Full Judgment Text
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CASE NO.:
Appeal (civil) 2525 of 2007
PETITIONER:
Commissioner of Municipal Corporation, Shimla
RESPONDENT:
Prem Lata Sood and Others
DATE OF JUDGMENT: 15/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2525 OF 2007
[Arising out S.L.P. (Civil) No. 3292 of 2006]
S.B. SINHA, J :
1. Leave granted.
2. This appeal is directed against the judgment and order dated
16.08.2005 passed by a Division Bench of the High Court of Himachal
Pradesh at Shimla, whereby and whereunder the writ petition filed by
Respondent Nos. 1 to 5 herein, praying, inter alia, :
"i) That the respondents may be directed to accord
necessary planning permission to the petitioners
for construction of hotel pursuant to Annexures \026
PA, PB, PC & PG in a time bound schedule;
ii) That the impugned Annexures \026 PD, PE, PF &
PH, dated 24.3.1998, 1.9.1999, 6.6.2000 &
8.2.2002 respectively may be quashed and set
aside";
was allowed.
3. The State of Himachal Pradesh enacted ’The Himachal Pradesh Town
and Country Planning Act, 1977’ (for short, ’the 1977 Act’) to make
provisions for planning and development as well as use of land; to make
better provision for the preparation of development plans and sectoral plans
with a view to ensuring that town planning schemes are made in a proper
manner and their execution is made effective to constitute the Town and
Country Development Authority for proper implementation of town and
country development plan, to provide for the development and
administration of special areas through the Special Area Development
Authority to make provisions for the compulsory acquisition of land
required for the purpose of the development plans and for purposes
connected with the matter aforesaid.
4. ’Development’ has been defined in Section 2(g) of the 1977 Act to
mean :
"development" with its grammatical variations means the
carrying out of a building, engineering, mining or other
operations in, on, over or under land, or the making of
any material change in any building or land, or in the use
of either, and includes sub-division of any land;"
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’Planning area’ has been defined in Section 2(o) of the 1977 Act to
mean :
"planning area" means any area declared to be planning
area under this Act;"
5. Section 3 of the 1977 Act provides for appointment of a Director or
other officers for the purpose of carrying out the functions under the
provisions of the said Act. Section 10 of the said Act provides for restriction
on use of land or development thereof, sub-section (3) whereof reads as
under :
"(3) If any work is carried out in contravention of the
provisions of this section, the Municipal Corporation or
Municipal Committee within its such local area, and the
Collector in area outside such local areas may cause such
work to be removed or demolished at the cost of the
defaulter, which shall be recovered from him in the same
manner as an arrear of land revenue."
6. Section 14 of the 1977 Act provides for preparation of development
plans by the Director. Section 17 provides for interim development plans,
pursuant to or in furtherance whereof the interim development for the
planning area has been made to which reference shall be made at an
appropriate place.
7. In terms of the said provisions, an interim development plan is to be
made after consultation with the local authority concerned. Sub-section (5)
of Section 17 mandates the State Government to publish the interim
development plan in the official gazette.
8. Chapter VI of the 1977 Act provides for control of development and
use of land. Section 25 thereof reads as under :
"25. The overall control of development and the use of
land in the planning area shall, as from the date of
publication in the official Gazette of a notification by the
State Government, vest in the Director."
9. Section 30 of the 1977 Act provides for an application for permission
for development by a person other than Union Government, State
Government, a local authority or a special authority constituted thereunder.
An application therefor is required to be filed in the office of the Director.
Section 31 provides for the mode and manner in which such application
shall be governed, inter alia, stating :
"(5) If the Director does not communicate his decision
whether to grant or refuse permission to the applicant
within two months from the date of receipt of his
application, such permission shall be deemed to have
been granted to the applicant on the date immediately
following the date of expiry of two months.
10. Chapter IX provides for control. Section 76 of the 1977 Act provides
for a non-obstante clause in terms whereof the Government is empowered to
review plans etc. for ensuring conformity, in the following terms :
"76. Notwithstanding anything contained in any other
enactment for the time being in force, the State
Government may, with a view to ascertaining that no
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repugnancy exists or arises with the provisions of this
Act or the rules made thereunder, review the town
improvement schemes, building plans or any permission
for construction sanctioned or given by any authority
under development plans, sanctioned under any
enactment for the time being in force and may revoke,
vary, or modify any scheme, plan, permission or sanction
in conformity with the provisions of this Act :
Provided that no order under this section shall be
made without giving a reasonable opportunity of being
heard to the persons affected thereby."
