IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 412 of 2007 along with RSA No. 413/2007 Date of Decision : April 22, 2008 RSA No. 412 of 2007 & RSA No. 413 of 2007 M. L. Kaushal, …Appellant Versus: H. P. Housing Board …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ramakant Sharma, Advocate. For the respondent: Mr. Chandernarayan Singh, Advocate. Sanjay Karol, J. (Oral) Plaintiff’s (respondent herein) Civil Suit No. 80/1 of 2004/2002 titled as H.P. Housing & Urban Development Authority v. M. L. Kaushal was partly decreed in terms of judgment and decree dated 29.4.2006 passed by the Civil Judge (Jr. Div.), Solan, H.P. Aggrieved by the same, both the parties filed appeals which were registered as Case No. 35FTC/13 of 2006 titled as H.P. Housing & Urban Development Authority v. M. L. Kaushal and Case No. 16FTC/13 of 2006 titled as M. L. Kaushal 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 vs. H.P. Housing & Urban Development Authority. Both the appeals were heard together and disposed of by a common judgment dated 16.6.2007 by the Additional District Judge (Presiding Officer) Fast Track Court, Solan, H.P. The operative portion of the judgment is reproduced as under:- “In view of my findings on the points above, the appeal filed by the defendant is dismissed. However, the appeal filed by the plaintiff is allowed. The judgment and decree dated 29.4.2006 passed by the learned trial Court is modified and the suit of the plaintiff is decreed as under:- (i) A decree for permanent injunction restraining the defendant from raising any further construction and doing anything further so as to complete and regularize illegal and unauthorized construction raised in plot in question No.HIG-II-2 situated in housing board colony Saproon is hereby passed in favour of the plaintiff and against the defendant. (ii) A decree for mandatory injunction directing the defendant to demolish and dismantle the unauthorized construction raised in plot No.HIG-II-2 shown in site plan Ex.PW1/G attached with the plaint within a period of four months from the date of this judgment is also passed in favour of the plaintiff and against the defendant failing which the plaintiff shall be entitled to get the unauthorized construction demolished by way of execution of the decree. The parties are left to bear their own costs.” 3 Aggrieved by the same, the present appellant has filed the present appeals. During the pendency of the present appeals on 28.9.2007, the following order was passed:- “The appellant is present in the Court and the learned counsel for the respondent has received instructions from the Chief Executive Officer of the respondent. Under instructions from their respective clients, it is stated at the bar that the present appellant shall make an application for getting the alleged unauthorized construction measured and regularized in accordance with law. For the said purpose, the parties shall get the premises jointly inspected on 5th October, 2007 and take a decision within three weeks, keeping in view the safety of the building. Learned counsel for the appellant submits at the bar that the lintel raised by the appellant is only to give support to the retaining wall constructed by the respondent and there is no intention, whatsoever, of putting the same to any use. Learned counsel for the appellant undertakes that excess construction found after regularization shall be voluntarily demolished within eight weeks after the date of order to be passed by the respondent.” Pursuant to the said order, joint inspection was carried out and the unauthorized and uncompoundable construction was demolished by the present appellant. The respondent has also taken steps for regularization of the unauthorized/compoundable construction as permissible in law. 4 The dispute, however, has narrowed down with regard to 3 mtrs. of offset constructed by the plaintiff on all the floors. The appellant has placed on record the report of the Structures Designer (Registered) to the effect that the offset cannot be removed as the safety of the building and the road immediately above the building would be endangered. It is the stand of the respondent as is evident from the affidavit dated 16.4.2008 that the revised building plan for compounding/ regularization can be considered only after the aforesaid unauthorized construction is removed. The appellant has filed an affidavit by way of an undertaking to the effect that the said offset would never used by him for any purpose whatsoever and the same shall be used exclusively as a support to the building and the retaining wall as a safety measure. The said undertaking is taken on record. The affidavit and letters are also taken on record. It is not in dispute that if the offset is removed it would definitely endanger the building, the retaining wall as also the National Highway constructed thereupon. Keeping in view the peculiar facts and circumstances of the present case, the respondent is directed to consider the revised plan as such for approval. As agreed to by the learned counsel for the parties, the present order is passed in the peculiar facts and 5 circumstances of the present case and shall not be treated as a precedent in future. With the aforesaid observations, as agreed the present appeals are disposed of. Pending application, if any, also stands disposed of. ( Sanjay Karol ), Judge. April 22, 2008. (rana)