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2001 DIGILAW 35 (HP)

R. S. SANTOSHI v. STATE OF H. P.

2001-03-14

K.C.SOOD, KAMLESH SHARMA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner has, inter alia, prayed for the following reliefs : "(a) quash the orders Annexures P-13 and P-16; (b) direct the respondents to reconsider and allow the application for revalidation and extension of the previous sanetioned plans Annexures-Pl and P2 and grant extension in accordance with law; (c) direct the respondents to grant necessary sanction under the deeming provisions of the H.P. Municipal Corporation Act." 2. By impugned order dated 24.3.1999 (Annexure P-13) the Municipal Corporation, Shimla, asked the general power of attorney of the petitioner to submit revised plan of two dwelling units in accordance with Municipal Building Bye-Laws. This was in reply to the request of the petitioner for revising/revalidating the plan of the house of the petitioner which was earlier sanctioned on 27.4.1994. The other impugned order is dated 6.3.2000 passed by Financial Commissioner-cum-Secretary (Urban Development) Government of Himachal Pradesh (Annexure P-16), whereby the revision petition against the impugned order dated 24.3.1999 was rejected. 3. The case of the petitioner is that permission for the development of the plot comprised in khasra No. 862/888/10 in Mauza Station Ward, Shimla, Tehsil and District Shimla, was granted in his favour by Director, Town and Country Planning Department en 26.10.1993 (Annexure P-l). Thereafter, the permission for construction was granted by Municipal Corporation, Shimla, on 27.4.1994 (Annexure P-2). Accordingly, the petitioner made development of his plot for the purpose of establishment of printing press but when Town and Country Planning Department refused to grant approval for setting up the industrial unit on the ground that the plot in question is situated in the area ear-marked for residential purposes, the petitioner applied for change of the user of the land which was granted in his favour by the Government on 8.2.1995 (Annexure P-3) and he was permitted to use his plot for residential purposes. However, the petitioner had started construction of his building and sent requisite information thereof to the Municipal Corporation on 11.10.1994 (Annexure P-6). 4. However, the petitioner had started construction of his building and sent requisite information thereof to the Municipal Corporation on 11.10.1994 (Annexure P-6). 4. The permission granted for the purchase of the plot under Section 118 of the H.P. Tenancy and Land Reforms Act (hereinafter called the Act), was assailed by one Shri Amin Chand Chauhan in-CWP No. 962 of 1994, which was disposed of on 21,2.1995 (Annexure P-7) expressing the hope that the notice to show cause under Section 118(1) of the Act issued to the petitioner, who was respondent No. 5 in the said petition, would be dealt with in an expeditious manner and action would be finalised in accordance with law. Thereafter, the competent authority, i.e. the Collector, Shimla, by his order dated 7.3.1995 (Annexure P-9) dropped the proceedings and discharges the notice to show cause issued to the petitioner by taking into consideration the permission dated 8.2.1995 granted in favour of the petitioner for the change of user of the building in question from commercial to residential purpose. 5. Against the order dated 7.3.1995 dropping the proceedings under Section 118 of the Act and also the order dated 8.2.1995 granting permission to change user of the land and the orders grain ting permission for development of the plot and construction of building another writ petition No. CWP 254 of 1995 was filed by Mohinder Chauhan and others. In this writ petition interim stay was granted by order dated 12.4.1995 (Annexure P-10) directing the petitioner and his general power of attorney to maintain status quo as on that date in respect of the construction over the land in question. The writ petition was ultimately dismissed by judgment dated 18.9.1998 reported in AIR 1999 HP 43 (Annexure P-l I) upholding the permission granted in favour of the petitioner for the change of user. It was thereafter that petitioner applied to Municipal Corporation, Shimla on 30.10.1998 (Annexure P-12) for renewal/revalidation of the sanctioned plan of his house as the permission of two years for completion of the construction vide order dated 27.4.1994 (Annexure P-2) stood lapsed. In reply to this request Municipal Corporation, Shimla asked the general attorney of the petitioner to submit modified plan for two dwelling units under the Municipal Building By-Laws. In reply to this request Municipal Corporation, Shimla asked the general attorney of the petitioner to submit modified plan for two dwelling units under the Municipal Building By-Laws. Feeling aggrieved the petitioner filed revision petition before the Secretary (Local Self-Government) which was also rejected by order dated 6.3.2000 holding that there is no infirmity or illegality in the order impugned before him which was passed by the Municipal Corporation as per Bye-Law 41.10 of Shimla. Municipal Corporation Building Bye-Laws, 1998. Hence the present writ petition. 