner was invoking extraordinary writ jurisdiction to seek redressal of his grievance on account of unwarranted acts, conduct of the official respondents whereby the Aditya Vihar Employees Housing Society Ltd. (wrongly written as respondent No. 6 in place of respondent No. 7) was raising unauthorised construction in violation of Town and Country Planning Act, 1977 (for short ‘T&CP Act’), Town and Country Planning Rules, 2011 (for short ‘T&CP Rules’), (as amended upto 2016), Interim Development Plan, 1979 (amended from time to time).

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It was further averred that the writ petitioner is the owner of immovable properties entered in Khasra No. 358/2, 359/1, 360/, 361/2, 364/2 and 366/1 Kita 6 total measuring 0-25-53 hectare (2553 sq. meters) in Up Mohal Dochi, Tehsil and District Shimla, H.P. and mutation to this effect has been entered on 29.11.2014.

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Writ respondent No. 7-Aditya Vihar Employees Housing Society Ltd. (for short ‘Society’) had purchased land comprised in Khasra No. 35/1, 360/1, 362/1, 363/1, 364/1 Kita 5 total measuring 0-25-55 hectare (2555 sq.

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meters) and mutation to this effect has been entered on 28.11.2015.

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The land purchased by the Society is abutting the land of the writ petitioner as shown in the Musabi. The nature of the land at the time of the purchase by the Society was agriculture.

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The writ petitioner has sought information under Right to Information Act, 2005 (for short ‘RTI Act’) from Special Area Development Authority (for short ‘SADA’) regarding the alleged planning permission accorded to writ respondent No. 7-Society with respect to the land entered in Khasra numbers mentioned above.

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The SADA vide information dated 01.07.2019 informed that the sanction was accorded for five (5) residential blocks having six (6) storeys plus Attic, Community Hall, Temple and four (4) shops.

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It was averred that the writ petitioner again sought information under RTI Act from SADA as to whether the alleged planning permission was accorded to the Society strictly in accordance with T&CP Act, 1977 as applicable on 06.04.2017, T&CP Rules, 2014, as amended upto 2016 and Interim Development Plan, amended from

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time to time. However, the SADA did not supply the complete information alleging therein that the information sought is not covered under the provisions of RTI Act as per Section 2(F) of RTI Act, 2005.

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It was further averred that the alleged building plan that was sanctioned by the SADA in favour of respondent No. 7-Society on 06.04.2017 was in completel violation of T&CP Act, Bye-laws, Interim Development Plan and T&CP regulations as evident from the site plan (Tatima) wherein distance between blocks were shown at level 1504 meters, 1508 meters, 1512 meters and 1516 meters. The concerned authorities did not carry out the investigation before according the alleged sanction in favour of respondent No. 7-Society. No trees were shown in the proposed plan whereas there were number of trees on the land purchased by respondent No. 7-Society. No permission for change of land use was sought/accorded in favour of respondent No. 7-Society before submission of plan. The alleged plan was sanctioned contrary to the mandatory provisions of the T&CP Act. Section 15-A and Section 16 of the Act have been deliberately violated. The sub-division of the plots are mandatory as per Section 16-C of T&CP Act

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and permission for change of land use was mandatory before according sanction.

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It was then averred that the members of the Society comprise of the employees of H.P. Secretariat, Director, T&CP and of Special Area Development Authority and, therefore, the Society in connivance with the other official respondents in the writ petition have got approved the alleged plan by intentionally ignoring the statutory rules and regulations enacted for according sanction.

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It was averred that the petitioner had also filed complaint to the respondents regarding unauthorised construction being carried out by the Society at the site, cutting of slope of land/hills having slope of 70-80 degrees. 13. The SADA sent a reply dated 11.01.2019 that the sanction accorded to the Society was after getting all relaxation from the Government. It was further stated in the reply that notice had been issued under Section 39(1) of the T&CP Act, 1977 to the Society, however, according to the writ petitioner, no action has been taken thereafter till date and the construction at the site was still continuing in violation of rules and regulations.

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It was further averred that the alleged sanction by the State is beyond the statutory provisions and in violation of law. It was also averred that the Interim Development Plan was enacted for Shimla Planning Area for the purpose of carrying development activities in the year 1979 and was further amended from time to time, however, till date the development plan has not been enacted by the respondents despite directions issued to this effect by the learned National Green Tribunal (for short ‘NGT’).

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It was averred that in term of Chapter-10 of the Interim Development Plan, as amended by the Director, Town and Country Planning in exercise of power under subSections 4 and 5 of Section 17 of T&CP Act, 1977 on 22.08.2002, regulation 10.4.1.2(x)(e), the SADA by way of said amendment had imposed number of restrictions for according sanction and now only 4+1 (Parking) floors wherever feasible could be sanctioned for the residential purpose in an area which falls within SADA. The amendment further stipulated that the planning permission shall be granted in view of the general provisions contained in Annexure-III annexed with the amendment.

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It was averred that the alleged plan was sanctioned contrary to the provisions/amendment carried out in the Interim Development Plan. Additional floors were illegally sanctioned by respondent No. 5. There was no provision for granting exemptions for keeping the required set backs on all sides of the buildings. The State has no legal right to accord sanction contrary to the provisions of Interim Development Plan and T&CP Regulations and as such action is violative of Articles 14 and 300A of the Constitution of India and principle of natural justice. Hence, the alleged sanction Annexure P-5 to construct six (6) storeys+Attic is contrary to T&CP Act, Rules, Interim Development Plan and T&CP Regulations.

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On the strength of the aforesaid averments, the writ petitioners prayed for following reliefs:-

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“(i) To direct the respondents to stop all type of construction activities being carried out by the respondent Non.7 on Khasra No. 358/1, 360/1, 362/1, 363/1, 364/1 Kita 5 total measuring 0- 25-55 hectare (2555 Sq. Meters) situated at Up Mohal Dochi, Patwar Circle Kasumpti, Tehsil and Distt. Shimla HP being violative of provisions of T&CP Act, 1977, Interim Development Plan, 1979, T&CP Rules, 2014 amended upto 2016.

