Kaushlya Devi vs State of H.P. and Others

Surjit Singh, J.

CMPM No. 883/2010

No reply is intended to be filed.

Heard. Allowed. Applicants are ordered to be substituted as Petitioners in place of deceased Petitioner Kaushlya Devi. Necessary correction be carried out in the memo. of parties. Application stands disposed of.

CMP No. 4280 of 2009

Heard. Amendment allowed. Amended petition submitted with the application is ordered to be treated as writ petition in the case. Application stands disposed of.

CWP No. 2280 of 2007

Petitioner, now deceased and represented by her L Rs, was joint owner with Respondent No. 7 Smt. Sonia Singh, of a piece of land bearing Khasra No. 1353/706, situate in Mouza Badai of Shimla Town. Respondent No. 7 is exclusive owner of land bearing Khasra No. 1524/1361/718/2/1. She applied to Municipal Corporation, Shimla, Respondent No. 5 herein, seeking permission to raise a building on her own aforesaid exclusive Khasra number and submitted a plan of the proposed construction. Municipal Corporation approved that plan.

According to the Petitioner, Respondent No. 7, in the garb of approved plan, has raised construction on joint property of the Petitioner and Respondent No. 7, bearing Khasra No. 1353/706. She has filed a suit in a Civil Court at Shimla, seeking issuance of mandatory injunction for demolition of structure raised by Respondent No. 7 on the aforesaid joint property. That suit is pending. Petitioner has filed the present writ petition, seeking issuance of a direction to Municipal Corporation, i.e. Respondent No. 5 to revoke the approval of revised-cum-completion plan accorded in favour of Respondent No. 7 for raising construction on Khasra No. 1524/1361/718/2/1.

Respondents have refuted the allegation. According to them, plan had been got approved before construction was raised and that after approval of that plan construction was raised and then revised-cum-completion plan was submitted, which has been approved on 10.1.2007. It has been denied that construction has been raised on joint property of the parties. Plea taken on behalf of Respondent No. 7 is that construction is on her own exclusive property, described by Khasra No. 1524/1361/718/2/1.

I have heard learned Counsel for the parties and gone through the record.

Unless it is clearly established that the construction has, in fact, been raised on joint property of the parties, i.e. the Petitioner and Respondent No. 7, no direction can be issued for revocation of revised-cum-completion plan, which purports to be in respect of construction, raised on Respondent No. 7''s exclusive property bearing Khasra No. 1524/1361/718/2/1. Respondents are disputing Petitioner''s claim that construction has been raised on joint property, bearing Khasra No. 1353/706. They have refuted the allegation not only in the present writ petition, but also in the suit, pending before the Civil Court. Matter is still pending with the Civil Court. The said Court has yet to decide whether the construction is on the joint property of the parties or exclusive property of Respondent No.7.

In the facts and the circumstances of the case, as summed up hereinabove, right course for the Petitioner is to approach the Civil Court where the suit is pending for revocation of revised-cum-completion plan, as a consequential relief to the relief of mandatory injunction, already sought by her.

In view of above stated position, present petition is dismissed.