1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.96 of 2008 with LPA No. 97/2008. Judgment Reserved on:31.12.2009. Decided on: 9.4.2010 1. LPA No. 96 of 2008 Amarbir Pasricha …..Appellant. VERSUS State of HP & ors …..Respondents. 2. LPA No. 97/2008 Commodore Devinder Jit Singh ....Appellant. VERSUS State of HP & ors ...Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting? For the Appellant: Mr. K.D.Sood, Mr. Sanjeev Sood and Mr. Mukul Sood, Advocates. For the Respondents: Mr. Ankush Sood, Addl. AG R.B.Misra, Judge. The above mentioned two Letters Patent Appeals have been preferred against a common order dated 1.7.2008 passed by learned Single Judge in CWP No.139/2006 (Amarbir Pasricha Vs.State of HP & ors) and CWP No.138/2006 (Commodore Devinder Jit Singh (Retd) Vs. State of HP & ors. Learned Single Judge by a common order dated 2 1.7.2008 has been pleased to dismiss both the above mentioned writ petitions. 2. Since more or less identical questions of law and facts are involved in both these letters patent appeals ( in short ‘LPA’), therefore were heard together and are being disposed of by a common judgment. 3. Following prayers were made in both the writ petition Nos. 139/2006 and 138/2006 by the appellants herein (writ petitioners) as below:- A. Quash the communication/order Annexure P-7’ B. Direct the respondents to approve the plans for the proposed cottages of the petitioner so as to enable him to proceed with the construction; C. Direct the respondents to acquire the land of the petitioner and pay him requisite compensation for the price of the land and expenditure incurred as also the loss suffered by him all these years because of the acts of the respondents; D. Direct the production of relevant records; For convenience, the facts of LPA No. 97/2008 are being enumerated here-in-below exhaustively. 4. It appears that the appellant, namely, Commodore Devinder Jit Singh, herein ( the writ petitioner ), retired as Senior Naval Officer, had purchased a plot of land measuring 00-52-92 hectares (about 16 biswas) comprised in khasra No. 73/2, Khata Khatauni No. 2/3, Mauza/village Chharabra, Pargana Dharti, Patwar Circle Mool Koti, Tehsil & District Shimla. He submitted application for building permission for the construction of cottages. The issue was discussed in the meeting of Special Area Development Authority, Kufri Special Area (in short called Authority) held on 10.6.2002. The matter was referred by the Chairman- 3 cum-Deputy Commissioner, Shimla, to the Commissioner-cum-Secretary (Home) on 17.7.2002. The Principal Secretary (Home) to the Government of H. P. sent letter dated 24.8.2002 to the Director General of Police, seeking his opinion in consultation with Additional Director General of Police (CID), Himachal Pradesh and President’s Secretariat. The Member Secretary of Authority, Kufri Special Area had sent a communication dated 5.2.2003 to the writ petitioner, indicating him that no construction should be undertaken till such time the clearance is given by the concerned security agencies, who are responsible for the securities of VVIP’s, so that, case was forwarded to the Department of Home for consideration and orders. The Director General of Police vide letter dated 12.6.2003 informed the Additional Chief Secretary (Home), {in short ACS (Home)} Government of H. P. that the residential construction of any kind in the vicinity of Retreat area being VVIP’s zone was not advisable from security point of view and thus the permission for raising the construction could not be recommended. 5. ACS-cum-Secretary (Home) to the Government of Himachal Pradesh had conveyed to the Chairman-cum-Deputy Commissioner of Authority on 1.7.2003, indicating that on the basis of report from Addl. CID, Himachal Pradesh, the residential construction of any kind in the vicinity of that area was not advisable. Since the `Authority’ did not grant permission to the writ petitioner to raise the construction in V.V.I.P’s area, as such, feeling aggrieved by the decision of the State Government, appellant herein, assailed the decision of the State Government by way of filing CWP No. 641/2003. The said writ petition was disposed of on 10.8.2004. The extract of the order dated 10.8.2004, relevant for the purpose, is reproduced as below: 4 “ .....Accordingly, communication No. Home(A) D (1) 25/92 dated 1.7.2003 was sent by the Additional Chief Secretary (Home) addressed to the Chairman, SADA informing him that because of the aforesaid reasons the permission could not be granted. Based on the aforesaid facts, we on our own, as far as the merits of this case go, do not feel inclined to interfere in the matter but at the same time also do feel that perhaps the issue relating to the grant of permission to the petitioner from security point of view has not thoroughly been examined or considered, and in any case apparently the