6. Municipal Corporation, Shimlar has filed its reply on the affidavit of its Commissioner which has been adopted by State of Himachal Pradesh-respondent No. 1 and no separate-reply has been filed on its behalf. It is admitted in the reply-affidavit that building plan of the petitioner was sanctioned on 27.4.1994 in pursuance to which the petitioner had also started construction and intimation in this regard sent vide letter dated 11.10.1994 (Annexure P-6) was duly received in its office. However, it is denied that any revised plan was received alongwith the application dated 30.10.1998 for revalidation/renewal of the sanction. The stand of the Municipal Corporation is that since the petitioner failed to apply for extension within the period of two years specified to him in the initial sanction he was required to apply afresh under Clause 41.10 of the new Building Bye-Laws notified vide notification dated 17.3.1998. It is further stated that the impugned order is legal and valid having been passed under the provisions of H.P. Municipal Corporation Act and its Building Bye-Laws in vogue. It is admitted that as a result of stay orders granted against the petitioner he was stopped from making construction but it is denied that the original sanction dated 27.4.1994 stood automatically revalidated/extended from the date of sanction, as a result of stay orders. 7. The petitioner has also filed rejoinder-affidavit to the reply-affidavit reiterating averments made in the petition and denying contrary stated in the reply-affidavit. It is further added that the petitioner had started construction in pursuance to original sanction and had spent Rs. 5 lacs on raising foundations for four storeys as per the plan originally sanctioned by the Municipal Corporation, as such, the floor area or the number of storeys cannot be reduced. It is further added that the petitioner had started construction in pursuance to original sanction and had spent Rs. 5 lacs on raising foundations for four storeys as per the plan originally sanctioned by the Municipal Corporation, as such, the floor area or the number of storeys cannot be reduced. It is also submitted that the case of the petitioner will be governed by the Bye-Laws existing at the time the original sanction was granted in his favour and new Bye-Laws notified vide notification dated 17.3.1998 are not applicable as these are not enforced retrospectively. It is also alleged that the clause 41.10 of the new Bye-Laws has not been enforced by the Municipal Corporation in number of other cases and the petitioner has been discriminated against in this regard. It is reiterated. that Shimla, Municipal Corporation was not right in directing the petitioner to submit revised plan without either accepting or rejecting his prayer for renewal/revalidation of his original plan. 8. We have heard learned Counsel for the parties and gone through the record. 9. It is not in dispute that the building plan of the petitioner was sanctioned as far back as on 27.4.1994 and he had also started construction but could not complete it within the period of two years specified in the sanction because of the stay orders granted in the litigation started against him. With the decision of CWP No. 254 of 1995 dated 18.9.1998 the stay order stood vacated and thereafter the petitioner filed application for renewal/revalidation of his sanction on 30.10.1998 (Annexure P-12). The stand taken by the Municipal Corporation that since the petitioner has failed to apply for renewal/ extension within specified period of two years he is required to make fresh application for sanction, as provided under clause 41.10 of new Bye-Laws, is not sustainable. The stand taken by the Municipal Corporation that since the petitioner has failed to apply for renewal/ extension within specified period of two years he is required to make fresh application for sanction, as provided under clause 41.10 of new Bye-Laws, is not sustainable. Section 251 of HP Municipal Corporation Act, 1994 provides period for completion of building or work, which reads as under : "The Commissioner when sanctioning the erection of a building or execution of a work, shall specify a reasonable period after the commencement of the building or work within which the building or work is to be completed and if the building or work is not completed within the period so specified it shall not be continued thereafter without fresh sanction obtained in the manner hereinbefore provided, unless the commissioner on application made, therefore, has allowed an extension of that period." 