11. The said Act, thus, provides for an overall policy to be taken by the
authority as well the State Government.
12. The State of Himachal Pradesh also enacted the ’Himachal Pradesh
Municipal Corporation Act, 1994’ (for short, ’the 1994 Act’). A municipal
corporation constituted under the said provisions is a local authority within
the meaning of the provisions of the 1977 Act.
13. Section 243 of the 1994 Act provides that every person who intends to
erect a building shall apply for sanction by giving notice in writing of his
intention to the Commissioner in such form and containing such information
as may be prescribed by the bye-laws made in that behalf. Despite the fact
that the 1977 Act provides for filing of an application for a development
plan, when an interim development plan has been made, the 1994 Act also
provides for sanction of a building plan, if a person intends to execute any of
the works specified under Section 244 of the 1994 Act. The said provision
lays down that every person who intends to execute any of the works
specified therein shall apply for sanction by giving notice in writing of his
intention to the Commissioner in such form and containing such information
as may be prescribed by the bye-laws made in that behalf. Section 245 of
the 1994 Act provides for issuance of a notice wherein the purpose for which
it was intended to use the building is required to be specified in the
following terms :
"245.(1) A person giving the notice required by
section 243 shall specify the purpose for which it is
intended to use the building to which such notice relates
and a person giving the notice required by section 244
shall specify whether the purpose for which the building
is being used is proposed or likely to be changed by the
execution of the proposed work.
(2) No notice shall be valid until the
information required under sub-section (1) and any
further information and plans which may be required by
bye-laws made in this behalf have been furnished to the
satisfaction of the Commissioner along with the notice."
14. Section 246 which provides for the power of the Commissioner to
grant or refuse to grant such sanction, which is relevant for our purpose,
reads as under :
"246(1).- The Commissioner shall sanction the erection
of a building or the execution of a work unless such
building or work would contravene any of the provisions
of sub-section (2) of this section or the provisions of
section 250.
(2) The grounds on which the sanction of a
building or work may be refused shall be the following,
namely :-
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(a) that the building or work, or the use of the
site for the building or work or any of the particulars
comprised in the site plan, ground plan, elevation,
section or specification would contravene the provisions
of any bye-law made in this behalf or of any other law or
rule, bye-law or order made under such other law;
(b) that notice for sanction does not contain the
particulars or is not prepared in the manner required
under the bye-laws made thereunder has or have not been
duly furnished;
(c) that any information or documents required by
the Commissioner under this Act or any bye-laws made
thereunder has or have not been duly furnished;
(d) that in cases falling under section 222 lay out
plans have not been sanctioned in accordance with
section 223;
(e) that the building or work would be an
encroachment on Government land or land vested in the
Corporation;
(f) that the site of the building or work does not
abut on a street or projected street and that there is no
access to such building or work from any such street by a
passage or pathway appertaining to such site;
(g) that the building or work would be in
contravention of any scheme sanctioned under section
260; and
(h) that a building for habitation, does not provide
for a flush or a water seal latrine.
(3) The Commissioner shall communicate the
sanction to the person who has given the notice; and
where he refuses sanction on any of the grounds specified
in sub-section (2) of this section or under section 250 he
shall record a brief statement of his reasons for such
refusal and communicate the refusal alongwith the
reasons therefor to the person who has given the notice.
(4) The sanction or refusal as aforesaid shall be
communicated in such manner as may be specified in the
bye-laws made in this behalf."
15. Section 247 of the 1994 Act provides for a deeming provision in the
following terms :
"247.(1) Where within a period of sixty days after
the receipt of any notice under section 243 or section 244
or of the further information, if any, required under
section 245 the Commissioner does not refuse to sanction
the building or work or upon refusal does not
communicate the refusal to the person who has given the
notice, the Commissioner shall be deemed to have
accorded sanction to the building or work and person by
whom the notice has been given shall be free to
commence and proceed with the building or work in
accordance with his intention as expressed in the notice
and the documents and plans accompanying the same :
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Provided that if it appears to the Commissioner
that the site of the proposed building or work is likely to
be affected by any scheme of acquisition of land for any
public purpose or by any proposed regular line of a
public street or extension, improvement, widening or
alteration of any street, the Commissioner may withheld
sanction of the building or work for such period not
exceeding sixty days as he deems fit and the period of
sixty says shall be deemed to commence from the date of
the expiry of the period for which the sanction has been
withheld.