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ii) To direct the respondent No.1 to cancel the planning permission, Annexure P-5 alleged to have been sanctioned in favour of respondent No.7 which is contrary and violative of Act, Bye –laws, Regulations, rules and Interim Development Plan.

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iii) To direct the respondent No.2 and 5 to initiate appropriate proceedings against respondent No.7 under T&CP Act, 1977 for carrying out unauthorized construction on the basis of notice issued on 19.12.2018, Annexure P-9 and P-10.

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iv) To direct the respondent No.7 to restore the land to its original position which have been indiscriminately/unauthorisedly damaged and dug out including the land which is owned by the State of H.P. which is allegedly used as passage ”

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A common reply was filed on behalf of the writ respondents No. 1 to 5 i.e. State through the Chief Secretary to the Government of Himachal Pradesh, Principal Secretary (T&CP) to the Government of Himachal Pradesh, The Director Town and Country Planning Himachal Pradesh, Principal Chief Conservator of Forests, Himachal Pradesh and Deputy Commissioner-cum-Chairman, SADA, wherein preliminary submissions regarding the petitioner having failed to make out grounds for interference, the petition

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being devoid of merit, abuse of the process of law, being barred by the principles of constructive res judicata under explanation IV of the Section 11 of the Civil Procedure Code. The petitioner not having approached the Court with clean hands and having deliberately chosen to mislead the Court by distorting facts and raising patently false allegations against the respondents and was thus liable to be dismissed.

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On merits, it was contended that the petitioner has no locus standi to file and maintain the present writ petition. It was averred that the Society had submitted an application for grant of planning permission for construction in the name of Aditya Vihar Employees Housing Society bearing Khasra Nos. 358/1, 360/1, 362/1, 363/1, 364/1 measuring 2555.00 sq. meters at Up Mohal Dochi, Tehsil & District Shimla, dated 25.06.2016. The application was received and diarized on 29.06.2016 with a request for relaxation in Floor Area Ratio (for short ‘FAR’) and back side set back.

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Since the proposal for constructing the Society involved relaxation in the rules and building bye laws, the

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case of the petitioner was forwarded to the government by the SADA vide its letter dated 27.09.2016.

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The respondents-State had then conveyed its approval for construction of five residential blocks+ parking storey alongwith the approval of relaxation in FAR and set backs for the construction of colony in favour of the Society vide its letter dated 02.12.2016, which in turn was conveyed to the Society vide letter dated 19.12.2016.

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The Society in pursuance of the relaxation granted by the State submitted its case online alongwith documents and detailed drawing and planning permission was accorded by the SADA in accordance with the relaxation granted by the State Government and thus, there is no violation of H.P. T&CP Act, 1977 and the Rules framed thereunder and, therefore, the writ petitioner was not entitled to invoke extraordinary jurisdiction.

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In addition to the above, it was averred that the complaint of the petitioner dated 14.12.2018 had been received and in compliance of the complaint the site inspection was jointly conducted by the officers/officials from the Department of T&CP i.e. Planning Officer, Divisional Town Planning Office, Shimla alongwith two Junior

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Engineers, SADA on 18.12.2018, On the basis of the site inspection so carried out, a statutory notice under the provisions of Section 38 of the H.P. T&CP Act, 1977, dated 19.12.2018 and notice dated 19.12.2018 under Section 39A(1) of the Act ibid to discontinue and to stop the development were issued to the Society.

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The Society filed a detailed reply alongwith typical cross section of the area in question. As per the reply, it was proposed by the Society as per the typical cross section that the Society would construct two breast walls of 4.00 meters and 3.0 meters height respectively instead of the sanctioned 3.50 meters breast wall to protect and consolidate the land profile and to prevent further slide/slippage of the land at site of construction and thereby the Society agreed principally to reduce the width of the parking floor which was initially sanctioned in their favour for Block No. 3 thereby the depth of the cutting would also reduce and the proposed blocks would be feasible in accordance with the sanction accorded in favour of the Society.

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As regards the Interim Development Plan, it was averred that it was subsequently amended vide

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notifications dated 13.08.2015 and 28.06.2016. By these amendments, Chapter-10 of the Interim Development Plan for the Shimla Planning Area para 10.4 had been substituted wherein the restriction of number of storeys had been removed and the number of floors were regulated by specifying the height of the building and floor area ratio (for short ‘FAR’) rather than specifying the number of floors and, therefore, the notification dated 22.08.2002 was not attracted in the instant case.

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It was further averred that the planning permission that had been granted to the Society was in consonance and in accordance with the relaxation in the rules, regulations and bye laws granted by the State Government. It was not denied that as per the judgment dated 16.11.2017, passed by the NGT in case titled as Yogendra Mohan Sengupta vs. Union of India & Ors (O.A. No. 121 of 2014) , not more than two storeys and attic could be sanctioned for the residential purpose. However, it was clarified that since the planning permission of the Society was granted/sanctioned prior to the passing of the judgment of the NGT, therefore, the restrictions imposed therein were not applicable to the case of the Society.

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It was also averred that the brother of the petitioner had earlier preferred an Original Application No. 1045 of 2018, titled as Dalip Singh Atri vs. State of H.P. & Anr. before the NGT on the same and similar grounds. As per the prayer clause of the aforesaid application, identical reliefs had been sought from the NGT and copy of the original application, annexed with the reply as Annexure R- XIII. It was averred that the NGT vide its order dated 18.12.2018 had directed the respondent-State to furnish report of factual aspect Annexure R-XIV.

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In compliance to the aforesaid order, detailed status report had been submitted to the NGT, (annexed with the reply as Annexure R-XV). The NGT after considering the report filed by respondents No. 3 and 5 i.e. Director, Town and Country Planning and Deputy Commissioner-cumChairman, SADA, disposed of the petition vide its order dated 29.03.2019 (Annexure R-XVI). The petitioner being fully aware of all these facts that he had intentionally concealed and suppressed these material facts which were necessary for adjudication of the present case.

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It was further averred that after passing of the aforesaid order by NGT on 29.03.2019, the Society

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submitted a letter dated 02.04.2019 seeking permission to carry out construction and the Deputy Commissioner-cumChairman, SADA vide its letter dated 15.05.2019 permitted the Society to carry out construction work strictly in accordance with the approved plan and in accordance with the typical cross section.

