Compassionate Empathy Should Be A Trait Of Public Servants; They Are Engaged For Public Service & Not To Rule Over Them: P&H High Court

The Bench of Justice Anil Kshetarpal observed thus while setting aside the order of the Municipal Committee and affirmed by the Deputy Commissioner, Mewat at Nuh, sealing the property/building.

The Bench also observed,

"The persons holding such offices are required to be more sympathetic and compassionate while dealing with downtrodden and uneducated persons. The laws except the penal are enacted to regulate the ordinarily development of the society…The public servants are engaged for the service of the public and not to rule over them."

The matter

The petitioner is in possession of a small building (located in Tauru, District Mewat) and he constructed shops in front and is residing in the rear portion.

It was his case that since level of the road, passing in front of the building, had been increased/elevated, therefore, rainy/dirty water started flowing in the premises. On account thereof, the building also developed certain cracks.

He submitted two applications to Municipal Committee, Tauru, for permission to reconstruct the shop and the house. The officials of the Municipal Committee inspected the building; however, no response was received. When no action was taken by the Committee, he started reconstruction.

Further, the Municipal Committee sent him a notice on 27^th March 2018 directing him to stop the construction and demolish whatever construction has already been carried out.

He informed the Municipal Committee that he already applied for permission to construct vide applications dated 05^th September 2017 & 21^st November 2017; however, the Municipal Committee still did not take steps to process the application for sanction of the building plan.

Thereafter, vide communicated dated 30^th March 2018, he once again requested the officials of the Municipal Committee, that rainy as well dirty water of the locality flows in his house and therefore, he is compelled to increase the level of his constructed area.

The Secretary of the Municipal Committee wrote a letter after a period of 4 months to the effect that the construction of the road is the job of the Public Works Department (Building and Roads) and the Municipal Committee does not give any verbal orders.

The petitioner, thereafter, submitted a building plan pointing out that since the administration had elevated the level of the road and the street, therefore his building was now at a level lower than the street and the road and hence, he suffered a loss of Rs.5,00,000/-.

On 04^th September 2018 the building plan submitted by the petitioner was rejected on two grounds. First, the building plan had been filed without deposit of the required fee and secondly the petitioner had failed to provide evidence of ownership.

On 19^th September 2018, the petitioner once again submitted the building plan to Municipal Committee for approval.

However, the Secretary of the Municipal Committee wrote back that the office was not satisfied with various communications received from him and the documents attached are not readable, therefore, the application was rejected and the Municipal Committee proposed to take steps in accordance with Section 208 of the 1973 Act. Thereafter, his premises was sealed.

The petitioner filed an appeal before the Deputy Commissioner, Nuh against the order by which his premises was sealed.

The Deputy Commissioner dismissed the appeal with the finding that the petitioner had constructed the building without getting the building plan sanctioned and since the petitioner could not produce evidence regarding his ownership, therefore, there is no error in the order.

Court's order

The Court noted that Section 203A of the Haryana Municipal Act, 1973 had been inserted enabling the State government to regularize the building, whether constructed with or without sanction of the Municipal Committee in public interest.

The Court also noted that the entire emphasise of the legislature is to encourage the residents to erect the buildings after getting the building plan sanctioned and if some building has been erected or re-erected in violation thereof and such construction is found within the permissible limits, then the construction should be regularised or the violation should be compounded.

While noting that some construction was carried out without sanction of the building plan, the Court said,

"In such situation, it was expected of the officials to have a compassionate view of the matter."

The Court further said,

"However, it is not the case of the respondent that such building could not be constructed or is beyond the permissible limits. It is also not the case that the building has been constructed beyond floor area ratio. In such situation, the manner in which his various applications submitted by him have been dealt with, leaves much to desire. It is not expected of public officials to act in such a manner."

Hence, the Court said that the order passed by the Municipal Committee and affirmed by the Deputy Commissioner, Mewat at Nuh, sealing the property were undoubtably arbitrary exercise of power.

The Court said,

"It is not the case of the Municipal Committee that the petitioner in spite of having been issued notice, did not apply for sanction of the building plan. In fact, the petitioner applied before starting construction. It was the officials of the Municipal Committee, who sat over the file and did not respond in time."

Keeping in view the aforesaid facts, the writ petition is allowed. The order of sealing of the building was set aside.

The Court also ordered judgment be forwarded to the Deputy Commissioner, Nuh at Mewat, "with a hope that he would take some steps to sensitize the concerned officials of the Municipal Committees within his jurisdiction."

Case title - Devender Kumar v. State of Haryana and others [Civil Writ Petition No.36932 of 2019(O&M)]

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