[REWORK NEEDED] Even after a plan is sanctioned, the authorities are not without power to require the owner of the land to comply with the provisions of the Act and Rules: Himachal Pradesh High Court

The Himachal Pradesh High Court recently observed that after a plan is sanctioned, the authorities are not without power to require the owner of the land to comply with the provisions of the Act and Rules.

The observation came from Justice Tarlok Singh Chauhan & Hon’ble Mr. Justice Virender Singh:

“We see no reasons to take a different view. We are otherwise of the considered view that it is neither safe nor prudent for the Court to encourage cases of so-called deemed sanction if it is contrary to the law only because of the inaction and lethargy of the official/officer, which in addition to the routine work could be for extraneous consideration. This Court otherwise cannot permit haphazard construction in Himachal Pradesh, more particularly, in Dharamshala which falls in seismic zone No.5 and is thus prone to severe earthquakes.”

Through the present petition, the petitioners were seeking direction that the respondents may very kindly be directed to act as per provisions of Section 31(5) of the Act and immediately and forthwith issue letter granting approval/sanction of site plan of 4-storey building as submitted as per deemed approval clause in favour of the petitioner.

It was stated by the respondents that the case file was thoroughly examined in the Office of the Corporation and the request of the petitioner for approval of commercial building of guest house was rejected on the ground that the condition of minimum plot area of 250 square meters required as per regulations of Development Plan Dharamshala, regulations at Sr. No.14.2.2(4) under tourism unit was not fulfilled. It is averred that the petitioner is the owner in possession of 247 square meters area only in land bearing Khasra No. 2009/1928 in Mohal Mecleodganj, Tehsil Dharamshala, District Kangra, as against the requirement of 250 square meters.

It is further averred that the plan submitted by the petitioner was re-examined after the petitioner again applied for approval after attending the observations made on 19.02.2020 and the same was again rejected on the ground that the condition of minimum area for the construction of guest house was not fulfilled by the petitioner.

The petitioner filed rejoinder wherein it has been averred that even if the plot area of the petitioner is 247 square meters as against the requirement of 250 square meters, even then there is provisions of deviation upto 10% of the plot area and thus deviation is permissible being only three square meters. Apart from the above, it has been emphatically stated that the objections as raised by the respondents are not tenable in law in view of the provisions contained as the plan submitted is deemed to be sanctioned as per Section 31(5) of the Act.

Court noted that indubitably, third respondent in this case has not communicated his decision whether to grant or refuse permission to the petitioner within two months from the receipt of his application dated 07.08.2018.What to talk of two months, the respondent-Corporation did not even act for over a year and, therefore, the permission is deemed to have been granted to the petitioner as it is a case of deemed sanction. However, that does not mean that the petitioner is at liberty to raise construction in a manner which he likes.

Court observed that even the officials/officers, who are entrusted with the work and paid out of the corpus of the Municipal Corporation and have been in a state of slumber, deserve to be punished and cannot be permitted to go scot-free.

“It needs to be reiterated that public offices, both big and small, are sacred trusts. Such offices are meant for use and not abuse and in case repositories of such offices surpass the rule, then the law is not that powerless.”

Court further observed that the State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by rules, regulations and instructions. Equally settled is the proposition that whenever a statutory authority is required to do a thing in a particular manner, then the same must be done in that manner and not at all.

In view of the above, the court directed Municipal Corporation, Dharamshala, to personally conduct an inquiry and fix responsibility of those of the officials/officers, whether serving or retired, who were responsible for not dealing with the application submitted by the petitioner for over a year as against period of two months.

“Now as regards the merits of the case, there will be a deemed approval to the plan submitted by the petitioner. However, the petitioner will have to comply with the provisions of the H.P. Town and Country Planning Act and Rules and other applicable statutes occupying the field and thereafter raise construction strictly in accordance with the same i.e. the deemed permission would enable the petitioner to raise construction only in accordance with the extant building regulations. The petitioner still needs to address the objections raised on the plan submitted by him.”