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It was denied that huge cutting of the hills having slopes of more than 70 to 80 degrees had been carried out by the Society. It was further averred that before granting planning permission the site was inspected and it was noted that the slope of the hill was less than 45 degree. As per the preliminary site inspection report conducted by the Deputy Commissioner-cum-Chairman, SADA, it was observed that no debris/muck had been dumped outside the plot.

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The H.P. State Pollution Control Board, which had been arrayed as respondent No. 6 filed its separate reply, wherein it stated that it was not competent authority to grant construction permission, therefore, the writ petitioner has unnecessarily arrayed it as a party-respondent.

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The Society, which has been arrayed as respondent No. 7 in the writ petition filed a separate reply

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wherein certain preliminary submissions have been made to the effect that the respondent was a Society constituted under the relevant provisions of the H.P. Societies Registration Act by the Employees of H.P. Secretariat for bonafide use and with the sole purpose of construction of residential houses for themselves and had purchased the land in question. After purchase of the land, the Society had submitted an application seeking planning permission for construction of the Society on the aforesaid land with a request for relaxation in FAR and back side set back. Thereafter, identical averments as made by the official writ respondents No. 1 to 5 in the preliminary submissions were also made by this respondent.

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In addition thereto, it was averred that the respondents had purchased the land in question from one Shankar Singh son of Durga Singh, who was the real brother of the petitioner for huge amount/price and this land was situated adjoining to the land of the writ petitioner. Hence, the writ petitioner out of jealousy from the very beginning was inclined and went on to create unnecessary problems that too without having any locus standi and tried to stall the construction of the structure. Thereafter, the details of

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the litigation initiated by Dalip Singh Atri, the brother of the petitioner have been set out in detail.

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It was further averred that since the order passed by the NGT had attained finality for all intents and purposes as the petitioner therein, who is the real brother of the present petitioner has not assailed the same further, therefore, now even the writ petitioner cannot file the instant petition.

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On merits, it was averred that the Society had been carrying out construction of the unit/project as per the approved plan and cutting had been done within permissible limit. As on the date of filing of its reply, the cutting work was over and four towers had already been completed, while the construction of fifth tower was in progress. The brick work of two blocks was completed, the brick work for third tower was in progress. Otherwise also the construction work was being monitored by the competent authority from time to time by visiting the site and no violation had been found on the spot.

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It was specifically denied that there were trees on the land purchased by the Society and it was averred that the Society had otherwise obtained necessary NOC

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from the Divisional Forest Officer, Shimla and further the revenue records would also demonstrate that there were no trees standing over the land purchased by the Society.

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It was averred that since the Society had spent substantial amount for the construction of the structure in question, the writ petition was not maintainable, at such belated stage and was thus liable to be dismissed due to writ petitioner’s own acts, deeds and acquiescence.

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The writ petitioner filed rejoinder to the joint reply filed on behalf of respondents No. 1 to 5, wherein, he reiterated the averments made in the writ petition and denied the averments as raised in the reply by these respondents.

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To similar effect is the rejoinder filed to the reply filed by the Society, wherein again the writ petitioner reiterated the averments made in the writ petition and denied those of the replies filed to the writ petition.

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The learned Writ Court allowed the writ petition to the following effect:

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(i) The plea of the writ respondents assailing the locus standi, bonafides of the writ

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petitioner, acquiescence and the further plea of delay, laches, etc. were all negated/rejected; (ii) certain internal correspondences between the departments were also relied upon to hold that the State Government had taken the decision of granting relaxation to the Society, which was not only without jurisdiction but also arrived at in a most casual manner;

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(iii) it was held that the State Government was not vested with any authority for granting planning permission or to relax the prescribed norms; and

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(iv) it was held that the Society could not derive any benefit of Clause 10.4.1.2 (x) (viii) of the Interim Development Plan;

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Aggrieved by the judgment passed by the learned Writ Court, the State as also the Society have filed the instant appeals.

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It is vehemently argued by Mr. Anup Rattan, learned Advocate General for the State that the learned Writ Court erred in holding that the State Government has not been vested with any authority to grant planning permission or to relax the prescribed norms.

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Whereas, Mr. Ankush Dass Sood, learned Senior Advocate duly assisted by Mr. Vivek Negi, learned Advocate would argue that the entire findings rendered by the learned Writ Court deserve to be set aside given the fact that the learned Writ Court has failed to take into consideration the pleas of locus standi, acquiescence, waiver, estoppel in its right perspective and has further either been misinterpreted or wrongly relied upon the certain provisions of the Act, Rules and Regulations and thereby reached a wrong conclusion. It is also urged that the internal department notings could not have been made basis for deciding the petition particularly when these had not been communicated to either the writ petitioner or the Society.

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On other hand, Mr. B. S. Chauhan, learned Senior Advocate duly assisted by Mr. Ashish Verma, learned Advocate, would argue that the learned Writ Court has rightly allowed the writ petition in the given facts and circumstances and has further correctly interpreted the various provisions of law. As such these findings need not be interfered with.

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We have heard learned counsel for the parties

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and have gone through the records of the case.

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(i) The plea of the writ respondents assailing the locus standi, bonafdes of thei writ petitioner, acquiescence and the further plea of delay and laches etc. were all negated/rejected.

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It is not in dispute that prior to the writ petitioner

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filing the instant writ petition before this Court on 23.12.2019, his real brother Dalip Singh Atri had approached the learned NGT by filing Original Application No. 1045 of 2018, titled as Dalip Singh Atri vs. State of H.P. & Anr. (Annexure R-XIII). It is also not in dispute that identical grounds as raised in this petition were raised in the said original application also. The petition came up before the NGT on 18.12.2018 (Annexure R-XIV), on which date the following orders came to be passed:-

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“ORDER

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1. Prayer in this application is for compliance of the directions of this Tribunal dated 16.11.2017 in Original Application No. 121/2014, Yogindra Mohan Sengupta Vs Union of India, restricting and prohibiting illegal construction activities at Shimla in violation of environmental laws. According to the applicant, even after the said order, six storyd residential building has been constructed by Aditya

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Vihar Employees Society, Housing Colony by cutting the slope of more than 70-80 degrees. The order of this Tribunal was that no construction activity can take place where slope is more than 45 degrees/35 degrees.

