IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1858 of 1995 alongwith RSA No.414 of 1998. Reserved on : 28.06.2011 Date of Decision: 4.7.2011 CWP No. 1858 of 1995 Ram Lal …Petitioner. Versus. Municipal Corporation and others … Respondents. RSA No. 414 of 1998 Municipal Corporation, Shimla … Appellant. Versus. Ram Lal … Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. In all the petitions For the Petitioner/respondent Mr. G.C.Gupta, Sr. Advocate with (Ram Lal) Mr. Ashish Jamalta, Advocate. For the Respondent/appellant: Mr. Shrawan Dogra, Advocate. (Municipal Corporation) For the Respondent-State Mr. Vivek Singh, Addl. A.G. Deepak Gupta, J. 1. The aforesaid Civil Writ Petition and Regular Second Appeal are being decided by a common judgement since similar questions of fact and law are involved in the case. 2 2. RSA No. 414 of 1998 was admitted on the following questions of law:- 1. Whether the learned Lower Appellate Court misconstrued the provisions of the H.P.Town and Country Planning Act, 1977 and thereby fell into error that the revised map was not required to be got sanctioned from the Town and Country Planning Department? 2. Whether the benefit of provisions of Section of H.P. Municipal Corporation Act, 1979 as to deem sanction can be claimed without getting the plan sanctioned first from Town and Country Planning Department and also even if the plan so submitted did not confirm to the building bye-laws? 3. A third substantial question of law was framed on 23.12.2002, which reads as follows:- “Whether in the face of facts pleaded in the plaint, the plaintiff is entitled to any relief beyond what is claimed in the suit?” 4. The undisputed facts are that Shri Ram Lal petitioner in CWP No. 1858 of 1995 and plaintiff in Civil Suit out of which RSA No. 414 of 1998 arises owned two biswas of land comprised in Khasra No. 244/1/5 Khata Khatauni No. 103/118 min situate in Sanjauli, Tehsil and District Shimla. On 29th December, 1976 he submitted a plan to the Municipal Corporation, Shimla seeking permission to raise a three storeyed building on the aforesaid land. This permission was sought under the provisions of the 3 H.P.Municipal Corporation Act, 1979. The Corporation vide its order dated 25th February, 1977 approved the plan but in the aforesaid sanction it was clearly stated that the Corporation does not accept the responsibility for the correctness of the boundaries or ownership of the land. 5. It is not disputed that the petitioner only raised a two storeyed structure. According to the petitioner, due to lack of funds he could not raise the third storey. It is also not disputed that while raising such structure the petitioner encroached upon some adjoining land belonging to one Brigadier Sukhwant Singh, who filed a suit in the Court of learned Senior Sub Judge, Shimla which suit was compromised on 19.3.1990. In this suit Brigadier Sukhwant Singh agreed to transfer the encroached land to Shri Ram Lal for a consideration of Rs.5,500/- and an agreement in this behalf was entered into between the parties. It, however, appears that no sale deed was ever executed since the land in question was only one biswa and in the municipal area of Shimla sale deed of less than four biswas of land is not registered. 6. Be that as it may, there is no dispute that the true owners have no dispute with the petitioner Ram Lal. According to the petitioner he thereafter submitted a fresh plan for sanction permitting him to raise a third storey on 6th March, 1991. This fact is not denied by the Municipal 4 Corporation. No orders were passed on this plan and the case of the petitioner is that in terms of Section 262 of the Municipal Corporation Act, 1979 there is deemed sanction of the plan. Assuming the deemed sanction of the plan the petitioner constructed the third storey and submitted the completion plan with the Municipal Corporation on 3rd May, 1994. Again the Municipal Corporation did not respond to the petitioner. Thereafter the petitioner wrote letter on 5th June, 1995 praying that he may be granted no objection certificate to enable him to get electricity and water connections in his premises. At this stage, the Municipal Corporation rejected the completion plan submitted by the petitioner on the following grounds:- “1. Khasra Nos. shown in the proposed plan which was sanctioned were different from the one shown in the present plan. 2. The position of set-back have not been shown in the plan submitted by you. 3. The details of area has not been shown in the plan submitted by you. 4. The overall height of the building has not been shown in the plan.” 7. The petitioner challenged this letter by filing CWP No. 1858 of 1995. The stand of the Municipal Corporation is that in fact the petitioner had submitted a revised plan of the building on 13th November, 1990 which was rejected on 28th January, 1991 and the grounds of rejection were duly sent to the petitioner. According to the Municipal 5 Corporation, even the second plan submitted by the petitioner on 26th March, 1991 was rejected on 16th August, 1991. The petitioner again submitted a plan on 3rd May, 1994 which contained certain additions and alterations and therefore, the same was rejected. 8. It would be pertinent to mention that this Court on 4.8.1999 had directed the Municipal Corporation to file a supplementary affidavit, which was filed and in this supplementary affidavit the Municipal Corporation clearly stated that the plan submitted by the petitioner on 13th November, 1990 was returned on 28th January, 1991 i.e. within three months with the following objections:- “1. That two stories constructed on the spot are not as per sanctioned plan. 2. Since 1977, no application for extension of time limit has been received. Hence, sanction for third storey is now elapsed. 3. Sanction for third storey may please be obtained from TCP Department.” 9. The petitioner has filed a detailed counter affidavit to this affidavit. 