petitioner has not been afforded a hearing in the matter. Without, therefore, interfering in the aforesaid decisions taken, and even while disposing this petition, we permit the petitioner to make a fresh representation, if so advised, directly addressed this time to the Chief Secretary to the Government of Himachal Pradesh, requesting the State Government to grant permission for construction and for clearance from security point of view. If the petitioner makes such a representation within two weeks from today, we direct the Government of Himachal Pradesh, particularly the Chief Secretary and the Director General of Police, to consider such a representation purely on its merits and to decide, by passing a speaking order whether to grant permission and clearance from security point of view, keeping in view the fact that the building proposed to be constructed is indeed in a VVIP area and alls the attendant security considerations. The Government of Himachal Pradesh may also obtain the views of Central Security Agencies in the matter if it is considered advisable or desirable to do so. The petitioner shall be afforded a right of hearing in the matter. The final decision on the merits of the case, by passing a speaking order shall be communicated to the 5 petitioner within three months from the date of the receipt of the fresh representation. The petition accordingly is disposed of. No order as to costs.” 6. In reference to above judgment dated 10.8.2004, appellant herein preferred representation to the Chief Secretary of State of H.P on 17.8.2004 ( Annexure P-6 ). The Principal Secretary (Home) to the Government of H.P. sent a communication to the Secretary to the President of India on 12.10.2004, enclosing the earlier correspondence and the order dated 10.8.2004 passed in CWP No. 641/2003. 7. The Inspector General of Police, CID, State of HP also written letter to the Director, Town & Country Planning, Shimla (TCP) on 27.10.2004, seeking certain clarification in the facts and circumstances as to whether the area in question has been categorized as “Green Belt Area” or otherwise and also seeking clarification as to what kind of residential building plan is sanctioned for concerned area, Setbacks, height, number of stories allowed etc. The Under Secretary (EBA) of the President’s Secretariat sent a communication to the Principal Secretary (Home) to the Government of HP on 11.11.2004. The text of the letter dated 11.11.2004 reads as below: “ With reference to your No. Home (A)E (3)-42/2003-II dated 12.10.2004, I am directed to state that the responsibility for the security of President of India when the President is at the Retreat/Shimla is that of the State Government and the State Government should give a considered opinion in the matter. However, in terms of the long-term perspective and consequences that may follow in granting such a permission and after taking due consideration some embargo may have to be placed by notifying certain area surrounding the Retreat as ‘No 6 Construction Zone’. Otherwise, the possibility of other such demands snowballing on the strength of the present precedent cannot be ruled out.” 8. The Inspector General of Police (CID) Himachal Pradesh informed the Principal Secretary (Home) on 5th November, 2004 that the entire area of Khasra No. 264-269 should be kept free from any kind of construction as it was having the common boundary with ‘The Retreat Estate’ and the same was in very close proximity. The Inspector General of Police had specially recommended that the permission could not be accorded to the writ petitioner to raise the construction on following security considerations: 1. The permission to construct a residential house in this plot which is having common boundary with ‘The Retreat’ will certainly affect the security environment of ‘The Retreat’ adversely. 2. It will be difficult to stop or not to allow construction of such dwelling units on this plot in future quoting the present case as a precedent. 3. The construction in the said land including Khasra No. 265/73/2 will push the line of built-up houses by about 50 meters toward ‘The Retreat’ further reducing the ‘Sterile Zone’ from ‘The Retreat’. 4. The change of ownership of the property in future can not be stopped and the possibility of its being purchased by elements. 5. This dwelling unit, if allowed to be constructed can be used by persons with dubious motive and elements which can pose threat to the VVIP staying at ‘The Retreat’. 6. Weapons having range of 1.5 km can be easily fired from there as the distance is about 1 km. 7. The Retreat will come within the range of sniper-fire from this location. 8. As both, the Kalyani Helipad used by VVIP Helicopters & ‘The retreat’ are within 3 kms of this plot, this area is required to be 7 sensitized and secured from security point of view for safe landing and take off as also for movements and stay of VVIP/Protectees. 