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2. The allegation in the application needs to be verified before any further action is taken.

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3.Accordingly, we direct the respondent no. 3, Director, Department of Town and Country Planning, Govt. of Himachal Pradesh and respondent no. 5, Special Area Development Authority, Shoghi, Himachal Pradesh to furnish report of factual aspect by e-mail at [email protected] to this Tribunal within one month.

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4. Copy of this order be sent to respondent nos. 3 and 5 by e-mail.

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The applicant may serve a set of papers on respondent nos. 3 and 5 and file an affidavit of service within one week.

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6. If any construction activity is still going on illegally, the respondent no. 5 may take appropriate steps in the matter and also furnish an action taken report.

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7. Needless to say that order of National Green Tribunal is binding as a decree of Court and noncompliance is actionable by way of punitive action including prosecution, in terms of the National Green Tribunal Act, 2010.”

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In compliance to the aforesaid, a detailed status report was submitted by the Chairman, Special Area

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Development Authority, to the learned NGT (Annrexure R-XV). The learned NGT after considering the status report, disposed of the petition by observing as under:-

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“Order

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Issue for consideration is the alleged violation of environmental norms by Aditya Vihar Employees Society, Housing Colony during construction activities at Shimla.

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Vide order dated 18.12.2018, a report was sought from the Director, Town and Country Planning Department, Himachal Pradesh and the Special Area Development Authority, Himachal Pradesh.

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Accordingly, a report has been received vide e-mail dated 17.01.2019 from Town and Country Planning Department to the effect that requisite sanction plans have been obtained and in view of the above no further order is necessary at this stage.”

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It is also not in dispute that the petitioner was fully aware of all these facts but had concealed and suppressed these while filing the writ petition. Still further, the petitioner waited for the Society to raise substantial construction and only thereafter filed the instant petition. This is clearly evident from not only the photographs annexed by the petitioner himself with the writ petition but is also evident from the reply filed on behalf of the Society,

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which indicates that the Society after the grant of approval of relaxation in FAR and set backs for construction of colony in favour of the Society vide letter dated 02.12.2016, as on the date of filing of the reply, had carried out the entire cutting work and four towers had already been completed while the construction work of fifth tower was in progress. The brick work of two blocks was completed and the brick work for third tower was in progress. Yet the petitioner chose to remain silent for three years, save and except, filing of the complaint for the first time with the official respondents on 30.11.2018 i.e. after nearly two years after the grant of permission in favour of the Society.

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We may note that on 25.04.2024, the learned Principal Bench passed the following order:-

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“Learned Senior Counsel for the appellant in LPA no. 89 of 2023 seeks time.

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The 5^th respondent in LPA No. 89 of 2023 shall file status report as to whether any construction activity including laying of roof is being done by the members of the appellant in the subject land.”

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In compliance to the order, Deputy Commissioner-cum-Chairman, SADA filed its status report, wherein it is reiterated that no construction work had been

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carried out by the Society since the passing of the impugned judgment dated 13.12.2023 and the details of

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the construction as found on the site were as under:-

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*Sr.* *No.*	*Description* *of Block*	*Use* of *Block*	*Status* *of construction*	*Remar*	ks
1	Block No. 1	Residential	5 floors+1Parking floor with sloping roof existing at site.	The fin work ha been completed	iishing s not .
2	Block No. 2	Residential	5 floors+1Parking floor with sloping roof existing at site.	The in finishing has not completed	ternal i work been .
3	Block No. 3	Residential	5 floors+1Parking floor with sloping roof existing at site.	The in finishing has not completed	ternal i work been .
4	Block No. 4	Residential	5 floors+1Parking floor with sloping roof existing at site	The in finishing has not completed	ternal i work been .
5	Block No. 5	Residential	5 floors+1Parking floor with sloping roof existing at site.	The in finishing has not completed	ternal i work been .
6	Temple/ Community Block	Public-semi public	Not constructed	Only cutting been c out.	earth has arried
7	Shops	Commercial	Not constructed
8	Site Development work		Protection walls i.e. Rt/Breast wall have been constructed around block no. 1 to 5. The protection wall for the cutting made for constructing temple/community block has not been constructed so far except part Rt/wall towards block no. 4. The access road

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on the RCC framed structure has been constructed upto block no. 5. The work of construction of rain water harvesting tanks have been partially carried out.

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Along with the report, the photographs have also

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been appended, which are in tune and support the report and indicate that major portion of the construction as on date of the decision of the learned Writ Court had been completed and what remained was the finishing work and internal finishing work.

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From the sequence of events as narrated above, it is clearly established that at the time when the petitioner sought to agitate the matter, he had only a stale claim. It is more than settled that the issue of limitation, delay and laches has to be considered with reference to the original cause of action and not with reference from to the date on which the order is passed by an authority.

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The writ petitioner is clearly guilty since he had acquiescence and permitted the construction to be raised by the Society. It is only after the Society had spent substantial amount/money over the construction that the petitioner approached this Court. The petitioner was clearly

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a fence-sitter who waited for the outcome of the original application that was filed by his brother Shri Dalip Singh Atri, but independently he did not choose to agitate the matter. If the petitioner would have been vigilant enough, he could have filed an original application before the learned NGT or a writ petition before this Court at the initial stage of the construction. The petitioner lost time and whiled it away and did not rise to the occasion in time for filing the writ petition. The petitioner clearly acquiesced in the construction and thus waived off his right to file the writ petition and no relief could have been granted to him, which would prejudicially affect the rights of the Society. In such circumstances, there is no question why the Court should have come to the rescue of such person when he himself is guilty of acquiescence and waiver.

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It is more than settled that there has to be an element of repose and a stale claim, more particularly, to one related to construction by an adjoining owner when the same has reached at an advance stage cannot be resuscitated.

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It is beyond any cavil or doubt that the remedy under Article 226 of the Constitution of India is discretionary one. For sufficient or cogent reasons, the court may, in a given case, refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioners, the court must also consider the effect thereof.

