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2005 DIGILAW 270 (HP)

GOPAL MOHAN AGGARWAL v. STATE OF H. P.

2005-08-04

A.K.GOEL, V.K.GUPTA

body2005
JUDGMENT CMP Nos. 238 & 240 of 2005 : V.K.Gupta, C J.—These two applications, one by respondent No. 1 and the other by respondent No. 2 (Municipal Corporation, Shimla) have been filed in pursuance of the order dated 9.12.2004 passed by this Court. In that order this Court while granting to the petitioners the benefit of "deemed sanction" in terms of Section 247(1) of the Himachal Pradesh Municipal Corporation Act, 1994 read with Section 31(5) of Himachal Pradesh Town and Country Planning Act, 1977 had reserved to the respondents the liberty to approach this Court with a request for vacation or modification of the aforesaid order if the respondents felt or thought that such vacation/ modification was warranted or called for, based on such facts as they might bring to the notice of this Court. 2. In the aforesaid order dated 9.12.2004 this Court, by taking note of Section 247(1) of 1994 Act and Section 31(5) of 1977 Act and by noticing the factual matrix, particularly the fact that the petitioners had submitted the building plan on 27.2.2004 (which had been forwarded by the Municipal Corporation to the Government on 17.3.2004) for the construction of the building in question and admittedly till the date of the passing of the aforesaid order on 9.12.2004 the petitioners had not been conveyed either the sanction or the refusal to sanction, had come to hold that the deemed sanction came into operation which entitled the petitioners to start raising the construction in question. It is undisputed case of the parties that pursuant to the coming into force of the deemed sanction in terms of Section 247 (1) of 1994 Act, petitioners had also served a valid notice under sub-section (4) of Section 247 of the said Act with respect to its intention to start the construction. 3. Even though in our order dated 9.12.2004 we had very clearly observed that the petitioners shall be considered to have been granted deemed sanction and accordingly would be at liberty to proceed with the construction work, we had also in the same breath observed and directed that the construction work that the petitioners undertake shall be strictly in accordance with and on basis of the building plan as had been submitted by the petitioners to the Municipal Corporation, Shimla which had been forwarded by the Municipal Corporation to the State Government. Not only this, we had also observed and directed that in terms of subsection (2) of Section 247 of 1994 Act, the petitioners shall be bound to undertake the construction work not only in accordance with the building plan which they had submitted but also they shall not contravene any provision of 1994 Act or 1977 Act or any other law, or any bye-law made under any law. 4. Through the medium of the aforesaid two applications, in the light of the aforesaid order dated 9.12.2004, the respondents have prayed for the vacation/modification of the aforesaid order only on one main ground. This main ground is that despite the deemed sanction having come into being, since the petitioners did not act in terms of bye-law No. 9.1 of Municipal Corporation Shimla Building Bye Laws, 1998, the petitioners cannot be permitted to raise or go ahead with the construction work. Bye-law 9.1 reads thus : "9.1. The Commissioner may either sanction or refuse the plans and specification or may sanction them with such modifications or directions as it may deem necessary and there upon shall communicate his decision to the person giving the notice. If within 60 days of the receipt of notice under 7.1 of bye-laws the Commissioner fails to intimate in writing to the person, who has given the notice, of its refusal or sanction or any intimation, the notice with its plans and statements shall be deemed to have been sanctioned provided the fact is immediately brought to the notice of the Commissioner in writing by the person who has given notice and having not received any intimation from the Commissioner within fifteen days of giving such written notice. Subject to the conditions mentioned in these bye-laws, nothing shall be construed to authorize any person to do anything in contravention or against the terms of lease or titles of the land or against any other regulations, bye-laws or ordinance operating on the site of the work." 5. The contention is that after the deemed sanction has come into existence, the petitioners were required to bring to the notice of the Commissioner in writing by giving a notice of 15 days and only after the petitioners had not received any intimation within 15 days, the petitioners could have started the construction work. The contention is that after the deemed sanction has come into existence, the petitioners were required to bring to the notice of the Commissioner in writing by giving a notice of 15 days and only after the petitioners had not received any intimation within 15 days, the petitioners could have started the construction work. The contention raised by the respondents relying upon the aforesaid bye-law 9.1 (supra) is devoid of any merit for two reasons. First and foremost, we find that bye-law 9.1 has not been framed as per the scheme of Section 395 of the 1994 Act Section 395 of 1994 Act empowers the Corporation to make bye-laws for all or any of the matters specified in Section 395. The opening part of Section 395 reads thus : "395. Subject to the provisions of this Act, the Corporation may in addition to any bye-laws which it is empowered to make under any other provisions of this Act make bye-laws to provide for all or any of the following matters, namely:— Part D of Section 395 concerns the bye-laws relating to buildings. Part D has 23 clauses. We have very carefully gone through the aforesaid 23 clauses of Part D of Section 395 and find that in none of these clauses is it anywhere provided that a bye-law can be made with respect to serving any fresh notice of any duration after the deemed sanction has come into being in terms of Section 247(1) of 1994 Act. Actually the legislative intent has clearly been manifested in Section 247(1), it being that once the deemed sanction comes into being the beneficiary of such deemed sanction has a right to raise construction subject only to the prohibitions and restrictions contained in sub-sections (3) and (4) thereof. In the face of this right having accrued in favour of a beneficiary, it cannot be diluted or taken away unless the plenary enactment itself provides for any such further limitation. In the absence of any enabling provision thereof in Section 395, bye-law 9.1 cannot be said to be in conformity with Section 395 or any other provision of 1994 Act. In the absence of any enabling provision thereof in Section 395, bye-law 9.1 cannot be said to be in conformity with Section 395 or any other provision of 1994 Act. That being the situation therefore we have no manner of doubt that there was no requirement in law, over and above those contained in sub-sections (1), (3) and (4) of Section 247 of 1994 Act for the petitioners to have served any other, further or additional notice upon the Commissioner. Actually we go as far as to hold that Bye-law 9.1 is ultra vires Section 395 of 1994 Act. 6. Mr. M.S. Chandel, learned Advocate General submits that since the building falls in the heritage zone as per notification dated 5.6.2003 the petitioners were required to submit their plans strictly in accordance with the regulations applicable and therefore the petitioners were not entitled to raise construction beyond two storeys, unless specifically permitted. This argument also is devoid of any merit because Section 247 in so far as the benefit of deemed sanction is concerned does not draw any distinction between a heritage zone or any other zone. Similar is the case with Section 31 of 1977 Act. This legal aspect apart, the parties are strongly at variance about the fact whether the area in question falls in the heritage zone or not. There is dispute between the parties about this factual aspect whereas the respondents aver that the area in question falls in the heritage zone, the petitioners7 contention is that it is in the restricted zone. 7. No other point was urged. 8. Both the applications are accordingly dismissed. 9. Copy dasti, as prayed. CMP Nos. 239 & 1501 of 2005 10. In view of the order passed in the aforesaid two applications, these applications have become infructuous and are disposed of. Petition disposed of.