10. The petitioner also filed a Civil Suit for declaration and injunction in the trial Court. This suit was filed on 6th September, 1991 and the prayer made in the suit reads as follows:- “It is, therefore, prayed that a decree for declaration to the effect that the plan dated 26th March, 1991 for construction on Khasra No. 6 244/1/5 situated at Sanjauli submitted by the plaintiff for sanction to the defendant shall be deemed to have been sanctioned as per the provision of H.P. Municipal Corporation Act, 1979 and for permanent prohibitory injunction restraining the defendant from interfering the construction of the plaintiff raised in accordance with the above law be passed in favour of the plaintiff and against the defendant. Any other relief which this Hon’ble Court deem just and proper be also passed in favour of the plaintiff.” 11. This suit was dismissed by the learned trial Court vide its judgement and decree dated 16th June, 1993. Appeal was filed by Shri Ram Lal and the learned District Judge held that no permission of the Town and Country Planning Department was necessary and allowed the appeal. Hence, RSA No. 414 of 1998 by the Municipal Corporation. 12. It would be pertinent to mention that in the suit the relief claimed was only qua Khasra No. 244/1/5 and obviously the relief granted relates to this khasra number only. Thereafter, the plaintiff filed an application that he should be permitted to amend the plaint and now wanted to plead that the map submitted in the year 1991 pertained to Khasra No. 746/244/2 and 746/244/3 as well. These khasra numbers comprise of one biswa of land which Ram Lal had encroached and later purchased from Sukhwant Singh. This application was allowed and an additional 7 issue framed and thereafter report called for from the Civil Judge (Jr. Division), Court No.4, Shimla who submitted his report. 13. I have heard Shri G.C.Gupta, learned senior counsel for Shri Ram Lal and Shri Shrawan Dogra, learned counsel for the Municipal Corporation. 14. The main contention of Shri G.C.Gupta, learned Senior Counsel, is that since the plan submitted by the petitioner on 6th March, 1991 was not rejected within 90 days, there is deemed sanction of the plan. He also submits that the completion report submitted on 3rd May, 1994 was also not rejected within 60 days and therefore, the same is deemed to be sanctioned. According to him the provisions of the H.P.Municipal Corporation Act, 1979 apply to this case and there is deemed sanction of the plan in terms of Section 262, which reads as follows:- “262. When building or work may be proceeded with.-(1) where within a period of sixty days, or in cases falling under clause (b) of section 256 within a period of thirty days, after the receipt of any notice under section 258 or section 259 or of the further information, if any, required under section 260, 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 the 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 8 as expressed in the notice and the documents and plans accompanying the same: 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 withhold sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or, as the case may be, the period of thirty days specified in this sub section 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 is 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 258 or, as the case may be, under Section 259 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 9 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.” 15. Reliance is also placed upon proviso to Section 271 of the Act, which provides that if the Commissioner fails within a period of thirty days after receipt of the notice of completion to communicate his refusal to grant such permission, the same shall be deemed to have been granted. The H.P. Municipal Corporation Act, 1979 was repealed by the H.P. Municipal Corporation Act, 1994 but that does not in any way affect the proceedings in the present case. Section 247 of the 1994 Act is similar to Section 262 of the earlier Act and the proviso to Section 257 of the 1994 Act is virtually identical to the proviso of Section 271 of the previous Act. 16. The question that arises is, whether a deemed sanction is applicable in all cases? If the plan submitted is not in accordance with law can it be deemed to have been sanctioned? 17. The Apex Court in Calcutta Municipal Corporation and another vs. Anil Ratan Banerjee and others 1995 Supp (2) SCC 56 held as follows:- 10 “16. Apart from the above, there is yet another problem in the way of the respondents. Section 319 expressly states that even in case of a deemed permission, the applicant cannot execute the work “so as to contravene any of the provisions of this Act or of Schedule VI or any rule or bye-law applying thereto”. Neither the learned Single Judge nor the Division Bench have gone into and/or recorded any finding that having regard to the position of law obtaining on 24.8.1987 and the width of the road on which the said premises abuts, a permission for twelve-storey building could have been granted. Neither the learned Single Judge nor the Division Bench have gone into this aspect. They have assumed that such a permission could have been granted. The said assumption is challenged by the Corporation before us.” 18. In the present case, sub-section (2) of Section 262 of the H.P. Municipal Corporation Act, 1979 clearly lays down that that even a person who has been granted sanction including deemed sanction has to erect the building in such a manner that there is no contravention of any of the provisions of the Act or any other law or of any bye-law made thereunder. Sub-section (3) provides that if the building is not commenced within one year then the plan lapses and fresh sanction has to be applied for. 19. Shri G.C.Gupta, learned Senior Counsel, has relied upon the observations of the Apex Court in Live Oak Resort (P) Ltd. and another vs. Panchgani Hill Station Municipal Council and another (2001) 8 SCC 11 329. In my view the observations made by the Apex Court in para 22 are obiter in nature because the Apex Court itself has clearly stated that it is not inclined to go into the issue in detail. No doubt, the Apex Court has stated that after expiry of 60 days the sanction is deemed to be given and subsequent rejection cannot affect any work of construction being declared as unauthorized but these observations have been made in the facts of that case alone. 