IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 138/2006 and CWP No. 139/2006 Reserved on : 20.6.2008 Decided on.1.7.2008 CWP No. 138/2006 Commodore Devinder Jit Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents CWP No. 139/2006 Mrs. Amarbir Pasricha. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. K.D. Sood, Advocate. For the respondents : Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, J. Since common questions of law and facts are involved in CWP No. 138/2006 and connected writ petition No. 139/2006, therefore, these were heard together and are disposed of by way of a common judgment. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 CWP No. 138/2006: The brief facts necessary for the disposal of this writ petition are that the petitioner is a retired Senior Naval Officer and has purchased a plot of land measuring 00-05-92 hectares equivalent to approximately 16 biswas comprised in khasra No. 73/2, Khata Khatauni No. 2/3, Mauza/ village Chharabra, Pargana Dharti, Patwar Circle Mool Koti, Tehsil and District Shimla. The permission was accorded by the State of Himachal Pradesh under section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The petitioner submitted an application for building permission for the construction of cottages. The matter for according building permission was taken up in the 9th meeting of Special Area Development Authority, Kufri Special Area held on 10.6.2002. The following decision was taken in the meeting pertaining to the case of the petitioner, which reads thus: “The case No. 104/2002 of D.J. Singh, received for planning permission in Kh. No. 73/2 located at Chharabra. The change of landuse from undefined use to residential use is requested. The case fulfill all the requirements of I.D.P. Shimla regulations except the area falls in V.V.I.P’s zone where the approval from the security agencies, responsible for the security of V.V.I.P.’s is required. In view of above, it was decided by the house to send the case to Government for consideration.” The Chairman-cum-Deputy Commissioner, Shimla, Special Area Development Area, Kufri, Shimla wrote a letter to the Commissioner-cum- Secretary (Home) to the Government of Himachal Pradesh on 17.7.2002. The Principal Secretary (Home) to the Government of Himachal Pradesh sent a communication to the Director General of Police whereby his opinion was solicited after consultation with the Additional Director 3 General of Police (CID), Himachal Pradesh and President’s Secretariat. The relevant extract of letter dated 24th August, 2002 reads thus: “Now the case is for permission to construct residential houses by Smt. Amarbir Pasricha and Shri D.J. Singh. In view of the above, you are requested to send your views from security angle after consulting ADGP (CID), H.P. and President’s Secretariat on the enclosed two cases for planning permission received from the Chairman-cum-DC, Spl. Area Development Authority, Kufri Special Area.” The Chairman-cum-Deputy Commissioner, Special Area Development Authority, Kufri Special Area sent a communication to the Principal Secretary (TCP) on 7.1.2003 informing him that the matter had already been referred to the Department of Home, but no communication has been received from the Department as yet. The Member Secretary, Special Area Development Authority, Kufri Special Area had sent a communication to the petitioner on 5.2.2003. The text of letter dated 5.2.2003 reads thus: “This is with reference to your letter No.NIL dated 30.1.2003 on the above cited subject. In this context, it is stated that your case was put up in the SADA house in its 9th meeting held on dated 10.6.2002. It was decided by the SADA house, that as the proposal is in V.V.I.P’s zone where Home Deptt. Has advised that here should be no change in the ground situation and no construction should be undertaken till such time the clearance is given by the concerned security agencies, who are responsible for the security of V.V.I.P’s so that case was forwarded to the Deptt. of Home for consideration and orders and the same was brought to your notice during your personal visit to this office. Reminder in this effect has also issued to the Deptt. of 4 Home. But till now the reply is awaited. It is therefore, stated that further action on the case shall only be initiated after getting reply from Deptt. of Home. It is also advised that no development work shall be started at site without approval from this Deptt.” The Director General of Police sent information to The Additional Chief Secretary (Home) to the Government of Himachal Pradesh informing him that the residential construction of any kind in the vicinity of the Retreat area being V.V.I.P’s zone was not advisable from security point of view and thus the permission for raising the construction could not be recommended. The text of letter dated 12.6.2003 reads thus: “In this connection, the Addl. Director General of