(2) Where a building or work is sanctioned or
deemed to have been sanctioned by the Commissioner
under sub-section (1), the person who has given the
notice shall be bound to erect the building or execute the
work in accordance with such sanction but not so as to
contravene any of the provisions of this Act or any other
law or of any bye-law made thereunder.
(3) If the person or any one lawfully claiming
under him does not commence the erection of the
building or the execution of the work within one year of
the date on which the building or work is sanctioned or is
deemed to have been sanctioned, he shall have to give
notice under section 244, or, as the case, may be, under
section 243 for fresh sanction of the building or the work
and the provisions of this section shall apply in relation
to such notice as they apply in relation to the original
notice.
(4) Before commencing the erection of a
building or execution of a work within the period
specified in sub-section (3), the person concerned shall
give notice to the Commissioner of the proposed date of
the commencement of the erection of the building or the
execution of the work.
Provided that if the commencement does not take
place within seven days of the date so notified, the notice
shall be deemed not to have been given and a fresh notice
shall be necessary in this behalf.
(5) Where the building plan is sanctioned or
deemed to have been sanctioned, the person, at whose
instance building operations are to be carried on, shall,
after the excavation of the foundation and before starting
construction thereon, intimate the Corporation about the
excavation of the foundation.
(6) For the purpose of ascertaining, whether the
strata of the land, over which a building is to be erected is
geologically fit, and the building operation thereon can
be carried out in accordance with the sanctioned plan, the
Corporation may, within seven days from the intimation
under sub-section (5), cause inspection of excavated
foundation to be made by such persons as it may direct,
and in such manner as may be prescribed :
Provided that the person at whose instance the
building operations are carried out shall be associated in
the inspection.
(7) The persons making the inspection under
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sub-section (6), may communicate to the person, from
whom intimation under sub-section (5) has been
received, its views in regard to the result of such
inspection and may after ascertaining the opinion of the
said person, recommend to that person the action to be
taken as a result of such inspection and also report to the
Commissioner the action, if any, which is proposed to be
taken for the purposes of implementation of any such
recommendation.
(8) On the receipt of the report under sub-
section (7), the Corporation may, within seven days from
the date of intimation under sub-section (5), give such
direction to the person concerned, as it may deem fit."
16. We may, however, notice that a similar Act which was then
prevailing, namely, Himachal Pradesh Municipal Corporation Act, 1979 was
repealed.
17. Respondent No.1 to 5 herein (hereinafter referred to as ’the
respondents) intended to construct a hotel on the Mall Road in the town of
Shimla. They filed an application for grant of planning permission to the
Town and Country Planning Department on 27.06.1994. Such permission
was approved by the Government of Himachal Pradesh by an order dated
16.01.1998.
18. The Executive Engineer of Respondent No.6 herein granted
permission under sub-section (1) of Section 31 of the 1977 Act subject
inter alia, to the condition that building permission should be obtained from
the local authority concerned before commencement of the development.
19. An application for sanction of the building plan in terms of the
provisions of the 1994 Act and building bye-laws framed thereunder was
submitted by Respondent No.1 on 07.07.1999. The Municipal Corporation,
however, returned the said plans asking for certain clarifications. Such
clarifications evidently had been asked for by the appellant herein in terms
of Section 246 of the 1994 Act.
20. Respondents resubmitted the plans upon purported compliance of the
objections raised in the said letter dated 01.09.1999 only on 10.04.2000.
However, immediately thereafter a purported temporary freeze on
construction activities in some areas appertaining to Shimla Planning Area
was issued by the Government of Himachal Pradesh, stating :
"I am directed to say that it has been decided by
the Government that all development activities in banned
area of Shimla planning area are to be temporarily frozen
till the finalization of new guidelines to be framed by the
government for these area.
In view of the above decision of the government
on planning permission cases are to be approved or sent
to this department till further orders."
