IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 446 of 2000 Judgment reserved on 22.11.2010 Date of decision: 23.11.2010 Mehar Chand ….. Appellant. Vs. Municipal Corporation & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Inderjeet Singh Narwal, Advocate. For the Respondents : Mr. Shrawan Dogra, Advocate, for respondents No.1 and 2. Mr. J.S. Rana, Assistant Advocate General, for respondent No.3. Kuldip Singh, J . This appeal has been directed against judgment, decree dated 10.8.2000 passed by learned Addl. District Judge, Shimla in Civil Appeal No.196/1 of 96/92, allowing the appeal and restraining the respondents from realizing the compounding fee with liberty to respondents to take any other legal action as may be provided under the Act and bye-laws. 2. The facts in brief are that the appellant had filed a suit for declaration that after order dated 3.9.1990, the respondents Whether the reporters of the local papers may be allowed to see the Judgment? …2… specially respondents No.1 and 2 have no jurisdiction to question the legality of the RCC projection/chhajas in the basement (now first floor of the building of the appellant) and the order dated 11.9.1991 passed by Commissioner of respondent No.1 is illegal, void and without jurisdiction. The demands of respondent No.1 requiring the appellant to deposit a sum of Rs.26,000/- towards compounding fee are also void, illegal and not binding on appellant. The prayer has been made for permanent prohibitory injunction restraining respondent No.1 requiring the appellant to deposit a sum of Rs.26,000/- towards the compounding fee or recovering the same from appellant in pursuance to order dated 11.9.1991. 3. The case of the appellant is that he got sanctioned a plan for the construction of a building at Fagli. The plan was sanctioned by respondent No.1 on 6.9.1984. The appellant as per sanctioned building plan has constructed two floors in the year 1986- 1987. He could not raise further construction due to various reasons. 4. The respondent No.1 on 28.7.1990 had issued notice to appellant for unauthorized construction, another notice dated 7.8.1990 was issued by respondent No.1 alleging unauthorized construction. Notice dated 7.8.1990 was replied by appellant. The appellant also appeared in person before respondent No.1 who on 3.9.1990 passed an order. The appellant as per order dated 3.9.1990 was also required to file an affidavit swearing therein that he would not raise any construction on the RCC projection. 5. The appellant submitted revised building plan to respondent No.3 which was sanctioned on 4.4.1991. On 8.7.1991 …3… respondent No.1 informed the appellant that the revised plan submitted by appellant has been rejected. The appellant had submitted written reply on 11.7.1991 in response to letter dated 8.7.1991 of respondent No.1. 6. The respondent No.1 issued another notice dated 31.8.1991 purporting to be under Section 268 of the Municipal Corporation Act, 1979 (for short Act) alleging therein unauthorized construction. The details given in notice dated 31.8.1991 are contradictory to the details given in notice dated 7.8.1990. The appellant filed reply to notice dated 31.8.1991. The Commissioner of respondent No.1 however, passed an order dated 11.9.1991, directing the appellant to remove the RCC projection (Chhaja). The appellant vide reply dated 10.10.1991 submitted that the respondent No.1 had already decided the matter on 3.9.1990 and therefore had no jurisdiction to take up the matter again. The respondent No.1, however, through Architect Planner vide letter dated 11.9.1991 directed the appellant to comply the order dated 28.2.1992 requiring the appellant to deposit Rs.29,270/- towards compounding fee. The Architect Planner also worked out compounding fee of deviations at Rs.26,000/-. On these facts the suit was filed. 7. The suit was contested by respondents No.1 and 2 by filing reply, in which preliminary objections of maintainability, jurisdiction in view of Section 268(4) of the Act, suppression of material facts have been taken. On merits, it has been submitted that original plan of the appellant was sanctioned on 6.9.1984 for three storeys. The appellant had constructed ground floor, Ist floor and …4… columns of 2nd floor were erected upto 2.45 metres height. The basement was opened by the appellant in the year 1990. Therefore, notices under Sections 268 and 269(i) of the Act were issued to the appellant. The notices were also issued to appellant for raising unauthorized construction of the basement. The respondent No.1 had directed the appellant vide order dated 3.9.1990 to get prior approval of basement floor from the Municipal Corporation and Town and Country Planning