Himachal Pradesh High Court
Through Its Commissioner vs Municipal Corporation on 17 October, 2022
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL No. 201 OF 2022
Between:-
MUNICIPAL CORPORATION SHIMLA
THROUGH ITS COMMISSIONER..
..........APPELLANT
(BY MR. NARESH KUMAR GUPTA,
ADVOCATE)
AND
1. BHAG CHAND SHARMA SON
LATE SH. LACHI RAM SHARMA
RESIDENTOF NARAYAN
BHAWAN, KANLOG SHIMLA, H.P.
..........Respondent/defendant No.1
2. RAJEEV SHARMA, EX
ARCHITECT PLANNER,
MUNICIPAL CORPORATION
SHIMLA PRESENTLY POSTED AS
ARCHITECT IN THE OFFICE OF
P.W.D. NIGAM VIHAR SHIMLA,
H.P.
......PROFORMA RESPONDENT
{MR. BHAG CHAND SHAMRA (RESPONDENT
No.1) PERSENT IN PERSON).
___________________________________________________________
Whether approved for reporting: No
This appeal coming on for ORDERS this day, Hon'ble Mr.
Ajay Mohan Goel, delivered the following:-
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2
JUDGEMENT
By way of this appeal, the appellant challenges the judgment
.
and decree passed by the Court of learned Civil Judge, Court No.5,
Shimla, in Civil Suit No.136-1 of 2013, titled as Bhag Chand Sharma vs.
Municipal Corporation, Shimla and another dated 01.12.2021, in terms
whereof, the suit for declaration and injunction filed by respondent No.1
was decreed as well as the judgment and decree passed by the Court of
learned Additional District Judge-II, Shimla H.P. passed in Civil Appeal
No.1-S/13 of 2022, titled as the Municipal Corporation, Shimla vs. Sh.
Bhag Chand Sharma and another, dated 19.04.2022. in terms whereof,
the appeal preferred by the Municipal Corporation against the judgment
and decree passed by the learned Trial Court was dismissed.
2. Brief facts necessary for the adjudication of the present
appeal are as under:-
Respondent/plaintiff (hereinafter to be referred as the plaintiff)
filed a suit for declaration to the effect that he was owner in possession of
the land comprised in Khasra No.1038/494 and 1046/496, measuring
167.20 square meters, situated in Mauza Kanlog, Tehsil and District
Shimla, H.P. The plaintiff had constructed a house upon the same.
Completion of three storey i.e. ground floor measuring 69.85 square
metres, first floor 76.44 square meters and second floor measuring 76.44
square meters was approved in favour of the plaintiff by defendant-
Corporation vide order No.132 AP dated 12.06.1997. Later on, plaintiff
came to know that as per floor area ratio upon a plot measuring 167.20
square metres, permissible built up area could be up to 292.60 square
.
meters whereas he had covered only 222.73 square metres. Therefore, in
these circumstances, he submitted a revised plan to the Municipal
Corporation for sanction, which was duly sanctioned by the Commissioner
vide order No.337 AP dated 02.12.2005, in terms whereof, the plaintiff
was conveyed the sanction of 66.55 square meters of the third floor.
Plaintiff raised construction of the third floor by covering only 62.12 square
metres against sanctioned area of 66.55 square metres. Thereafter, he
submitted the completion plan to the corporation on 05.12.2006 vide Diary
No.395/COM/06. However, the plaintiff did not receive any sanction order
or objections to the said completion plan which he had submitted with the
respondent-Corporation. According to the plaintiff, the non-conveying of
the sanction plan to the plaintiff was on account of a malafide intent to
harass him for extraneous considerations. As per him, the construction
which stood raised by him, was strictly in consonance with the sanction
accorded by the Municipal Corporation. Despite his approaching the
concerned officials of the respondent-Corporation of the defendant-
Corporation on various occasions, nothing fruitful was done and every
time, he was told that the case of the plaintiff was under consideration.