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Normally, delay itself may not defeat the party's claim or relief unless the position of the opposite party has been irretrievably altered or would be put to undue hardship. Delay is not an absolute impediment to exercise judicial discretion and rendering of substantial justice and such matters lie in the exclusive discretion of the Court, which discretion obviously has to be exercised fairly and justly. The underlying principle behind dismissal of petition on the ground of delay and laches is to discourage agitation of stale claim and has to be construed from the perspective of the opposite party being prejudiced especially when the delay effects others' ripened rights. Each case will have to be decided on its own facts and merits. There may be cases where the demand of justice is so compelling that the Court would be inclined to interfere in spite of delay. Ultimately,

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as observed above, it would be a matter within the discretion of the Court.

¶147

Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime.

¶148

It is settled law that fence-sitters cannot be allowed to raise the dispute. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum.

¶149

It is well settled that writ will not be granted in case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.

¶150

¶151

It is more than settled that delay may be a bar to the granting of an injunction or a Writ of Certiorari even if it does not amount to proof of acquiescence.

¶152

In Lindsay Petroleum Co. vs. Hurd, L.R.5 PC, 239, the Hon’ble Privy Council was dealing with a case where during the construction of the building the plaintiff kept warning the defendant not to cause an obstruction, but did not bring his suit for an injunction to compel the demolition of the building until about a year after the completion of the defendant’s building. The Hon’ble Privy Council observed as under:

¶153

“Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted; in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the

¶154

¶155

validity of that defence must be tried upon principles substantially equitable.”

¶156

The aforesaid principle has repeatedly been approved by the Hon’ble Supreme Court and reference in this regard can conveniently be made to a very recent judgment of the Hon’ble Supreme Court in Mrinmoy Maity vs. Chhanda Koley and others, 2024 (5) Scale 209, therein the facts were that an advertisement came to be issued on 09.09.2012 calling upon application for distributors to grant LPG distributorship under GP category. From amongst the applications so received, the application submitted by the appellant as well as respondent No. 1 were found in order. A draw of lot was held amongst six candidates on 11.05.2013 and the appellant was found successful candidate and selected for verification of the documents. A letter of intent was issued to the appellant on 24.04.2014 and on 03.06.2014, the approval was granted by the BPCL in favour of the appellant for starting LPG distributorship at the notified place.

¶157

It was after 4 years that the respondent therein filed a complaint with the BPCL questioning the land offered

¶158

¶159

by the appellant. It was in the year, 2017, precisely on 10.04.2017 that the respondent filed the writ petition.

¶160

Dealing with the question of delay, the Hon’ble Supreme Court held as under:-

¶161

“9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

¶162

10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such

¶163

¶164

circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

¶165

11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in

¶166

¶167

approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others., (2009) 1 SCC 768 has held to the following effect:

¶168

“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

¶169

57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261] , Moon Mills Ltd. v. Industrial Court [AIR

¶170

¶171

1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84] ).

¶172

58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.”

¶173

12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. and another v. K. Thangappan and another, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

¶174

“6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its

¶175

¶176

extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.

¶177

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:

¶178

“Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time

¶179

¶180

and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.”

¶181

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

¶182

¶183

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

¶184

13. Reiterating the aspect of delay and laches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.T. Murali Babu, (2014) 4 SCC 108 has held:

¶185

¶186

“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

¶187

14. Having regard to the afore-stated principles of law enunciated herein above, when we turn our attention to facts on hand, it would not detain us for too long for accepting the plea of the appellant in affirming the order of the Learned Single Judge and dismissing the writ petition on the ground of delay

¶188

¶189

and laches. We say so for reasons more than one, firstly, it requires to be noticed that the writ petitioner was a rival applicant along with the appellant herein for grant of LPG distributorship and she along with the appellant herein, were found to be eligible and the appellant herein was held to be successful by virtue of draw of lots. This factual aspect would reflect that the writ petitioner was aware of all the developments including that of the allotment of distributorship having been made in favour of the appellant herein way back in 2014, yet did not challenge and only on acceptance of the alternate land offered by the appellant in March, 2017 and permitting him to construct the godown and the showroom. Same was challenged in the year 2017 and thereby the writ petitioner had allowed his right if at all if any to be drifted away or in other words acquiesced in the acts of the Corporation and as such on this short ground itself the appellant has to succeed. Secondly, another fact which has swayed in our mind to accept the plea of the appellant herein is that, undisputedly the appropriate government had felt the need of permitting the Oil Marketing Companies to be more flexible and as such modification to the guidelines had been brought about on 15.04.2015 whereby the applicants were permitted to offer alternate land where the land initially offered by them was found deficient or not suitable or change of the land, subject to specifications as laid down in the advertisement being met. There being no stiff opposition or strong

¶190

¶191

resistance to the alternate land offered by the appellant herein not being as per the specifications indicated in the advertisement, we see no reason to substitute the court’s view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL whereunder it has been stated:

¶192

“13. On the basis of xxxxxxxxxxxxxxxxxxxxx to non- agricultural. In his application form the said Respondent no. 9 had provided the Land for godown at Plot No 3732, Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera, Jamalpur, Distt Burdwan admeasuring 33 decimal. The same was cleared based on Registered Lease Deed, which was found to have been genuine in all respects as confirmed by the ADSR Jamalpur.

¶193

16. The land offered by the successful candidate, namely the Respondent no.9 was found to be eligible by relying on the abovementioned clauses, which determine eligibility of the land based on the status of ownership. The fact that the said land was a "Barga" land is not a material condition on the basis of which the Respondent no. 9's candidature could be cancelled.

¶194

24. Subsequently, FVC of the said newly offered land by the LOI holder, Respondent no. 9 was conducted and the same was found suitable for construction of LPG Godown. A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017 was

¶195

¶196

provided to the said LOI holder informing him that the alternate land provided is found suitable and therefore his request to construct LPG Godown in the said alternate land has been approved. A copy of the said letter dated 21.03.2017 is annexed hereto and is marked as "R-5".

¶197

25. It is therefore submitted that the steps taken by the Respondent no. 3 in allowing the LOI holder, Respondent no. 9, to provide alternate land for construction of godown, have been in consonance. with the change in policies and no favoritism or nepotism, as suggested by the petitioner has been in play.