Police, C.I.D. H.P. was consulted in the matter who has intimated that the residential construction of any kind in the vicinity of that area is not advisable from security point of view and hence permission for this construction can not be recommended.” The ACS-cum-Secretary (Home) to the Government of Himachal Pradesh had conveyed to the Chairman-cum-Deputy Commissioner, Special Area Development Authority, Kufri on 1.7.2003 that on the basis of the report from the Additional Director General of Police, CID, Himachal Pradesh the residential construction of any kind in the vicinity of that area was not advisable. The text of letter dated 1.7.2003 reads thus: “I am directed to refer to your office letter No. SADA/Kufri/C.No.103/2002-237-38 dated 17.7.2002 and No.SADA/Kufri/C.No.104/2002-239-40 dated 17.7.2002 on the subject cited above and to say that the Additional Director General of Police, CID, H.P. was consulted into the matter who has intimated that the residential construction of any kind in the vicinity of that area is not advisable from security point of view and hence 5 permission for this construction can not be recommended. You are, therefore, requested to please take further necessary action.” In sum and substance, the Special Area Development Authority, Kufri Special Area had not granted the permission to raise the construction in the V.V.I.P’s area by the petitioner. The petitioner feeling aggrieved by this decision of the State Government approached this Court by way of CWP No. 641/2003. This Court disposed of the writ petition No. 641/2003 on 10.8.2004. The judgment dated 10.8.2004 reads thus: “Shorn of all unnecessary details, suffice it to say that after obtaining permission from the State Government for purchase of land, after actually purchasing the land and after complying with all other requisite formalities and statutory requirements, the petitioner requested for the permission to raise the construction, in the form of a residential building. Minutes of the 9th Meeting of Special Area Development Authority, Kufri Special Area (SADA) held on 10.5.2002 do reveal and indicate that the petitioner’s request for planning permission and for the change of land use from any undefined use to any residential, use was considered. In that meeting, SADA clearly and categorically observed and recorded that the petitioner’s case fulfilled all the requirements of IDP Shimla Regulations except that the area fell in VVIP Zone and hence approval from the security agencies was required. For ready reference, agenda Item No.xxiii forming a part of the aforesaid 9th Meeting proceedings is reproduced hereinbelow. It reads thus: “The case No.104/2002 of Shri D.J.Singh, received for planning permission in Kh. No.73/2 located at Chharabra. The change of land use from undefined use to residential use is requested. The case fulfil all the requirements of I.D.P. Shimla regulations except the 6 area falls in V.V.I.P’s Zone where the approval from the Security agencies, responsible for the security of V.V.I.P’s is required. In view of above, it was decided by the house to send the case to the Govt. for considerations.” On 17.7.2002 SADA sent a communication to the Commissioner-cum-Secretary (Home), Government of Himachal Pradesh, which reads thus: “Subject: Planning permission case of Shri D.J.Singh, at Retreat Charabra (VVIP’s Zone) for residential cottage/house. Sir, With refer to the subject cited above, this is to bring to your kind notice that this authority has received a planning permission case of Shri D.J.Singh for construction of residential house on the land bearing Khasra No.73/2 situated at Retreat, Charabra. The case was examined and it was observed that sub division of plot has already been approved by the Town & Country Planning Department in favour of Shri Chander Pal and others bearing Khasra Nos.70, 71, 73 and 75 on dated 21.09.1999. The Government has also accorded permission for purchase of land to Shri D.J.Singh for constructing residential house vide letter dated 20.6.2002 (copy enclosed). This department has got the instructions regarding permission to construct a Hotel near Retreat from the Financial Commissioner-cum-Secretary (Revenue) to the Government of Himachal Pradesh vide letter No.Rev.B.D.(1) 13/2001 dated 11th June, 2001 that there should be no change in the ground situation and no construction should be undertaken till such time the clearance is given by the concerned security agencies who are responsible for the security of VVIP. However, the planning permission case of Shri D.J.Singh at Retreat, Charabra is for consideration of residential building. 