9. Any construction so close to the Helipad will certainly be a security risk for VVIP using Kalyani Helipad. 10. Funnel area the landing and take off funnel is normally secured upto 3 kms to guard against any threat from ground to air weapons. This location will be within this range. 9. The Committee comprising of the Chief Secretary (Himachal Pradesh) and the Director General of Police, Himachal Pradesh rejected the representation dated 17.8.2004 of writ petitioner on 16.11.2004. The operative portion of order dated 16.11.2004 reads as below:- “In the face of these categorical objections made not only by the President’s Secretariat but also by the ADGP CID, whose primary responsibility is to provide security to the VVIP in the State, permission as requested by both the parties cannot be granted to safeguard the life and well being of the VVIP. Both the representationists also referred to the permission granted to them by the Revenue Department for purchasing the said land under Section 118 of the Land Reforms and Tenancy Act and claimed that the said permission pre-supposes permission to build also. To our mind this assumption does not hold good since the building permission is given by a different authority as per the bye laws of the Municipal Corporation and Town and Country Planning Department and as such cannot be said to have been granted automatically along with the permission to purchase the land. Based on what has been stated above, we reject the request of the representationists who may be informed accordingly.” 10. The said decision dated 16.11.2004 was conveyed to the appellant on 30.11.2004. Being aggrieved, the appellant herein has preferred CWP No. 138/2006 [assailing the decision of the State Government dated 16.11.2004, communicated on 17.11.2004 (Annexure 8 P-7)]. The parties had exchanged their pleadings. Replies by way of counter affidavit as well as rejoinder affidavit were filed. 11. This Court in similar case i.e. CWP No. 87/2007 had directed the State to apprise the court as to whether the land of the petitioner as well as similarly situated persons could be acquired or not. The State of HP had not agreed to acquire the land, however, vide communication dated 27.2.2008, the similarly situate persons were permitted to use the land for agriculture, horticulture, and floriculture purposes. The State of HP was directed on 14.3.2008 to convey whether the permission to raise one storeyed building could be permitted or not. The Principal Secretary (Home), Govt. of HP, in that reference, sent a letter to the Secretary to the President of India on 4.4.2008 seeking permission/no objection for the construction of a house by the writ petitioner at Chharabra. 12. In such context, a letter dated 16.5.2008 was received by the Principal Secretary (Home) to the Govt. of HP alongwith a copy of letter of President’s Secretariat, according to which, the President’s Secretariat has not given permission/no objection in favour of appellant herein for raising construction. The appellant herein, has also moved CMP No. 1425/2008 under order 6 Rule 17 CPC, seeking amendment of the writ petition which was allowed on 16.6.2008. However, the State Government has not chosen to file reply to the said amended writ petition and submitted to argue on the basis of earlier replies on behalf of the State Government. 13. In view of the pleadings, rival contentions and perusal of records relevant for the purpose presented on behalf of State Government, learned Single Judge adjudicated the said writ petition along 9 with CWP No. 139/2006 and by a common order dated 1.7.2008 dismissed both the writ petitions. 14. Mr.K.D. Sood, learned counsel appearing on behalf of the appellant has vehemently argued that the decision dated 16.11.004 conveyed vide letter dated 17.11.2004 ( Annexure P- 7) and subsequent communication dated 30.11.2004 are not in consonance with the law and the appellant herein has been discriminated vis-à-vis Smt. Priyanka G. Vadra by flouting the provisions of Article 14 of the Constitution and earlier permission granted on 26.3.2008 by the Special Area Development Authority, Kufri Special Area came to be withdrawn because of change of political will, the appellant herein has been refused for construction, whereas, the appellant herein has already permitted full inspection and security checking of his residential building and has also submitted that without construction of house, land would not be taken care of properly. It has also been contended that the appellant herein is not going to utilize permanently the proposed constructed building so that any type of threat to VVIPs area may not arise and the appellant herein is also ready to make his absence during the visit of President of India by allowing the full use of said proposed building and to leave the house under the control of security personnel. Mr. K.D. Sood, has also argued that one Smt. Priyanka G. Vadra has also been accorded permission by the State Government for the construction of residential building, whereas, the appellant herein being legally entitled to get permission to construct the house, has been discriminated. 