¶198

32. It is further clarified that the FVC conducted on the original land offered by the Respondent no. 9 was found to be satisfactory on all counts, and only on the basis of this, his request for provision of alternate land wall accepted.”

¶199

The ratio laid down in the aforesaid decision squarely applies to the facts of the instant case where there has been delay in filing of the writ petition by the writ petitioner which has put the respondent-Society in a situation in which it would be unreasonable, inequitable and unjust to put it back to its original position prior to the grant of relaxation/permission granted by the State Government. Hence, it will be wholly unjust and inequitable now to

¶200

¶201

interfere in the matter. Even assuming that the writ petitioner had a good case on merit, it would now be inequitable and unjust to interfere at this belated stage and for this delay the writ petitioner is entirely to blame.

¶202

As already stated above, the principle of laches applies to writ petition. Laches differ from limitation. In limitation time, limit is hard and fast, whereas this is not so in laches. Laches simply mean unreasonable delay as to what is reasonable or unreasonable would depend on the facts and circumstances of each case. In one case, even one month delay can be regarded as unreasonable, whereas in another case, even one year delay may not be regarded as unreasonable. The Court is required to see the facts and circumstances of the each case in order to determine whether there is undue delay.

¶203

It is well settled that if there is undue delay on the part of the petitioner in filing the writ petition, he would not be entitled to discretionary relief under Article 226 of the Constitution of India.

¶204

In State of Maharashtra vs. Digamber, AIR 1995 SC 1991 (para-12) , the Hon’ble Supreme Court

¶205

¶206

observed that it is well settled by the decision of the Court that no person is entitled to obtain equitable relief under Article 226 of the Constitution of India, if his conduct is blameworthy because of latches, undue delay, acquiescence, waiver and the like.

¶207

Similarly, in Municipal Council, Ahmednagar

¶208

vs. Shash Hydar Beg, AIR 2000 SC 671 (Paras 17 and

¶209

18) , it was held by the Hon’ble Supreme Court that where there is an inordinate delay in filing of writ petition, the High Court in its discretionary power under Article 226 of the Constitution of India can dismiss it on this ground without going into the merit.

¶210

Going by the facts of the present case as pleaded by the petitioner himself wherein he claimed to be the owner of the adjoining land, obviously the construction carried out by the Society was very much in his knowledge and being fully aware of the same he remained conspicuously silent up till November, 2018, when for the first time he sent a notice to the official respondents. Even thereafter he remained mum for another year and approached this Court by filing writ petition only on 23.12.2019, thereby the writ petitioner had allowed his right if at all if any to be drifted

¶211

¶212

away or in other words acquiesced in the acts of the Society and as such on this short ground itself the appellants have to succeed.

¶213

Therefore, in the peculiar circumstances, given the fact that the petitioner is none other than the brother of Dalip Singh Atri, who had earlier approached the Ld. NGT by filing Original Application and further going by the fact that the petitioner by his conduct has only acquiesced to the construction raised by the Society and further on account of negligence is not entitled to maintain the instant petition. Furthermore, the petition is not maintainable on account of delay and laches on the part of the petitioner in approaching this Court. The writ petition is otherwise not bonafide as it is only a cover-up petition.

¶214

(ii) certain internal correspondences between the departments were also relied upon to hold that the State Government had taken the decision of granting relaxation to the Society, which was not only without jurisdiction but also arrived at in a most casual manner.

¶215

A perusal of the judgment rendered by the learned Writ Court would go to show that it had relied upon certain internal correspondences of respondent No. 5

¶216

¶217

Deputy Commissioner-cum-Chairman, SADA and noting portion of the files. However, we are of the considered view that the internal noting of the department unless communicated either to the writ petitioner or the Society could not form the basis or part of basis of the decision of the learned Writ Court and as such could not have been relied upon.

¶218

It is more than settled that notings which exist in the record of the official respondents cannot also be relied upon and made basis for assailing action of an authority. The internal notings are opinion of the office concerned for internal use and are not meant for outside exposure. Reliance in this regard can conveniently be placed on judgments of the Hon’ble Supreme Court in Vivek Batra vs. Union of India,

¶219

(2017) 1 SCC 69 and Sethi Auto Service Station vs. Delhi Development Authority, (2009) 1 SCC 180 .

¶220

The internal notings are not a decision and do not confer any right till such time decision taken on file is translated into an order and duly communicated to a party. Mere internal notings and approval cannot form basis for claiming a right. In taking this view we are duly supported by recent judgment of the Hon’ble Supreme Court in Delhi

¶221

¶222

Development Authority vs. Hello Home Education

¶223

Society, (2024) 3 SCC 148 , wherein it was observed as under:-

¶224

19.7 The issue relating to internal notings as to whether it would confer any right or not has been adequately dealt with and settled by series of judgments of this Court. It is well settled that until and unless the decision taken on file is converted into a final order to be communicated and duly served on the concerned party, no right accrues to the said party. Mere notings and in-principle approvals do not confer a vested right.

¶225

Relevant extracts from judgments of this Court in this regard are being reproduced hereunder:

¶226

a) Bhachhittar Singh (supra):

¶227

“9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file…..

¶228

[Emphasis supplied]

¶229

¶230

10. ……Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.”

¶231

[Emphasis supplied]

¶232

b) Sethi Auto Service Station (supra)

¶233

“14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.” [Emphasis supplied]

¶234

“22. From the afore-extracted notings of the Commissioner and the order of the Vice Chairman, it is manifest that although there were several notings

¶235

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which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technical Committee, the entire matter was kept pending; in the meanwhile, a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice Chairman, the final decision making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of State Level Co-ordinator (oil industry) and the Technical Committee but these did not ultimately fructify into an order or decision of the DDA, conferring any legal rights upon the appellants. Mere favourable recommendations at some level of the decision making process, in our view, are of no consequence and shall not bind the DDA. We are, therefore, in complete agreement with the High Court that the notings in the file did not confer any right upon the appellants, as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench, warranting interference.”