Department, Shimla within three months, failing which afresh proceedings were to be initiated against appellant. It has been denied that appellant had not raised any construction after the year 1985. The appellant had done deviations beyond the sanctioned plan for which Rs.26,000/- were directed to be paid by the appellant as compounding fee. The respondents No.1 and 2 have prayed for dismissal of the suit. 8. The respondent No.3 had filed separate written statement in which it has been pleaded that planning permission for construction of three storeys residential house was granted in favour of appellant vide letter dated 27.11.1982. The appellant had submitted revised plan on 12.10.1990. The planning permission for carrying out basement and changing roof of the existing three storeys building was granted vide letter dated 4.4.1991 after obtaining affidavit from appellant that he would demolish the parapets and projections raised on Ist floor to the extent that clear side set backs of 1.00 meter each shall be created as per regulations of IDP, Shimla. …5… 9. The appellant filed replication to the written statement of respondents No. 1 and 2. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to declaration as sought for? …OPP 2. Whether the plaintiff is entitled to prohibitory injunction as prayed for? ..OPP 3. Whether the suit is not maintainable in the present form? ..OPD 4. Whether this court has no jurisdiction to try the suit? OPD 5. Whether the plaintiff has not come to the court with clean hands? ..OPD 6. Relief. The issue No.1 was answered in affirmative, issues No.2 to 5 were answered in negative and the suit was partially decreed by learned Sub Judge on 30.11.1996. It was held that the order of respondent No.1 dated 28.2.1992 is illegal. The relief of permanent injunction was refused to appellant. In appeal, the learned Addl. District Judge allowed the appeal. The respondents were restrained from realizing the compounding fee. However, it was made clear that the respondents shall be at liberty to take any other legal action as may be provided under the Act and bye-laws, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether once it is proved that the construction was started by the plaintiff/appellant in the year 1984 in pursuance of the sanction dated 6.9.1984 granted by the statutory authority and further the plaintiff had constructed two floors upto the year 1986-87 and further that with regard to the said …6… construction, appropriate orders were passed by the Commissioner on 3.9.1990 and 11.9.1991 as per the provisions of the H.P. Municipal Corporation Act, 1979, which was in force at that time, the learned court below erred gravely while deciding the appeal as per the provisions of Section 254 of the Municipal Corporation Act, 1994, which was not applicable at the relevant time of either raising the construction or passing of the orders by the Commissioner, Municipal Corporation, Shimla? 2. Whether the appellant/plaintiff can be compelled to deposit the alleged compounding fee in the absence of any direction to do so in view of the orders dated 3.9.1990 and 11.9.1991 passed by the Commissioner, Municipal Corporation, Shimla? 3. Whether once the permanent prohibitory injunction has been granted in favour of the plaintiff/appellant, the learned court below has erred in law while granting the liberty to the respondents/defendants to take further action with regard to the construction in question? 10. I have heard learned counsel for the parties and have also gone through the record. The grievance of appellant is that learned lower appellate court has erred in law in granting liberty to the respondents to take further action with regard to the construction in question once the respondents were restrained from recovering compounding fee. It has been submitted that the defence of the respondents regarding compounding fee has not been accepted by …7… the learned lower appellate court. In other words, pleas of the appellant were accepted and therefore, the learned lower appellate court by giving liberty to respondents to proceed against appellant in accordance with law has erred in giving handle to respondents to harass the appellant. 