7 Keeping in view the above instruction, SADA in its 9th meeting held on 10.6.2002 decided to forward the case to Department of Home for consideration and order.” By this communication the response from the State Government was solicited which in effect and substance meant that the State Government’s clearance was asked for. Letter No.SADA-(Kufri)/2002-814-16 dated 7.1.2003 from SADA addressed to the Principal Secretary (TCP) to the Government of Himachal Pradesh also indicated that SADA was awaiting the response of the State Government and that in the absence of response from the State Government, the case could not be processed any further. On record is a copy of letter No. Home(A) B(1)25/92 dated 24.8.2002 from Additional Chief Secretary (Home), Government of Himachal Pradesh addressed to the Director General of Police, Himachal Pradesh wherein, based on the aforesaid facts the State Government requested the Director General of Police to send his views with respect to the security angle in so far as the case of the petitioner and Smt.Amarbir Pasricha were concerned relating to their planning permission earlier received from SADA. Apparently, the said communication dated 24.8.2002 had taken into account the views of the Military Secretary to the President which had even been reproduced in the aforesaid letter and based on such views of the Military Secretary to the President, permission/no objection earlier granted to another party, namely M/s TCNS Pvt. Ltd., New Delhi for construction of a Hotel was withdrawn. Ultimately, vide communication No.Estate.1- 14/88-10519-A dated 12.6.2003 the Director General of Police, Himachal Pradesh, Shimla conveyed to the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, the views of the Additional Director General of Police (CID) Himachal Pradesh that the 8 “residential construction” of any kind in the vicinity of the VVIP area could not be considered advisable from the security point of view and therefore, permission in favour of the petitioner could not be recommended. 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 all the attendant security considerations. The Government of Himachal Pradesh may also obtain the views of the Central Security Agencies in the matter if it is considered advisable or desirable to do so. The 9 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 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. In sequel to the judgment dated 10.8.2004, the petitioner made a representation to the Chief Secretary to the Government of Himachal Pradesh on 17th August, 2004. The Principal Secretary (Home) to the Government of Himachal Pradesh sent a communication to the Secretary to the President of India (Annexure R-1) on 12.10.2004. The text of the letter dated 12.10.2004 reads thus: “I am directed to refer to the subject cited above and to say that Special Area Development Authority, Kufri Special Area vide letters dated 17.7.2002 informed us that it received planning permission case of Smt. Amarbir Pasricha and Shri D.J.Singh for construction of residential house on the land bearing Khasra No.73/1 and Khasra No.73/2 respectively situated near Retreat Chharabra. Special Area Development Authority (SADA) Kufri has intimated that sub division of plots has already been approved by the Town and Country Planning Department in favour of Smt. Amarbir Pasricha and others on dated 21.9.99. The Revenue Department, Government of Himachal Pradesh had also accorded permission for purchase of land to Smt. Amarbir Pasricha and Shri D.J.Singh for constructing residential house dated 20.6.2002. It is submitted that a similar case for granting permission with regard to construction of a Hotel near “RETREAT” Chharabra, Distt. Shimla in favour of M/S TCNS Pvt. Ltd. New Delhi was received in this 10 Department from the Revenue Department, Government of Himachal Pradesh. The matter was taken up with the Secretary to the President of India, President House, New Delhi, for clarification with regard to permission for construction of a Hotel near “Retreat” (Chharabra) Distt. Shimla from security point of view vide this department letter No.Home (A) D(1)-25/92 dated 16.5.2001. The Secretary to the President of India, President House, New Delhi wrote us vide letter No.D-11023/2/2000-EBA dated 22-5-2001 that there should be no change in the ground situation and no construction should be undertaken till such time the clearance is given by the concerned security agencies who are responsible for the VVIPs security. SADA further intimated that however, the planning permission case of Smt. Amarbir Pasricha at Retreat Chharabra is for construction of residential building and referred the case to this department for consideration and orders. We, then wrote to the Director General of Police, Himachal Pradesh, Shimla vide letter dated 24.8.2002 to send his views from security angle with regard to granting of permission for construction of residential house by Smt. Amarbir Pasricha and Shri D.J.Singh in Chharabra, Retreat, Shimla. The Director General of Police, Himachal Pradesh, Shimla vide its letter dated 12.6.2003 intimated that the Addl. Director General of Police, CID, H.P. Shimla was consulted the matter who has intimated that the residential construction of any kind in the vicinity of that area is not advisable from security point of view and hence permission for this construction cannot be recommended. We have accordingly communicated this view to Special Area Development Authority (SADA) Kufri vide letter dated 1.7.2003. Aggrieved by this decision both the persons Smt. Amarbir Pasricha and Shri D.J.Singh filed Civil Writ Petitions in the Hon’ble High Court of Himachal Pradesh. A copy of Judgment 11 passed in C.W.P.No. 641/2003 in the case of Commodore Devinder Jit Singh (Retd.) Versus State of H.P. & others and a copy of Judgment passed in C.W.P. No.848/2003 in the case of Mrs. Amarbir Pasricha Versus State of H.P.