Faced with this situation, the plaintiff wrote a letter to defendant No.1 on
26.02.2008 by way of UPC which was not replied. This was followed by
another letter dated 30.04.2012, in terms whereof, the plaintiff requested
defendant No.1 for issuance of No Objection Certificate for restoration of
the Electricity Metre so that he could put the accommodation in use as
.
there was a deemed sanction of the plan, as envisaged under Section 247
(1) of the H.P. Municipal Corporation Act, 1994. In response thereto,
defendant issued a letter dated 02.06.2012 under the signatures of
defendant No.2, which as per the plaintiff, was issued without verifying
any record and it was mentioned therein that the plan of the third floor of
the building of the plaintiff was never approved, and in fact, the same
already stood returned to the plaintiff vide letter dated 27.01.2007, and
thereafter, the plan was never re-submitted by the plaintiff to the
Corporation. According to the plaintiff, he had never received the plan
back from the defendant-Corporation after he had submitted the same for
the purpose of grant of completion certificate and the letter was issued by
the Corporation again with ulterior motive to harass and coerce the
plaintiff, and thus, to cause loss to him. According to the plaintiff, the
malice in the conduct of the defendant was on account of the two civil
suits having been instituted by the plaintiff against his neighbours, in
which, he had alleged the non-leaving of set back by the said neighbours
in the course of construction of their respective houses and also on
account of some other complaints having been preferred by the plaintiff
against the respondent-Corporation, in which, the District Consumer
Forum, Shimla, had awarded compensation of Rs.25,000/- in favour of
the plaintiff against the defendant. In this background, the plaintiff after
issuing a legal notice to the defendant dated 22.09.2012 instituted the
suit, in which, prayer was made that the Court may issue declaration to
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the effect that the revised completion plan of the house of the plaintiff
which was submitted by him to defendant No.1 on 05.12.2006 was never
conveyed back to him by Corporation. Plaintiff also prayed for declaration
that as the revised completion plan of the house of the plaintiff which was
submitted by him to defendant No.1 on 05.12.2006 was neither rejected
nor otherwise conveyed to the plaintiff, therefore, there was deemed
sanction thereof in terms of the provisions of Section 247(1) of the
Himachal Pradesh Municipal Corporation Act, 1994. A decree for
mandatory injunction was also sought against defendant No.1 for the
issuance of 'No Objection Certificate' in respect of second and third floor
for the purpose of the installation of Electricity Metre.
3. The suit was resisted by the defendants intra alia on the
ground that the completion plan, which was submitted by the plaintiff on
05.12.2006, was returned back to the plaintiff by defendant No.1 vide
letter No.MCS/AP/1833/Mukhya/06-07-437 dated 27.01.2007. Defendants
denied that the plaintiff had not received back the completion plan as was
alleged by the plaintiff, and according to them, the same was sent back to
the plaintiff by post on 05.02.2007.
4. On the basis of the pleadings of the parties learned Trial
Court framed the following issues:-
1. Whether the plaintiff is entitled for the relief of
declaration that the revised completion plan of the house
.
of the plaintiff, submitted to defendant No.1 on 05.12.2006
was never conveyed to the plaintiff and is deemed to be
sanctioned under Section 247(1) of the Municipal
Corporation Act, and letter No. MCS/AP/1037/AP/12-3291,
dated 02.06.2012 signed by defendant No.2 is false,
illegal, wrong and not based on facts, as prayed for? OPP
2. If issue No.1 is proved in affirmative, whether the
plaintiff is entitled for the relief of mandatory injunction, as
prayed for? OPP
3. If issues No.1 and 2 are proved in affirmative,
whether the plaintiff is entitled for the relief of damages, as
prayed for? OPP.
4. Whether the suit of the plaintiff is not maintainable,
as alleged? OPD
5. Whether the suit is bad for non issuance of
mandatory notice under Section 392 of the HPMC Act,
1994, as alleged? OPD
6. Whether the plaintiff has not come to the
Court with clean hands, as alleged? OPD
7. Whether the suit has not been properly valued for
the purpose of Court fee and jurisdiction, as alleged? OPD.
8. Whether the suit is liable to be rejected under Order
7 Rule 11 CPC, as alleged? OPD
.