¶237

[Emphasis supplied]

¶238

c) Mahadeo (supra),

¶239

“14. It is well settled that inter- departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. This Court examined the

¶240

¶241

said question in a judgment reported as Omkar Sinha v. Sahadat Khan. Reliance was placed on Bachhittar Singh v. State of Punjab to hold that merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and second, it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file.” [Emphasis supplied]

¶242

(iii) It was held that the State Government has not vested with any authority for granting planning permission or to relax the prescribed norms.

¶243

and

¶244

(iv) Holding that the Society could not derive any benefit of Clause 10.4.1.2 (x) (viii) of the Interim Development Plan.

¶245

As regards the findings that the State

¶246

Government had not vested with any authority under the statute, we find such findings to be totally perverse and not sustainable. Under every statute framed by the State Government, it is only the State Government which at the first place is vested with all the authority under the statute

¶247

¶248

and it is for the State in its wisdom to delegate its power to some of its officer(s) to discharge those authorities on its behalf that have been conferred under the Act.

¶249

Apart from the above, it would be noticed that as regards the instant case, the State Government has been vested with the entire supervision control and power to give directions as is evident from Chapter-IX of the TCP Act, 1977.

¶250

It is apt to reproduce Chapter-IX in its entirety containing Sections 74 to 78, which read as under:-

¶251

“74. Power of State Government of supervision and control.- The State Government shall have power of superintendence and control over the acts and proceedings of the officers appointed under section 3 and the authority constituted under this Act.

¶252

75. Power of State Government to give directions.- (1) In the discharge of their duties the officers appointed under section 3 and the authority constituted under this Act shall be bound by such directions on matters of policy as may be given to them by the State Government.

¶253

(2) If any dispute arises between the State Government and any authority as to whether a question is or is not a question of policy, the decision of the State Government shall be final.

¶254

¶255

76. Power of Government to review plans etc. for ensuring conformity.- Notwithstanding anything contained in any other enactment for the time being in force, the State Government may, with a view to ascertaining that no repugnancy exists or arises with the provisions of this Act or the rules made thereunder, review the town improvement schemes, building plans or any permission for construction sanctioned or given by any authority under development plans, sanctioned under any enactment for the time being in force and may revoke, vary, or modify any scheme, plan, permission or sanction in conformity with the provisions of this Act:

¶256

Provided that no order under this section shall be made without giving a reasonable opportunity of being heard to the persons affected thereby.

¶257

77. Delegation of powers.- 1{(1) The State Government may, by order notified in the Official Gazette, direct that any power either exercisable by it or by the Director, under this Act (not being the power to make rules) may also be exercised, in such cases and subject to such conditions, if any, as may be specified in such order, by its such officer 2[, registered private professional] or authority or the officer of the authority as may be specified therein:}

¶258

[Provided that in case the powers are delegated to Municipal Corporation, Municipal Council or Nagar Panchayat 4[or the Panchayati Raj Institutions], the Government may, by notification, permit such

¶259

¶260

authorities to utilise the fee collected under the provisions of Himachal Pradesh Town and Country Planning Rules, 1978, toward their local fund.]

¶261

(2) Subject to such restrictions as may be imposed by the State Government by a general or special order, the Director, may, by an order in writing, delegate to any officer subordinate to him all or any powers exercisable by him under this Act or the rules made thereunder, other than the power to hear appeal and revision.

¶262

78. Dissolution of authorities.- (1) Whenever in the opinion of the State Government the continued existence of any authority constituted under this Act is un-necessary or undesirable, the State Government may, by notification, declare that such authority shall be dissolved from such date as may be specified therein and the authority shall stand dissolved accordingly.

¶263

(2) As from the said date–

¶264

(a) all the properties, funds and dues which are vested in or realizable by the authority, shall vest in, or be realisable by, the State Government;

¶265

(b) all liabilities which are enforceable against the authority shall be enforceable against the State Government;

¶266

(c) for the purpose of realising properties, funds, and dues referred to in clause (a), the function of the

¶267

¶268

authority shall be discharged by the State Government;

¶269

(d) all powers and functions to be exercised or discharged by the authority under this Act shall be exercised and discharged by the Director and for that purpose any reference in this Act to the said authority shall be construed as a reference to the Director.”

¶270

Section 77 ibid clearly provides for delegation of powers which at the first instance is vested only with the State Government.

¶271

Moreover, as per Appendix-I (3) General Regulations Clause-28, relaxation in set backs and height of floor in case of private construction could be considered by the competent authority keeping in view the site condition and such relaxation could well be considered by the State itself.

¶272

Apart from the above, it is necessary to understand as to what is the extent of relaxation granted by the government. In order to appreciate the same, the comparative statement of relaxation is reproduced hereunder:-

¶273

¶274

Table

¶275

Comparative Sta tement of Relaxation

¶276

Sr. No.	Particulars	As per Appendix-7 of the H.P. Town and Country Planning Rules, 2014 (Amended upto 2016)	As proposed	Relaxations
1	Land Use	Original Use (Un- defined)	Residential use (Flatted Colony	Change of Land Use from Original Use (Un- defined) to Residential Use is allowed
2	Area under Apartments	30-35%	45.86%	Relaxation of 10.86% is granted
3	Public and Semi- Public	06-10%	03.67%	Relaxation of 2.33% granted
4	FAR	1.75	2.36 (6771.48 m²	Relaxation of 0.61 is granted
5	Built up area	4471.25m²	5859.50 m²	Relaxation of 1388.25m²is granted
6	Set backs Right Side Left side	(1/3rd of building height) i.e. 6.85 m (1/3rd of building height) i.e. 6.85 m	3.20m (Average 5.63m (Average)	Relaxation of 3.65m is granted Relaxation of 1.22m is granted
7	Block to Block distance	6.00m	5.00m	Relaxation of 1.00m is granted

¶277

¶278

It would be noticed that the relaxation granted by the government is not such, which may strike at the judicial conscience of this Court.