20. The Apex Court in a later judgement in Commissioner of Municipal Corporation, Shimla vs. Prem Lata Sood and others (2007) 11 SCC 40 dealt with the specific provisions of the H.P. Municipal Corporation Act, 1994 and held as follows:- “31. 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 restricts 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 filed. 32. The 1977 Act is one of such Acts. As noticed hereinbefore, the provisions thereof are binding upon the local authority. Once the 12 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. 33. 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.” 21. Once objections are raised to the plan then even if there was deemed sanction, the builder must answer the objections raised. In the present case, the petitioner withheld one material fact from his Court that he had submitted a revised plan on 13th November, 1990 which was rejected on 28th January, 1991. This is apparent from the affidavit filed by the Commissioner pursuant to the orders of this Court dated 4.8.1999. Therefore, he was 13 aware of the objections raised by the Municipal Corporation. He could not have filed a fresh plan without answering those objections. A person whose plan has been rejected or on whose plan objections have been raised cannot file a fresh plan without making reference to the earlier plan and the objections raised therein. There can be no deemed sanction of such a plan. 22. Even otherwise, as is apparent that the second plan was rejected on 16th August, 1991 though after a period of 90 days. Once the plan was rejected, the petitioner should have either challenged the order of rejection but could not have assumed that such rejection was invalid. As far as the completion certificate is concerned, since there was no deemed sanction of the original plan, there cannot be any deemed sanction of the completion. 23. It would not be out of place to deal with the wider ramifications of deemed sanction. In my view there can be no deemed sanction of a plan which is inherently against law. Let us assume that the plan is submitted for construction of four storeys in an area where only two storeys are permitted. There can be no deemed sanction of such a plan which is violative of the provisions of law. Similarly, if the plan does not reflect the appropriate set backs or in any manner violates the bye laws or any other rules or laws, there can be no deemed sanction of a plan. 14 Deemed sanction can only be of a plan which is strictly in accordance with the Municipal bye-laws and the other laws governing the construction of buildings. Any construction which is against the law, even if made on the basis of sanction granted or on the basis of deemed sanction, remains illegal construction and can be demolished at any time after following the procedure laid down in the law. 24. In the present case, there are some inherent defects in the plan submitted by the petitioner in the year 1990 and 1991. By this time agreement had been entered into by him with Brigadier Sukhwant Singh but he inadvertently or otherwise did not make any mention of Khasra Nos. 746/244/2 and 746/244/3. The reason for withholding this information was obvious. When the petitioner constructed the two storeys he obviously violated the earlier plan which was sanctioned by the Municipal Corporation since he had sought sanction to construct Khasra No. 244/1/5 only and not any other khasra numbers. Without getting the construction on khasra Numbers 746/244/2 and 746/244/3 regularized, the petitioner could not have got a new plan sanctioned. Therefore, without going into the question as to whether permission of the Town and Country Planning was required or not till the earlier construction was compounded/regularized no new construction could have 15 been raised. Therefore, there is no merit in the suit of the petitioner or in the writ petition filed by him. 25. However, at this stage more than almost two decades have been elapsed and it would not be appropriate to order demolition of the third storey. The petitioner alongwith the suit had filed an application praying that since there is deemed sanction of the plan he may be permitted to continue the construction. The learned trial Court passed an order on 6.9.1991 directing both the parties to maintain status qua till further orders. It appears that this application was never decided and the suit itself dismissed on 13.6.1993. Therefore, the petitioner has in fact raised construction despite the stay orders of the trial Court but the fact remains that now a third storey has been raised on the two storeys earlier constructed. It would be very harsh to demolish the same especially when the petitioner has purchased the encroached area. 26. Therefore, the appeal of the Municipal Corporation is allowed and the judgement of the lower appellate Court is set-aside. It is directed that the petitioner shall be at liberty to submit a fresh revised plan within eight weeks from today. In case, he submits such revised plan then the Municipal Corporation shall consider the same in accordance with the law existing in the year 1991 and after 16 charging such compounding fees as is just and reasonable compound the extra/unauthroised construction. It is made clear that this portion of the order including the order for compounding of the third storey is being passed in view of the peculiar facts and circumstances of the case and shall not be treated as a precedent in any other case. The writ petition as well as the Regular Second Appeal are disposed of in the aforesaid terms. No order as to costs. 4th July, 2011. ( Deepak Gupta ) ™ Judge.