15. On the other hand, learned Addl Advocate General has vehemently opposed the submissions of learned counsel for the appellant herein by submitting that change of political will is not borne from the 10 official record. The appellant herein could have filed review petition on any specific ground, if he was aggrieved by the order of learned Single Judge. As has been argued on behalf of the State that the impugned order dated 16.11.2004 has been passed in compliance to the specific direction given by this Court passed on 10.8.2004 in CWP No. 641/2003 and while making representation on 17.8.2004 (Annnexure P-6), appellant herein had not referred the case of Smt. Priyanka G. Vadra, as, at the time of making such representation, the matter of granting permission in favour of Smt. Priyanka G. Vadra was not in existence. As the permission to Smt. Priyanka G. Vadra was granted on 14.11.2007 only i.e. much later to the filing of the representation and to the decision of rejection of the case of the appellant herein. As has been argued on behalf of the State that the orders dated 16.11.2004 and 30.11.2004 are in consonance with law and the same have been passed in view of threat perception to VVIPs. There is no comparison between the case of the appellant herein vis-à-vis the case of Mrs. Priyanka G. Vadra as the necessary permission has been accorded in her case by all the relevant concerned agencies including the State Intelligence Agency and no objection having been given by the President’s Secretariat in case of Mrs. Priyanka G. Vadra. It has also been argued on behalf of the State that the decision not to permit the appellant herein to raise the construction in proximity of the ‘Retreat’ is based on executive policy i.e. security point of view. 16. The main contention of the appellant herein in LPA is that the State Government has decided in principle to accord permission to construct cottages subject to certain conditions as per noting portion dated 26.3.2008 and the appellant herein has been discriminated by the State 11 Government, whereas, Mrs. Priyanka G. Vadra has been allowed to construct the cottage in the vicinity of the “Retreat”. 17. It has also been submitted on behalf of the appellant herein that alternatively, appellant’s land could be acquired. However, the State government has not agreed to acquire the land of the appellant herein and similarly situated persons. It has also been argued that the permission for agriculture, horticulture and floriculture was accorded on the basis of letter dated 27.2.2008. This court also directed on 27.2.2008 as to whether appellant herein could be permitted to raise single storeyed building on the basis of land purchased by him. The State Government had informed this court that the matter was taken up with the President’s Secretariat on4.4.2008 and the President’s Secretariat has not accorded permission/no objection to the appellant herein as is evident from the letter dated 16.5.2008, which reads as below:- “I am directed to invite reference to your letter No. Home (A) E(3)-9/2006 dated 4.4.2008 on the above cited subject. It is noted that the request of Commodore Singh and Smt. Pasricha seeking permission for construction of residential house at the said plot was duly examined by the Government of Himachal Pradesh and a detailed speaking order was passed jointly by the then Chief Secretary and the then Director General of Police on 16.11.2004 wherein their request for permission to undertake construction work was rejected, quoting ten security considerations cited by the ADGP (CID) vide his letter dated 5.11.2004. As you are aware, the President’s Secretariat had already furnished its views to the State Government of Himachal Pradesh on the same request made earlier by Commodore Singh and Smt. Pasricha and a copy of the said communication dated 11.11.2004 is enclosed for ready reference. Subsequent to the aforementioned letter, no additional/supplementary inputs have been brought to the knowledge of this Secretariat in this matter, which would merit 12 any departure from our considered opinion conveyed earlier. It has been further noted in para 3 of your letter dated 4.4.2008 that the comments of the President’s Secretariat on the instant request has been sought in the light of this office letter of even number dated 14.11.2007 regarding permission for construction of house in Mohal Chharabara, Tehsil Shimla, in respect of Smt. Priyanka Vadra. It may be pertinent to mention that the no-objection in that case was granted based on the recommendation contained