¶279

In order to better appreciate this issue, the comparative status of the case as per the provisions of the Interim Development Plan for Shimla Planning Area needs to be understood and the same is reproduced hereinunder:-

¶280

Sr No	_Particulars _	As *per* *Appendix* -7	*As proposed*	*Remarks*	*Justification*
1	_Type of Area _	Non Core Area	_Non-Core Area _	The area falls in Special Area Soghi	--
2	Land Use	Original Use (Un- defined)	Residential use (Flatted Colony)	Change of Land Use from Original Use (Un-defined) to Residential Use	Area has already been developed as Residential
3	Scheme Area	2500.00m 2	2555.00m²	In Order	In order
4	Means of access	5.00m wide	5.00m wide vehicular road exist at site	In Order	In order
5	Slope of area	45⁰	Less than 45⁰	In order	In order
6	Area under Apartment	30-35%	45.86%	Relaxation of 10.86%	The proposal is for establishment of a flatted colony purely for residential purpose. In order to accommodate all the members of

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					the society in the colony, the percentage is on the higher side.
7	Commercial	02-03%	02.59%	In order	--
8	Public and Semi-Public	06-10%	03.67%	Relaxation of 2.33%	As Senior Secondary School and Dispensary are located in a stone throw distance, therefore, the percentage is on lesser side.
9	Traffic and Transportati on	10-15%	24.65%	In order	In order to have access to each Block, roads and parking floors have been proposed, as such, the percentage is on higher side and need not any relaxation.
_10 _	Parks and Open Spaces	10-15%	11.08%	In order	--
_11 _	Area under setbacks, pavement, plantation & landscaping etc.	Balance	12.15%	In order	--
_12 _	FAR	1.75 sqn	2.36 (6771.48m²)	Relaxation of 0.61 is involved	The proposal is for establishment of a flatted colony purely for residential

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					purpose. In order to accommodate all the member of the society in the colony, the relaxation in FAR is required.
_13 _	_Built up area _	4471.25 m² (2555x1.7 5=4471.2 5)	5859.50m²	Relaxation of 1388.25 m² is involved.	-do-
_14 _	No. of Storeys and height of building	Storeys based on FAR subject to total height restriction of building upto 25m	5 storeys+one parking floor in each 5 Blocks with total height 20.55m.	In order	--
_15 _	Height of each floor	3.00m to 3.50m	3.1.m	In order	--
16	*Set backs* Front side Right side Left side Rear side	3.00mtr (1/3rd of building height) i.e. 6.85m (1/3rd of building height) i.e. 6.85m (1/3rd of building height) i.e. 6.85m	3.00m to 5.00m 3.20m (Average) 5.63m (Average) 10.00m	In order Relaxation of 3.65m is involved Relaxation of 1.22m is involved In order	As the size of plot is irregular, therefore, relaxation in Right and Left side setbacks are required.

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_17 _	Rain Water Harvesting Tank	Mandatory	Shown on the drawing	In order	--
_18 _	Block to Block distance	6.00m	5.00m	Relaxation of 1.00m is involved	As the size of plot is irregular, therefore, relaxations in Block to Block distance are required.
_19 _	Solar Passive Design	Mandatory	Shown on the drawing	In order	--
_20 _	NOC of the competent authority of H.P. Forest Department.	Required	_Not submitted _	Will be obtained at the time of according final approval	--
_21 _	NOC of the competent authority of HP I&PH Department or consent of Central Ground Water Authority regarding use of ground floor.	Required	_Not submitted _	do	--
_22 _	NOC of the competent authority of H.P. Fire Service Department	Required	_Not submitted _	-do-	--
_23 _	NOC of the competent authority of Panchayats.	Required	_Not submitted _	-do-	--
_24 _	_Arrangemen _	Required	Shown on the	Presently two	There is

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t for disposal	drawing	septic tanks have option for
and		been proposed. laying a
treatment of		On functioning of separate
solid waste,		the Colony, a sewerage line
sullage,		Sewerage upto existing
sewage,		Treatment Plan STP in village
sewerage		(STP) will be Baragaon.
and storm		constructed by
water		the applicant _society. _

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It would be evident from the aforesaid comparative statement that even though there has been some relaxation with regard to the FAR, but then the height of the building has not increased, as a matter of fact the Society was legally permitted to raise construction upto 25m but it has raised construction only up to the height of only 20.55m.

¶290

Moreover, the Interim Development Plan was subsequently amended vide Notifications dated 13.08.2015 and 28.06.2016. By these amendments, Chapter 10 of the Interim Development Plan for the Shimla Planning Area, para 10.4 had been substituted wherein restriction of number of storeys had been removed and number of floors were regulated by specifying height of the building and the floor area ratio rather than specifying the number of floors and, therefore, the Notification dated 22.08.2002 was neither attracted nor applicable to instant case.

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This Court cannot ordinarily interfere in administrative matter since the administrative authority is specialised in matter relating to the administration. This Court does not have the expertise in such matters and ordinarily should leave such matters to the discretion of the administrative authorities. It is only in rare and exceptional cases where the Wednesbury principle applies, that the Court should interfere.

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The Court cannot sit as a court of appeal over the decisions taken by the State Government but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise, which itself may be fallible.

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86. As Lord Denning observed:

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“This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The courts should be very wary about interfering and only

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interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the courts and the government and the authorities, which would be most undesirable. The courts must act very warily in this matter. (See Judging the World by Garry Sturgess Philip Chubb) .”

¶298

The mere fact that some of the members of the Society happen to be the employees of Civil Secretariat that too belonging to the lower echelons of service could not have influenced the decision making at the level of the government, especially, when the matter had been taken and approved by the Council of Ministers.

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There are only three grounds on which the administrative action is subject to control by judicial review. The first ground is illegality, the second is irrationality and the third is procedural impropriety. This Court will be slow to interfere in matters relating to administrative functions unless the decision is tainted by any vulnerability enumerated above, like illegality, irrationality and procedural impropriety commonly known as the Wednesbury principles , which is otherwise not the fact situation obtaining in the instant case.

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In view of the aforesaid discussion and for the reasons stated above, we find merit in these appeals and the same are allowed and the judgment passed by the learned Single Judge in CWP No. 4389 of 2019 is set aside and the writ petition filed by the writ petitioner is ordered to be dismissed.

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The parties are left to bear their own costs.

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All pending applications shall also stand disposed

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of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja) _10th July, 2024. Judge ( sanjeev)

Aditya Vihar Employees Housing Society Ltd. v. State of Hp

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Aditya Vihar Employees Housing Society Ltd. v. State of Hp

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