21. Respondents were informed thereabout by the appellant in terms of its
letter dated 06.06.2000, stating :
"Application for construction of house submitted
on 10.4.2000 by you. On receipt of report from various
departments, the case has been considered in which
proposed hotel on Khasra Nos. 315, 316, 317, 318, 321,
322, 320, 310, 311, 313, 312, 319 at Talpat Cottage,
Shimla Sanction has been asked for.
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Hence the map with the following observations has
not been considered for sanction :
1. Pucca burjirs have not been fixed at site.
2. The proposal shown with the cutting of earth more
than 3.00 M in both the blocks cannot be allowed
as per M.C. bye-laws.
3. The proposal for machine room structure is not as
per M.C. bye-law.
4. Report from ME has not been received.
5. Ground floor plan for upper Block should be
shown separately with the boundary lines.
6. The proposal falls in banned area. As per the
notification received from Govt. of H.P. vide their
letter No. PBW (B&R)(B) 24(1)91-1 dated
17.4.2000, the development activities in banned
area of Shimla planning area have been
temporarily frozen. As such the proposal cannot
be considered at this stage.
Hence the plan is rejected and returned herewith."
22. However, a question arose as to whether the temporary freeze of
development activities in the banned area of Shimla planning area was to
apply in relation to the cases where the building plans had already been
approved by the Government before the said date, wherefor permission had
been issued to the Commissioner, Municipal Corporation, in the following
terms :
"The temporary ban on development activities in
the Shimla Planning Area was imposed by the
Government on dated 17.04.2000. The building plans
approved by the Government before this date need not be
detained. Therefore, the building plan cases already
cleared by the Government/Cabinet may be processed
further in accordance with the Rules and Regulations."
23. Before, however, the Corporation could consider the Respondents’
application for grant of sanction of the said development plan in terms of the
1994 Act and/or building bye-laws framed thereunder, a notification was
issued by the State of Himachal Pradesh purported to be in terms of sub-
sections (4) and 5 of Section 17 of the 1977 Act, making further
amendments in the interim development plans which was published in the
gazette on 31.03.1979 and is to the following effect :
"(a) All Private as well as Government
construction are totally banned within the core area of
Shimla Planning Area. Only construction on old lines
shall be permitted in this area with the prior approval of
the State Government. The ’core area’ shall comprise of
the following :
’Central Shimla bounded by the circular road
starting from Victory Tunnel and ending at Victory
Tunnel via Chotta Shimla & Sanjauli and the area
bounded by Mall Road starting from Railway Board
Building to Ambedkar Chowk, covering Museum Hill by
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a road starting from Ambedkar Chowk on the north side,
joining the chowk of the Indian Institute of Advance
Studies and following the road joining Summer Hill post
office and via upper road to Boileauganj Chowk and then
joining the cart Road, along Cart Road to Victory Tunnel.
(b) No development, unless specifically
permitted by the State Government shall take place in the
restricted area which shall comprise of the following :
\005 \005. \005"
24. Yet again a notification was issued by the State of Himachal Pradesh
on or about 22.08.2000 whereby and whereunder, for the existing Regulation
10.4.2(x)(a), the following was substituted :
"10.4.2 (x)(a), CORE AREA : (i) New construction in
core area shall be allowed in respect of residential
buildings upto maximum two storeys and ancillary used
thereto with the prior permission of the State
Government.
Provided that in case of reconstruction of old
structured or building shall be permitted by the State
Government subject to the condition that the plinth area
and number of storeys on old lines shall remain the same
as were existing earlier."
25. Regulation 10.7 provided for a ’Heritage Zone’, relevant clauses
whereof read as under :
"10.7 HERITAZE ZONE :
(A) No development for reconstruction unless
specifically recommended by the Heritage Advisory
Committee and permitted by the State Government shall
take place in the Heritage Zone, which shall be
comprised of the following areas, namely :
(i) Viceregal lodge complex Complete;
(ii) One building depth on either side of the road
surrounding Viceregal lodge complex;
(iii) One building depth on either side of the
Mall road starting from the gate of Indian Institute of
Advance Studies upto Chhota Shimla Chowk via State
Bank of India, Scandal Point, Shimla Club and Oak
Over."
26. In view of the aforementioned amendments in the regulation declaring
’core area’ and ’heritage zone’ within which only the respondents had filed
their application for grant of sanction of the building plans, no order could
be passed by the appellant.