10. The perusal of this section makes it clear that there is no fixed period either for starting construction or completing it after the plan is sanctioned. The Commissioner while sanctioning the plan specifies a reasonable period for completing the construction. If the construction is not completed within the period specified by the Commissioner he may extend the period on application or fresh sanction is required to be obtained in the manner provided under the Municipal Act. 11. In the present case the petitioner did apply for the extension vide his leter dated 30.10.1998, but instead of either accepting or rejecting it he was asked to submit his revised/modified plan with two dwelling units as per Municipal Building Bye-Laws. This order has been affirmed in revision by the Financial Commissioner-cum-Secretary (U.D.) Government of Himachal Pradesh, by impugned order on the ground that under Clause 41.10 of new Bye-Laws the petitioner cannot be permitted to raise four storeys with total of 16 dwelling units. Clause 41.10 of new Bye-Laws is as under: "Not more than one dwelling unit per floor will be allowed in residential building constructed in plots having an area upto 250 sq.m. For plots measuring over 250 sq.mt. one additional dwelling unit may be allowed and thereafter for every 100 sq.mt. additional area of the plot additional dwelling unit may be considered." 12. New Bye-Laws came into force on 17.3.1998 from the date of publication in the Rajpatra, Himachal Pradesh, as provided under Clause 1.2. Admittedly, it has not been made applicable retrospectively. one additional dwelling unit may be allowed and thereafter for every 100 sq.mt. additional area of the plot additional dwelling unit may be considered." 12. New Bye-Laws came into force on 17.3.1998 from the date of publication in the Rajpatra, Himachal Pradesh, as provided under Clause 1.2. Admittedly, it has not been made applicable retrospectively. Repeal and saving is provided under Clause 46 of these Bye-Laws, which clearly lays down that any building plan sanctioned or approved prior to the commencement of these Bye-Laws and any application in relation thereto shall be disposed of in accordance with provisions of Bye-Laws of 1975, as if the said Bye-Laws have continued to be in force and the new Bye-Laws had not been framed. Clause 46 is as under : "46. Repeal and Saving : (1) The Shimla Municipal Corporation Building Bye-laws of 1975 are hereby repealed. (2) Notwithstanding repeal of Building Bye-Laws under this Bye-laws, any order, registration, licence, certificate, notice, decision, sanction, approval, authorised, or consent made, issued or given under such Bye-laws shall continue to be in force and have effect as if it were made, issued or given under corresponding provisions of these Bye-laws; and every building plan sanctioned or approved prior to the commencement of these Bye-laws and any application In relation thereto shall be disposed of in accordance with the provisions of the said Bye-laws, as if the said Bye-laws had continued to be inforced and these Bye-laws had not been framed." 13. Therefore, the stand of Municipal Corporation, Shimla, which has been upheld in the impugned order by Financial Commissioner-cum-Secretary (UD) to the Government of Himachal Pradesh that the petitioner is to apply afresh under Clause 41.10 of the new Bye-Laws, is not tenable. The Commissioner, Municipal Corporation, Shimla was required to consider the application (Annexure P-12) for extension of time filed by the petitioner on 30.10.1998 under the Building Bye-laws of 1975. It cannot be lost sight of that in view of the stay orders operating against the petitioner it was not possible for him to complete construction within a period of two years specified by the Commissioner in his original sanction order. It cannot be lost sight of that in view of the stay orders operating against the petitioner it was not possible for him to complete construction within a period of two years specified by the Commissioner in his original sanction order. Instead of considering his case for extension of time in the peculiar facts and circumstances that the petitioner could not complete the construction due to the stay orders operating against him, the Municipal Corporation, Shimla has asked him to submit fresh plan under the new Bye-Laws, which amounts to penalising him for the default which is not committed by him, as ultimately the litigation had ended and stay order stood vacated in his favour. In this view of the matter, there is no force in the submission made by the learned Counsel for the Municipal Corporation that the petitioner was to apply for the extension before the expiry of two years specified in the original sanction letter. Had he applied, his application would have remained pending in view of the stay order. From the facts on record it is clear that the litigation remained pending from 1994 to 18.9.1998, during which period the stay order remained operative and he had applied for renewal/ revalidation of original plan or extension of time within a reasonable period of about 1-1/2 months after the dismissal of CWP No. 254 of 1995 and vacation of stay order. The result of above discussion is that there is merit in this writ petition and it is allowed and the impugned orders Annexures P-13 and P-16 are set aside and the Commissioner, Municipal Corporation, Shimla is directed to consider the application (Annexure P-12) of the petitioner for renewal/revalidation of his original sanction dated 27.4.1994 under the Building Bye-Laws of 1975 or for extension of time for completing construction in accordance with law and in the light of observations made hereinabove within a period of six weeks from the date of this judgment. There is no order as to costs. Petition allowed.