9. Relief.
5. On the basis of pleadings and evidence led by the parties in
support of their respective cases, the Issues so framed were answered by
the learned Trial Court as under:-
Issue No. 1: Yes.
Issue No. 2: Yes.
Issue No. 3:
r No.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: No.
Issue No. 7: No.
Issue No. 8: No.
Relief : Suit of the plaintiff is partly decreed as per
operative part of the judgment.
6. Leaned Trial Court thus decreed the suit of the plaintiff by
inter alia holding that whereas the plaintiff had duly demonstrated that he
had submitted the completion plan of the third floor vide Exhibit PW-1/7
and Exhibit PW-1/20 which was duly received by defendant No.1 on
05.12.2006, however, no evidence was placed on record by the defendant
to demonstrate that the completion plan so submitted by the plaintiff was
ever returned back to him as alleged by the defendants. Primarily, on this
count, the suit of the plaintiff was decreed by the learned Trial Court in the
following terms:-
"Accordingly, in view of the above discussion, the suit of
the plaintiff is partly decreed. The plaintiff is held entitled
.
for the relief of declaration that the revised completion plan
of the house of the plaintiff, submitted to defendant No. 1
on 05.12.2006 was never conveyed to the plaintiff and is
deemed to be sanctioned under Section 247(1) of the
Municipal Corporation Act, and letter No. MCS/AP/
1037/12-3291, dated 02.06.2012 signed by defendant No.
2 is false, illegal, wrong and not based on facts. The
plaintiff is held entitled for the relief of mandatory injunction
and the Defendant No. 1 is hereby directed to issue No
Objection Certificate in favour of the plaintiff for second
and third floors. Decree sheet be prepared accordingly. Let
this file complete in all respects be consigned to Record
Room."
7. In appeal, learned Appellate Court while upholding the
findings returned by the learned Trial Court, dismissed the appeal.
Learned Appellate Court held that the findings returned by the learned
Trial Court did not deserve to be interfered with on any count and further,
bare statement of the defendant' witnesses without any documentary
basis that the construction carried out by the plaintiff was against bye laws
etc. could not be accepted. Learned Appellate Court also held that
defendants had failed to communicate the rejection of the completion plan
to the plaintiff without any reasonable cause, and therefore, there was no
infirmity in the judgment and decree passed by the learned Trial Court.
.
8. Feeling aggrieved, defendant-respondent Corporation has
filed the present appeal.
9. I have heard learned Counsel for the appellant as also the
plaintiff, who has appeared in the Court in person and also argued the
case in person. The grievance with which the plaintiff approached the
learned Trial Court has been referred to by me in detail in the above part
of the judgment. There are concurrent findings returned by both the
learned Court below to the effect that defendant-Corporation failed to
prove that the rejection of the completion plan was duly conveyed to the
plaintiff. A perusal of the List of Exhibits demonstrates that, in fact, no
document was filed by the defendants before learned Trial Court in
support of their contention as was raised in the written statement. Thus,
as the defendant-Corporation failed to substantiate its bald contention so
raised in the written statement that the completion plan submitted by the
plaintiff was duly communicated to the plaintiff after its rejection, was not
substantiated by leading any cogent evidence to prove this fact, this Court
can safely say that the findings which have been returned by learned
Courts below to the effect that defendant-Corporation failed to
demonstrate or prove that the completion plan after rejection was duly
returned back to the plaintiff, are correct findings and are duly borne out
from the record of the case. This being the factual position as it emanates
from the record of the case, this Court does not finds any perversity with
the findings which have been returned by the leaned Court below while
.
decreeing the suit of the plaintiff.
Accordingly, in view of the above observations, as this Court
does not finds any substantial question of law involved in the present
appeal as the issues which have been decided by the learned Courts
below are simplicitor issues of fact, the present appeal being devoid of
merit, is dismissed with costs. Pending miscellaneous application(s), if
any, also stand disposed of accordingly.
r (Ajay Mohan Goel)
Judge
October 11, 2022
(narender)
