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Judgment
Anoop Chitkara, J
All these cases bearing Nos. CWP No. 54 of 2019, CWP No. 654 of 2000, CWP No. 287 of 2001, RSA No. 452 of 2007, RSA No. 459 of 2007 and
FAO No. 315 of 2002, were heard together and are being decided simultaneously.
However, this Court is passing separate detailed judgments in each of these cases.
Seeking various reliefs, all revolving around the sanction of the additional building plan by Municipal Corporation Shimla in favor of 5th respondent,
the Petitioner, whose land is adjacent to the property of 5th respondent, has come up before this Court asking for issuance of Mandamus by quashing
not only the building plan (Annexure P-9) but also restoration of status quo ante for his demolished railing, and preparation of new field map.
The petitioner claims to be an owner in possession of land measuring 5 Biswas described in khasra no. 357 (Old 190), situated in Revenue village
Bagog, (Near Summerhill), Tehsil and District Shimla, HP. As per the counsel for the petitioner, this land was purchased vide sale deed dated 21 Nov
1986, and the mutation was attested on 24 Nov 1986. The 5th Respondent Sh. Ravinder Parkash and his wife, Smt. Surekha, the 6th Respondent, are
the owners in possession of the adjoining land, measuring 1-12 bighas (32 Biswas), described in khasra nos. 353 and 354 (Old 189), in the same
revenue village. As per the counsel for the 5th and 6th respondents, they had purchased the land vide sale deed dated 1 July 1987.
I have heard the counsel for the parties and have gone through the entire record, including the written arguments filed by the Petitioner.
The reliefs claimed by the petitioner falls in the following three categories:
A. DISPUTE PERTAINING TO FENCE:
The Petitioner claims that the 5th Respondent had erected an iron fence between their boundaries, after proper demarcation done on 28-08-1990
and 9-11-1990, vide Annexures P-5 & P-6. However, the 5th Respondent claimed that the land beyond this fence also belongs to him. The Petitioner
further contended that the 5th Respondent demolished the said iron fence through his Contractor, paving the way for the extension of his existing
building.
Placing reliance upon the admission made by the 5th respondent vide Annexure P-5 and P-6, whereby he had admitted his satisfaction over the
boundaries fixed and boundary posts erected by the Revenue officials, the Petitioner contends that he cannot blow hot and cold over the admissions
once made.
The 5th respondent contended that he had raised an iron fence, but taking advantage of his absence, due to his posting, the petitioner demolished the
said fence on 16.2.2000, which led to the registration of an FIR against him.
The case set up by the 5th and 6th respondents is specific to the extent that a civil suit no. 199/1of 1995/1991, filed by them against the petitioner,
about the encroachment was pending between the parties at the time of filing of the present writ petition. Thus, the present writ petition, for a similar
relief is not maintainable.
To decide the dispute about the removal of iron fence, needs evidence, by examining witnesses, for which the writ Court is not an efficacious
remedy. Consequently, this Court refrains itself from issuing such writ, because the controversy involves disputed questions of facts.
B. ERRONEOUS SETTLEMENT PLANS :
The petitioner pleaded that the 5th respondent lays his claim over the land adjoining his land, based upon erroneous field maps of Settlement
Authorities, the 4th respondent herein. The response of the 5th respondent is that the petitioner is an encroacher over his land. While admitting the
ownership of the petitioner over the land described in khasra no. 357, the 5th respondent alleged that the petitioner had built a portion of his house over
the land belonging to him.
The stand of the Settlement Collector, the 4th respondent, on the Affidavit is that the Tehsildar Settlement had correctly prepared the Tatima
Tafawat, according to the demarcation dated 15.9.1997. In the Paras 5&6 of the Sur-rejoinder, the Settlement Officer, on Affidavit stated that
Tehsildar Settlement had found encroachment by the Petitioner over the land of the 5th respondent over khasra no. 189/1, to the extent of 09 biswansi.
Given the Affidavit filed by the Settlement Officer, the issue involves disputed questions of fact. Resultantly, this Court is not inclined to decide the
disputed questions of facts in its writ jurisdiction.
C. DISPUTE PERTAINING TO BUILDING SANCTION PLAN:
The Petitioner claims that the 5th Respondent applied for additional building plan over the land, which was beyond the iron fence, claiming the
same to be in his ownership. The Petitioner further pleaded that the land over which the 5th Respondent sought additional building plan belonged to the
Petitioner.
On coming to know about such a plan, the Petitioner sent his objections (Annexure P-7) to the Municipal Corporation, Shimla, the 3rd Respondent,
herein. However, without hearing him, the Municipal Corporation, Shimla gave permission (Annexure P-9), to the 5th Respondent to go ahead with the
construction as per the amended and altered building plan.
The grievance of the Petitioner is that the sanction plan Annexure P-9, allows the 5th Respondent to construct up to 4.5 meters from his existing
building towards the Petitioner’s house. His further case is that there is not that kind of space available between these buildings, and there is only
one meter of setback between the existing boundary and the current structure of the 5th Respondent.
The 5th respondent submitted that if the petitioner had any grudges against the sanction, then the remedy lay in filing the appeal/revision, and not
by invoking the writ jurisdiction. The 5th respondent further contended in Para 8 that under the new sanctioned plan, the building that he proposes to
construct would not intrude the land under the existing structure or the staircase of the petitioner.
In Para 10 of the reply, the 5th respondent claimed that it is for him to leave or not to leave any setbacks in his land, and it is none of the concerns
of the petitioner.
The Municipal Corporation, the 3rd respondent, filed its reply supported by an affidavit of its Commissioner. The Reply affidavits state that its
concerned Junior Engineer had inspected the spot and noticed that the construction was going in as per sanctioned plan. The affidavit further reads
that the proposal of the 5th respondent for sanction of the additional building was as per the Municipal Corporation Act, its Byelaws, and based upon
the revenue records submitted along with the application. The petitioner had also shown the setbacks.
Given the affidavit filed by the Commissioner, Municipal Corporation, Shimla, it is clear that the sanctioned plan is on the land, which as per
revenue records and physical inspection of the site, is owned and possessed by the 5th and 6th respondents, and does not belong to the Petitioner.
It is a fundamental law that the Municipal Corporation Shimla, and for that matter, any sanctioning authority of building plans, can sanction plans
only if the building proposed to be constructed, falls squarely on the land over which the applicant has undisputed rights to raise such structure. Those
rights may be by way of no-objection certificates of other co-owners, or persons whose names reflect in the revenue records in the column of
possession. The only exception to this rule of law is the areas wherein the revenue records mention the land as Abadi Deh, etc. The sanction of any
building plan neither confers ownership nor any other rights over the land beneath the structure, or the structure itself. Even after the permission, or
approval, or completion plan of any such structure or building, if it’s any portion, in any subsequent demarcation comes under the land, which is
beyond the area mentioned and described in such sanction/approval/ completion plan, then all such portions of the structure beyond the approved plan
shall deemed to be unauthorized, notwithstanding such sanction or final approval, by any authority whom so ever. The remedy to this would lie in
acquisition of ownership or similar rights over such land in accordance with law, and provided the rules permit the sanction of plan.
Consequently, because of the affidavits of the Settlement Officer and the Commissioner, Municipal Corporation, Shimla, wherein the said building
plan was over the land owned and possessed by the 5th and 6th respondents, the Petitioner has no cause of action to challenge the plan Annexure P-
Given the above analysis and reasoning, the writ petition fails and is dismissed. All pending applications, if any, are closed.