27. In view of the aforementioned notification, the application for
sanction of the building plans was ultimately rejected by the Corporation.
28. In the aforementioned premise Respondents filed a writ petition
before the High Court of Himachal Pradesh at Shimla, praying for the reliefs
which have been noticed hereinbefore. By reason of the impugned
judgment, a Division Bench of the said Court held that the purported
declaration in relation to the core area and heritage zone would not apply in
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the case of the writ-petitioners in view of the fact that the building plan
submitted by them before the Director in terms of the provisions of the 1977
Act had already been allowed, and, thus, the same had conferred a vested
right in them. It was hence directed :
"(a) The respondent No. 3 shall process the
resubmitted building plans furnished by the petitioners
uninfluenced by the notification of the Government dated
22.8.2002. Annexure R1/A and on the basis of the
building bye-laws as were prevalent at that time, i.e. on
17.4.2000 and shall pass the order within four weeks
from today.
(b) Needless to say, if any deficiency is found in
the resubmitted plans, on the basis of the bye-laws
prevalent on 17.4.2000, the petitioner shall remove such
deficiency within a week of being pointed out by the
Municipal Corporation and the Commissioner in turn
shall pass his orders within two weeks thereafter.
(c) In case the respondent No. 3 does not
comply with the aforesaid directions within the time
frame noticed above, the petitioners shall be at liberty to
carry out the construction as per their resubmitted plans
on 4.12.2000 in accordance with the bye-laws as in force
on 17.4.2000 after giving intimation to the
Commissioner, Municipal Corporation-respondent No.
3"
29. Appellant is, thus, before us challenging the aforesaid judgment.
30. Mr. Anil Nag, the learned counsel appearing on behalf of the
appellant, submitted that having regard to the aforementioned notifications
dated 11.08.2000 and 22.08.2000, the impugned judgment could not have
been passed by the High Court.
31. Mr. A.K. Ganguli, the learned Senior Counsel appearing on behalf of
the respondents, on the other hand, raised the following contentions :
i) Having regard to the purport and object of the 1977 Act, once a
building plan is sanctioned in terms thereof, the Municipal
Corporation is required to only supervise the construction
thereof in exercise of its functions under the 1994 Act.
ii) Being a local authority, a building plan by the State sanctioned
in terms of the 1977 Act would be binding on the appellant and,
thus, the same could not have rejected; the functions of the
appellants confined only to oversee construction of the
building;
iii) In view of the clarificatory circular issued by the State of
Himachal Pradesh on 25.07.2000, the building plan submitted
by the respondents having already been approved, the
Municipal Corporation was bound to act thereupon irrespective
of the effect of notification dated 10.04.2000.
iv) In any event, as the application for building plans was
submitted on 07.07.1999, in terms of the provisions contained
in Section 247of the 1994 Act, having regard to the fact that the
said application had neither been rejected nor accepted within a
period of sixty days therefrom, the sanction of the plan would
be deemed to have been granted.
v) In any view of the matter as during pendency of the writ
petition, the Municipal Corporation granted sanction in favour
of other applicants who were similarly situated, there is
absolutely no reason as to why the respondents should have
been discriminated against.
vi) Appellant being a local authority was bound to act fairly, which
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would mean that they should have exercised their jurisdiction
within a reasonable time and having not done so, it does not
now lie in their mouth to rely upon the subsequent notifications
issued by the State under Section 17 of the 1977 Act.
vii) Unnecessary delay was caused by the appellant-Corporation in
dealing with the respondents’ application for grant of sanction
for the building plans. Hence the original sanctioned plan was
only valid for a period of three years, the same should be held
to have been extended.
32. In our opinion, the 1977Act and the 1994 Act operate in different
fields and they are complementary and supplementary to each other. The
provisions of both the Acts can be worked out. There is no conflict between
the two Acts. The 1977 Act deals with laying down the broad policy. It
provides for preparation of development plans including the internal
development plans. Indisputably, such development plans when made
would be binding upon the local authority. It may, however, be not correct
to contend that despite the fact that the operation of the Acts cover two
different fields, namely, the 1977 Act deals with laying down the overall
policy matter and the 1994 Act deals with the grant of building plans in
terms of the provisions thereof by the Commissioner of the Municipal
Corporation; only because sanction for development in the Mall area of the
town of Shimla was granted by the State in terms of the 1977 Act, the same
would mean that the same was binding upon the Municipal Corporation or
that the provisions of the 1994 Act or the building bye-laws were not
required to be complied with at all.