11. The learned counsel for respondents No.1 and 2 has submitted that the appellant in substance has challenged the illegality of orders dated 3.9.1990, 11.9.1991 of respondent No.1 together with demand of Rs.26,000/- on account of compounding fee. It has been submitted that learned lower appellate court has accepted the case of the appellant for realization of compounding fees on the ground that respondent No.1 had passed contradictory orders demanding contradictory amount of compounding fee i.e. firstly Rs.29,270/- and subsequently Rs.26,000/- . The learned lower appellate court on the contrary has recorded a finding that deviations made by the appellant are not minor and not covered under Section 254 of the Act. It has also been held that if the Commissioner has no power to compound the case of the appellant then automatically Commissioner has no power to realize the compounding fee. It has been submitted that the learned lower appellate court has nowhere recorded a finding that orders dated 3.9.1990 and order dated 11.9.1991 of respondent No.1 are wrong and illegal. 12. The substantial questions of law referred to above are interconnected and therefore, all of them are taken up together collectively for disposal. Ex.PW1/D is the order dated 3.9.1990 wherein the Commissioner has directed that no further proceedings …8… are required, if the appellant would submit an affidavit as stated in the order dated 3.9.1990 and obtains the permission of the MC, Shimla for the storey in the basement after obtaining the permission of the Town & Country Planning Department within a period of three months from the date of order. Ex.PW-1/K is the order dated 11.9.1991 wherein the Commissioner has directed the appellant to remove the Chajja in a width of 30 cm as directed by the Town and Country Planning Department and the basement floor would be treated as one floor and the plan be dealt with accordingly. 13. The grievance of the petitioner is that once the order dated 3.9.1990 was passed by the Commissioner thereafter the Commissioner had no jurisdiction to pass order dated 11.9.1991. The order dated 3.9.1990 was conditional. It emerges from the plaint that after 3.9.1990 the appellant had submitted revised plan to respondent No.3. The respondent No.1 through Architect Planner informed the appellant on 8.7.1991 that the revised plan submitted by the appellant has been rejected on the ground that the measurements of the constructed building were not in conformity with the revised plan. The appellant has accepted the order dated 3.9.1990, in compliance to that order he had submitted revised plan which was rejected on 8.7.1991 and the rejection dated 8.7.1991 has not been assailed in the plaint. Once there was no sanctioned revised plan, then the Commissioner had jurisdiction to pass order dated 11.9.1991 and that order cannot be said to be wrong, illegal and without jurisdiction. The learned trial court as well as learned lower appellate …9… court have not recorded any specific finding regarding the validity of orders dated 3.9.1990 and 11.9.1991. The two Courts below have mainly dealt with the question of compounding fee. 14. The learned counsel for the appellant has submitted that the learned lower appellate court has erred in considering the case of the appellant under sub-section 5 of Section 254 of the H.P. Municipal Corporation Act,1994 whereas the case of the appellant is to be considered under the H.P. Municipal Corporation Act, 1979. There is substance in the submission of the appellant that the case of the appellant is to be considered under the H.P. Municipal Corporation Act, 1979 and not under the H.P. Municipal Corporation Act,1994, but it makes no substantial difference in the ultimate result. The learned lower appellate court has held that compounding fee cannot be recovered from the appellant. The respondents have not assailed the judgment, decree of the learned lower appellate court, hence, they are bound by the impugned judgment, decree. 15. The contention of the appellant that learned lower appellate court has erred in giving liberty to the respondents to proceed in accordance with law has no force. In case, the respondents have statutory right to proceed in the matter then that right cannot be curtailed unless and until there is a finding that there is no foundation for exercising statutory right. In the impugned judgment, decree there is no finding that the respondents have proceeded against the appellant without any basis. The finding of compounding fee is severable from the rest of the findings. The appellant cannot be said to be aggrieved against the findings of …10… compounding fee which has been decided in his favour. The apprehension of appellant that under the garb of liberty given to the respondents to proceed against the appellant in accordance with law, the respondents will harass the appellant, has no force. There is nothing on record that after the passing of the impugned judgment the respondents have harassed the appellant. The substantial questions of law No.1 to 3 are decided accordingly. There is no merit in the appeal. 16. No other point was urged. 17. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. November 23, 2010. ( Kuldip Singh ) (sks) Judge.