Raj Kumar Sood vs Municipal Corporation
2023 Latest Caselaw 12640 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO No. 488 of 2022.

Reserved on : 18th August, 2023.

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                                              Decided on :             31st August, 2023.


    Raj Kumar Sood                                                          ...Petitioner.





                                         Versus

    Municipal Corporation, Shimla                                           ....Respondent.

    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 No.

For the Petitioner: Mr. J.L. Bhardwaj, Senior Advocate, with Mr. Sanjay Bhardwaj, Advocate.

For the Respondent: Mr. Mukul Sood, Advocate.

Satyen Vaidya, Judge.

The checkered history of the case can be noticed as under:

(i) Allegation against the petitioner is that he

has raised construction of a building within

the municipal area of Shimla by exceeding

the permission accorded in his favour. It is

alleged that the map submitted by the

petitioner for construction of house was

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

...2...

sanctioned on 02.06.1996 for three storeyed

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structure with roof. Petitioner raised fourth

storey unauthorisedly which became the

reason for initiation of proceedings under

Section 253 of the Himachal Pradesh

Municipal Corporation Act, 1994 (for short

(ii) "the Act").

The demolition order was passed by the

Commissioner, Municipal Corporation,

Shimla in respect of the unauthorised

construction of petitioner on two occasions

and both the times appeal was preferred by

the petitioner before the Appellate Authority

under the Act. The demolition orders were

set aside and the case was remanded to the

Commissioner both the times.

(iii) Lastly, Commissioner again passed the

demolition order on 15.11.2019. Petitioner

instead of filing an appeal under Section

253(2) of the Act, preferred a review petition

under Section 402-A of the Act before the

...3...

Commissioner. The review petition was

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dismissed on 08.01.2021.

(iv) Thereafter, the petitioner again approached

the Appellate Authority, i.e. the learned

District Judge, Shimla, by filing an appeal

under Section 253(2) of the Act. Learned

District Judge, Shimla dismissed the appeal

as not maintainable.

(v) The order of learned District Judge was

of 2022. Vide order dated 02.05.2022,

passed in CMPMO No. 92 of 2022, the order

dated 26.02.2022 of learned District Judge

was set aside. The matter was remitted to

learned District Judge to decide the same

afresh.

(vi) The order impugned in the present petition

has been passed by learned Additional

District Judge (CBI Court) Shimla in

compliance to the orders passed by this

Court in CMPMO No. 92 of 2022. The appeal

...4...

of the petitioner has been dismissed and

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order of demolition dated 15.11.2019 passed

by the Commissioner has been affirmed.

2. I have heard learned counsel for the parties and

have also carefully perused the entire material on record

carefully.

3.

the ground to The petitioner has assailed the impugned order on

that the Commissioner, r while passing the

demolition order, had clearly erred on facts and law. The order

of the Commissioner suffered from grave illegality for no

discussion had preceded the finding for holding the

construction of petitioner to be in excess of permissible 'Floor

Area Ratio' (FAR) prescribed under the Interim Development

Plan (IDP) for Shimla planning area or any other rule or bye

law of the Municipal Corporation Shimla.

4. Mr. J. L. Bhardwaj, learned senior counsel for the

petitioner has challenged the impugned order passed by

learned Additional District Judge (CBI Court), Shimla to be

suffering from the same vice. As per him, the Appellate

Authority has also fallen into same error and has rendered the

...5...

findings regarding unauthorised construction raised by the

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petitioner without any material in support.

5. On the other hand, Mr. Mukul Sood, Advocate, for

the Municipal Corporation, Shimla has supported the

impugned order as also the order of the Commissioner on the

grounds that the petitioner has consumed the floor area ratio

available for him while raising three storeys and his fourth

storey is totally unauthorised. He has further contended that

the petitioner cannot avail the benefit of the provisions of

deemed sanction of his plan as only such plan can be deemed

to have been sanctioned by the inaction of the corporation

which otherwise is in strict adherence to the prevalent

building regulations.

6. The demolition order dated 15.11.2019 of the

Commissioner and the impugned order reveal that the

petitioner has been non suited only on the ground that he had

consumed the entire 'FAR' while raising the construction of

three storeys and as such his revised plan for fourth storey

cannot be deemed to have been sanctioned being against the

building regulations. The learned Appellate Authority has

affirmed the order of the Commissioner. The only difference is

...6...

that the Commissioner has dealt with the issue in an inexplicit

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manner, whereas learned Appellate Authority has made some

elaboration regarding the applicability of FAR to the case of

petitioner and the FAR already consumed by him. Learned

Appellate authority had observed that FAR of 1.75 was

permissible in the case of petitioner as his plot area was

126.64 sq. meters.

As per permissible FAR the petitioner

could raise construction on 221.62 sq. meters and since he

had already consumed the constructed area of 222.38 square

meters while raising three storeys, his revised plan for further

construction was untenable.

7. Noticeably, neither the Commissioner nor the

Appellate Authority has made reference to any specific

provision of the IDP for Shimla planning area or the building

bye laws of Municipal Corporation, Shimla, which provides for

FAR 1.75 for a plot area of 126.64 square meters.

Indisputably, the construction raised by the petitioner is on a

'detached plot', which means that it is an independent plot

and the construction raised by the petitioner has no common

wall with the property of others on either side.

...7...

8. During the hearing of the case also the learned

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counsel for the respondent had not been able to pin point any

particular provision in the IDP or any other building

regulations which provides FAR of 1.75 for residential plot

area of 126.64 sq. meters, rather the documents placed on

the file at pages 126 and 127 of the paper book show the

above 150 sq. meters.

r to provisioning of FAR for detached house having plot area

For plots having lesser area, FAR has

been prescribed for semi-detached house having common

wall on one side and row houses with common wall on two

sides. In my considered view, the building of the petitioner

does not fall in any of above categories because it is a

building on a plot area of less than 150 square meters and

still is a detached house.

9. It is more than settled that the finding returned by

a judicial authority on issue under adjudication before it must

have support of reasons and supporting material/evidence.

That being so, in the case in hand, the findings returned by

the Appellate Authority as also the Commissioner holding

applicability of FAR of 1.75 in the case of petitioner cannot be

countenanced being not supported by any material/evidence.

...8...

None of the orders reveal that which of the provision(s) of law

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prohibits the owner of a detached house on plot area of less

than 150 square meters to confine the limits of his

construction to FAR of 1.75 .

10. In such view of the matter, the impugned order

cannot be sustained and is accordingly set aside. The matter

is remitted back to the Appellate Authority to decide the

matter afresh in view of the observations made hereinabove.

The parties are directed to appear before the learned

Additional District Judge (CBI Court), Shimla on 20.9.2023.

11. The petition as also pending miscellaneous

application(s), if any, also stand disposed of.

(Satyen Vaidya) Judge 31st August, 2023.

(jai)