33. We have noticed hereinbefore that even in the order of sanction
passed in favour of the respondents by the State, a condition was imposed
that before undertaking the development activities by way of erection of the
building, the respondents would take the requisite sanction from the
Municipal Corporation. Even if such a condition had not been imposed, the
provisions of the Municipal Corporation Act, as noticed hereinbefore, would
operate.
34. Section 243 of the 1994 Act clearly mandates that erection of a
building must precede grant of express sanction of a building plan. How and
in what manner the same is required to be dealt with is provided in Sections
244 and 245 of the 1994 Act. Clause (a) of sub-section (2) of Section 246 in
no uncertain terms restrict the power of the Appellant-Corporation to grant
sanction for erection, inter alia, for development of an area by way of
erection of a building or otherwise, not only if the same is not in conformity
with the building bye-laws, but also if it contravenes any other law or rules
operating in the field.
35. The 1977 Act is one of such Act. As noticed hereinbefore, the
provisions thereof are binding upon the local authority. Once the provisions
thereof are held to be binding, the law made by the State by way of
subordinate legislation in the form of the regulations and/or notifications
issued under sub-sections (4) and (5) of Section 17 of the 1977 Act would
also be binding. Indisputably, the Municipal Corporation would not have
any authority to grant any sanction in violation thereof.
36. Section 247 no doubt provides for a legal fiction specifying a period
of sixty days, within which the application for grant of sanction of a building
plan should be granted, but the said period evidently has been considered to
be providing for a reasonable period during which such application should
be disposed of. However, only because the period of sixty days has elapsed
from the date of filing of application, the same by itself would not attract the
legal fiction contained in Section 247 of the 1994 Act. When such an
application is attended to and the defects in the said building plans are
pointed out, there cannot be any doubt whatsoever that the applicant must
satisfactorily answer the queries and/or remedy the defects in the building
plans pointed out by the competent authority.
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37. The building plans for which sanction was prayed for by the
respondents, as noticed hereinbefore, had been attended to. The purported
defects were removed, as noticed hereinbefore only on 10.04.2000. Even
according to the appellant-Corporation all the defects were not removed
which had been pointed out by the appellant-Corporation in terms of its
letter dated 06.06.2000. In any event, as noticed hereinbefore, the State of
Himachal Pradesh imposed a temporary freeze on the development activities
in the Mall area by an order dated 17.04.2000. The said order was also
binding upon the appellant-Corporation and no permission could have been
granted in favour of the respondents in violation thereof. It is true, as has
been contended by Mr. Ganguli, that the said purported temporary freeze on
the construction activities imposed in terms of the notification dated
17.04.2000 came to be clarified by the State on or about 25.07.2000. But by
reason thereof, the State could not have directed the Municipal Corporation
to grant sanction, as a statutory authority must be permitted to perform its
statutory functions in respect whereof even any higher authority cannot issue
any direction. [See Commissioner of Police, Bombay v. Gordhandas Bhanji
AIR 1952 SC 16 and Mohinder Singh Gill and Another v. The Chief
Election Commissioner, New Delhi and Others - AIR 1978 SC 851] and
R.S. Garg v. State of Uttar Pradesh and Others [(2006) 6 SCC 430].
38. In any event, as in the meanwhile, the period for which the building
plan was sanctioned by the State had expired, the question as to whether in
the aforementioned fact situation obtaining, the respondents acquired any
vested right despite the amendments in the regulation by defining ’core area’
and providing for the heritage zone is the issue, in our opinion, is
misconceived.
39. It is now well-settled that where a statute provides for a right, but
enforcement thereof is in several stages, unless and until the conditions
precedent laid down therein are satisfied, no right can be said to have been
vested in the person concerned. The law operating in this behalf, in our
opinion is no longer res integra.
40. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2
All ER 721], the Privy Council considered the said question having regard to
the repealing provisions of the Landlord and Tenant Ordinance, 1947 as
amended on 9-4-1957. It was held that having regard to the repeal of
Sections 3-A to 3-E, when applications remained pending, no accrued or
vested right was derived. It was observed therein :
"In summary, the application of the second appellant for
a rebuilding certificate conferred no right on him which
was preserved after the repeal of Sections 3-A to 3-E, but
merely conferred hope or expectation that the Governor-
in-Council would exercise his executive or ministerial
discretion in his favour and the first appellant would
thereafter issue a certificate. Similarly, the issue by the
first appellant of notice of intention to grant a rebuilding
certificate conferred no right on the second appellant
which was preserved after the repeal, but merely
instituted a procedure whereby the matter could be
referred to the Governor-in-Council. The repeal
disentitled the first appellant from thereafter issuing any
rebuilding certificate where the matter had been referred
by petition to the Governor-in-Council but had not been
determined by the Governor."
[See also Lakshmi Amma v. Devassy [1970 KLT 204]
41. The question again came up for consideration in Howrah Municipal
Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC
663], wherein this Court categorically held :
"\005The context in which the respondent Company
claims a vested right for sanction and which has been
accepted by the Division Bench of the High Court, is
not a right in relation to ownership or possession of any
property for which the expression vest is generally
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used. What we can understand from the claim of a
vested right set up by the respondent Company is that
on the basis of the Building Rules, as applicable to their
case on the date of making an application for sanction
and the fixed period allotted by the Court for its
consideration, it had a legitimate or settled expectation
to obtain the sanction. In our considered opinion, such
settled expectation, if any, did not create any vested
right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner
of processing of application for sanction by the
Corporation cannot be blamed for delay but during
pendency of its application for sanction, if the State
Government, in exercise of its rule-making power,
amended the Building Rules and imposed restrictions
on the heights of buildings on G.T. Road and other
wards, such settled expectation has been rendered
impossible of fulfilment due to change in law. The
claim based on the alleged vested right or settled
expectation cannot be set up against statutory
provisions which were brought into force by the State
Government by amending the Building Rules and not
by the Corporation against whom such vested right or
settled expectation is being sought to be enforced. The
vested right or settled expectation has been nullified not
only by the Corporation but also by the State by
amending the Building Rules. Besides this, such a
settled expectation or the so-called vested right cannot
be countenanced against public interest and
convenience which are sought to be served by
amendment of the Building Rules and the resolution of
the Corporation issued thereupon."
42. In Union of India and Others v. Indian Charge Chrome and Another
[(1999) 7 SCC 314], yet again this Court emphasized :
"\005The application has to be decided in accordance with
the law applicable on the date on which the authority
granting the registration is called upon to apply its mind
to the prayer for registration\005"
43. In S.B. International Ltd. v. Asstt. Director General of Foreign Trade
[(1996) 2 SCC 439], this Court repelled a contention that the authorities
cannot take advantage of their own wrong viz. delay in issuing the advance
licence, stating :
"We have mentioned hereinbefore that issuance of
these licences is not a formality nor a mere ministerial
function but that it requires due verification and
formation of satisfaction as to compliance with all the
relevant provisions."
[See also Kuldeep Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702]
44. Mr. Ganguli, however, submitted that whereas in the case of State of
West Bengal etc. v. Terra Firma Investment & Trading Pvt. Ltd. etc.,
[(1995) 1 SCC 125], the amended statute itself provided for rejection of all
pending applications, no such provision has been laid down in the
notification and, thus, the said decision is distinguishable.
45. Ganges Rope Co. Ltd. (supra) was also sought to be distinguished by
Mr. Ganguli, submitting (i) in the Howrah Municipal Corporation Act, 1980
there was no deeming provision; (ii) the said law had been amended; and
(iii) therein the statute used the word ’ordinarily’.
46. It is difficult to agree with the aforementioned contention of the
learned Senior Counsel.
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47. There cannot be any doubt whatsoever that an owner of a property is
entitled to enjoy his property and all the rights pertaining thereto. The
provisions contained in a statute like the 1994 Act and the building bye-laws
framed thereunder, however, provide for regulation in relation to the
exercise and use of such right of an owner of a property. Such a regulatory
statute must be held to be reasonable as the same is enacted in public
interest. Although a deeming provision has been provided in sub-section (1)
of Section 247 of the 1994 Act, the same will have restricted operation. In
terms of the said provision, the period of sixty days cannot be counted from
the date of the original application, when the building plans had been
returned to the applicant necessary clarification and/or compliance of the
objections raised therein. If no sanction can be granted, when the building
plan is not in conformity with the building bye-laws or has been made in
contravention of the provisions of the Act or the laws, in our opinion, the
restriction would not apply despite the deeming provision.