in the Security Assessment Report furnished by the office of Inspector General of Police, Himachal Pradesh vide letter No.S-2 (A) SEC/07 dated 11.10.2007 as annexed to the confidential report bearing No. Home (A) F (13)-5/2007 dated 11.10.2007 from the Principal Secretary (Home), Government of Himachal Pradesh. Attention is also adverted to the fact that the above cited Security Assessment Report of the State Police had specifically highlighted the special and distinctive grounds for giving their no-object in the case of Smt. Priyanka Vadra, particularly her status as an SPG protectee. In view of the above factors and the security concerns indicated by your ADGP (CID), this Secretariat is not in a position to give its no-objection in respect of the request of Commodore Singh and Smt. Pasricha.” 18. The contents of the above letter dated 16th May, 2008 reveal that in reference to the question of vital public importance of the security of the VVIPs’ the permission/no objection has not been given in favour of the appellant herein by the President’s Secretariat as it is the bounden duty of the Central Government and State Governments to protect the VVIP like the President of India. It appears that the State of Himachal Pradesh has made inquiry in right perspective taking into consideration the threat perception to the security of the President of India. 19. Learned Single Judge has in the impugned order taken into consideration the contents of the letter dated 11.10.2007 that the State 13 Government while referring the case of Smt. Priyanka G. Vadra has mentioned that she was `SPG’ protectee. The protection given to Smt. Priyanka G. Vadra is regulated under the Special Protection Group Act, 1988 ( in short ‘SPG’ Act) . Learned Single Judge has elaborately given the statement of objects and reasons of SPG Act and has also considered different aspects of `SPG’ Act as well as the Special Protection Group ( Amendment ) Act, 1999 which was brought on 16.12.1999 in `SPG’ Act, 1988 and also dealt in detail about the proximity security’ as provided in `SPG Act’, relevant for the purpose of the case. Learned Single Judge has also dealt in detail the relevant provisions of Special Protection Group Act, 2003 and has observed that the Special Group has to provide the security to the Prime Minister, Ex Prime Minister and to the members of his immediate family. Smt. Priyanka G. Vadra has been provided proximate security by the `SPG’ and this factor has also weighed with the State Intelligence Agencies as well as President’s Secretariat while according permission/no objection in her favour to raise the construction in Chharabra Muhal near The Retreat. Learned Single Judge has rightly appreciated the stand of the State Government that Smt. Priyanka G. Vadra is a separate and distinct class, having `SPG protection’ and the appellant herein cannot compare himself with her for the purpose of according same treatment in reference to raising the construction of the building in the sensitive area. Learned Single Judge has rightly referred and relied on the judgment of Hon’ble Supreme Court in Commissioner of Police, Delhi & anr Versus Registrar, Delhi High Court, New Delhi AIR 1997 SC 95, whereby it has been held that the expression “proximate security” has to be given purposive meaning. Their Lordships have held as under: 14 “We cannot help remarking that the will of the Parliament reflected in the Act is bold, unequivocal, comprehensive and wide in nature, nowhere permitting withdrawal, limiting or proscribing of the proximate security statutorily conferred on the protectee. The mere fact that the protectee has to go to Court as an undertrial, does not disentitle him to the proximate security. His being in transit or getting within the precincts of the Court does not absolve the group from extending to him the “Proximate security” as threat perception to him is no way diminished. The expression “proximate security” has to be given a purposive meaning, for, it could never have been intended by the Parliament that security would be restricted to places of functions, engagements, residence or halt on resorting to a literal meaning. The purposive approach would warrant these places to be wide enough to include visits of a protectee to Courts, compulsive or voluntary and in no way can the Group be absolved from its statutory responsibility on the specious plea that having brought the protectee to the Court precincts, the obligation to protect him would then shift to the Court, who may either, under orders, place the protectee back to the group, or send him into Police or Judicial Custody, shifting the obligation of his protection to others. A contrary view expressed on these lines by Shri Bhat deserves outright rejection. It has to be borne in mind that the protectee is a protectee all the time, as long as he keeps breathing for the period