& Others is enclosed herewith. In the judgment, the Hon’ble Court permitted the petitioner to make a fresh representation to the Government of Himachal Pradesh, requesting the State Government to grant permission for construction and for clearance from security point of view. Hon’ble Court further directed 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 all the attendant security considerations. Hon’ble Court further added that the Government of Himachal Pradesh may also obtain the views of the Central Security Agencies in the matter if so desirable to do so. In terms of the Orders passed by the Hon’ble High Court of Himachal Pradesh, representations have been received in this department from Smt. Amarbir Pasricha and Shri D.J.Singh. In this behalf which are enclosed. Since these representations are to be decided before 17.11.2004 giving personal hearing as per orders of the Hon’ble High Court. You are, therefore, requested to kindly give your earliest views/clarification in the matter at the earliest facilitating this State Government to take further action in the matter. Entire papers concerning the matter are enclosed. This may kindly be given personal attention please. The Inspector General of Police (CID), Himachal Pradesh wrote a letter to the Director, Town and Country Planning, Shimla on 27th October, 2004. The text of letter dated 27th October, 2004 reads thus: 12 “With reference to the subject cited above, H.P.Govt. vide their letter No.HSG-6(F)-5-2/04 dated 6.10.04, regarding the permission of land in Mauza Chharabara which falls in Planning Area (SADA) measuring 3-65-05 Hectars in Khasra No. 107 to 125, in addition to H.P.Govt. letter No. Home (A) E (3)-42/03-2 dated 12.10.04, regarding planning permission to Smt. Amarbir Pasricha & Sh. D.J.Singh to construct a cottage in Khasra No.73/2 measuring 00-04-25 Hectares has requested the CID Organization to give comments on the security point of view to give permission for further construction in the area. The land in question as mentioned above has been jointly inspected by the under signed and the other security agencies viz Intelligence Bureau and the Distt. Police as well as concerned Revenue Authorities today on 26.10.04. In view of the above, before going to the other facts particularly on security point of view kindly clarify whether the aforesaid area has been categorized as “Green Belt Area” or otherwise. It may also be clarified what kind of residential building plan is sanctioned for concerned area, Set backs, 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 Himachal Pradesh on 11th November, 2004, the text of which reads thus: “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 13 due consideration some embargo may have to be placed by notifying certain area surrounding the Retreat as ‘No Construction Zone’. Otherwise, the possibility of other such demands snowballing on the strength of the present precedent cannot be ruled out.” 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 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. 14 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 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. The Committee comprising of the Chief Secretary (Himachal Pradesh) and the Director General of Police, Himachal Pradesh rejected the representation made by the petitioner on 16.11.2004. The operative portion of order dated 16.11.2004 reads thus: “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. 15 Based on what has been stated above, we reject the request of the representationists who may be informed accordingly.” The petitioner was informed by the Chairman-Special Area Development Authority, Kufri Special Area on 30th November, 2004 that his case for planning permission for raising bungalow was rejected. The petitioner approached this Court by way of present petition assailing specifically order dated 16.11.2004. The respondents have filed replies to the petition and the petitioner has also filed rejoinder to the same. The Court in a similar case i.e. CWP No. 87/2007 had directed the respondents whether the land of the petitioner and similarly situate persons could be acquired or not. The State 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,