48. A legal fiction, as is well-known, must be construed having regard to
the purport and object of the Act for which the same was enacted. [See
Ishikawajma-Harima Heavy Industries Ltd. v. Director of Income Tax,
Mumbai \026 2007 (1) SCALE 140 \026 Para 36].
49. It is in the light of the aforementioned principle that the question as to
whether the respondents had acquired any vested right or not must be
considered. Strong reliance, in this behalf, has been placed by Mr. Ganguli
on a decision of the Division Bench of this Court in Live Oak Resort (P)
Ltd. and Another v. Panchgani Hill Station Municipal Council and Another
[(2001) 8 SCC 329]. The said decision was rendered on its own facts. In
that case a building plan had been granted; construction had been started in
terms of the building plan as also the rules which were applicable at the
relevant point of time. The question which arose for consideration therein
was as to whether a subsequent amendment to the rules, in respect of
additional FSI shall have any effect on the sanctioned building plan, it was
contended that keeping in view the environmental question, the same will
have not.
50. The said decision having been rendered in the fact situation obtaining
therein, which has no similarity to the facts of the present case, which in our
opinion, cannot be said to have any application whatsoever. The submission
of Mr. Ganguli that despite expiry of the period of sanction of the
development plan by the State under the 1977 Act, the same should be held
to be extended, in our opinion, cannot be accepted. Reliance has been
placed by Mr. Ganguli on M.C. Mehta (Badkhal and Suraj Kund Lakes
Matter) v. Union of India and Others [(1997) 3 SCC 715]. Therein, it was
held :
"2. No construction of any type shall be permitted,
now onwards, in the areas outside the green belt (as
shown in Ex. A and Ex. B) up to one km radius of the
Badhkal lake and Surajkund (one km to be measured
from the respective lakes). This direction shall, however,
not apply to the plots already sold/allotted prior to 10-5-
1996 in the developed areas. If any unallotted plots in the
said areas are still available, those may be sold with the
prior approval of the Authority. Any person owning land
in the area may construct a residential house for his
personal use and benefit. The construction of the said
plots, however, can only be permitted up to two and a
half storeys (ground, first floor and second half floor)
subject to the Building Bye-laws/Rules operating in the
area. The residents of the villages, if any, within this area
may extend/reconstruct their houses for personal use but
the said construction shall not be permitted beyond two
and a half storeys subject to Building Bye-laws/Rules.
Any building/house/commercial premises already under
construction on the basis of the sanctioned plan, prior to
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10-5-1996 shall not be affected by this direction"
51. The restriction therein was imposed by the court, which was a judge-
made law and not a statute law. Relaxation, therefore, was granted keeping
in view the rights of the parties in terms of the order passed by the court.
However, in this case, we are bound by the provisions contained in a statute.
52. In T. Vijayalakshmi and Others v. Town Planning Member and
Another (2006) 8 SCC 502], although exercise of jurisdiction by a statutory
authority within a reasonable time has been emphasized, but there again the
applicability of existing law has been emphasized referring to Ganges Rope
Co. Ltd. (supra) and Ho Po Sang (supra). The said decision was rendered
having regard to the fact that only a proposal of amendment was made, and
no amendment as such had come into effect. A right of a citizen under a
statute, therefore, could not have been taken away only because a proposal
was in the offing. In that case, the State had not given its final approval
having regard to the development of the plan. The said decision, therefore,
cannot be said to have any application in the instant case.
53. Furthermore, since special regulations have been framed in the town
of Shimla, the core area as provided for in the regulation is required to be
protected. The area in question has been declared to be a heritage zone, and
hence no permission to raise any construction can be issued, which would
violate the ecology. Such regulations have been framed in public interest.
Public interest, as is well-known, must override the private interest. [See
Friends Colony Development Committee v. State of Orissa and Others AIR
2005 SC 1 \026 para 22].
54. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. In the
facts and circumstances of the case, however, there shall be no order as to
costs.