IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.279/2005 Reserved on.27.3.2008 Decided on: 25.4.2008 OP Laul …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. B.C. Negi, Advocate. For the respondents : Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General for respondents No. 1 and 2. Mr. Shrawan Dogra, Advocate for respondents No. 3 and 4. The brief facts necessary for the adjudication of this petition are that the petitioner was accorded permission to raise 5 storeys vide order No. 140 dated 1.5.1975. The permission was accorded for the construction of a house. He submitted a revised-cum- completion plan of a hotel which was approved by respondent- corporation vide order No. 458 on 12.11.1976. He submitted an application seeking permission to raise the 5th storey in the year 1988. The same was rejected by the Commissioner on 22.4.1997. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 He preferred an appeal before the Divisional Commissioner. The Divisional Commissioner dismissed the appeal on 1.12.1997. He preferred a writ petition bearing CWP No. 215 of 2004. The writ petition was dismissed as withdrawn. The judgment dated 9th June, 2004 rendered in CWP No. 215 of 2004 reads thus: “Mr. Romesh Verma appearing for the petitioner submits that he be permitted to withdraw this petition but with liberty to approach respondent No.2 for the grant of appropriate relief by making a proper representation to him. The writ petition is dismissed as withdrawn. Liberty prayed for is allowed. It is directed that if a proper representation is made to respondent no.2 by the petitioner within two weeks from today, respondent No.2 shall consider and dispose of his representation on its merits and in accordance with law within a period of three months from the date of its receipt. The representation shall be disposed of by passing a speaking and a well reasoned order.” The petitioner made a representation to the Municipal Corporation on 17.6.2004. The same was dismissed by the Commissioner of the respondent-corporation on 16.9.2004. He preferred a writ petition bearing No. 1101/2004 assailing the order of the Commissioner. The learned counsel appearing on behalf of the petitioner in CWP No. 1101/2004 had withdrawn the writ petition with liberty to assail the order of the Commissioner before the appellate authority in accordance with law. The judgment dated 23.12.2004 rendered in CWP No.1101/2004 reads thus: 3 “Mr. K.D. Shreedhar, learned counsel for the petitioner, seeks permission to withdraw this petition with liberty to challenge the order of the Commissioner, impugned in this writ petition, before the Appellate Authority, as provided under law. Permission and liberty is granted. Time required by the petition in presenting the appeal shall not be counted for calculating the limitation period by the Appellate Authority if the appeal is filed by the petitioner. The writ petition is disposed of as withdrawn.” The petitioner preferred a revision petition under section 403 of the Himachal Pradesh Municipal Corporation Act, 1994 against the order dated 16th September, 2004 passed by the Commissioner of respondent-corporation. He approached this Court by way of the present petition. A Division Bench of this Court passed the following order on 11.4.2005: “While disposing of CWP No. 1101 of 2004, a Division bench of this Court vide its order dated 23rd December, 2004 had given to the petitioner the liberty to challenge the order of the Commissioner before the Appellate Authority. Mr. Maniktala, learned counsel appearing for the petitioner submits before us that pursuant to the aforesaid liberty granted to his client, a Revision petition under Section 403 of the Himachal Pradesh Municipal Corporation Act, 1994 indeed has been filed. The Revision petition was filed on 14th January, 2005. According to the petitioner, it has not been disposed of so far. According to the learned counsel for the parties, there is no limitation prescribed under the 4 H.P. Municipal Corporation Act, 1994 for filing a Revision petition in terms of Section 403 of the said Act. The petitioner’s case is that the Commissioner, Municipal Corporation did not properly appreciate all the facts and did not apply correct legal proposition and on such wrong premises rejected the petitioner’s representation. The petitioner’s further case is that in the facts and circumstances of the case as had been projected before the Commissioner permission should have been granted in favour of the petitioner for raising the construction on the remaining part of the fifth floor. We have perused the order of the Commissioner and also seen some other relevant documents and find and feel that indeed the petitioner did perhaps deserve the accord of due consideration in his favour, looking to the fact that at one point of time the petitioner was granted permission to raise construction in its entirety on the fifth floor, even though subsequently such sanction/permission might have been modified/restricted to a limited area on the fifth floor. An equitable right should be deemed thus, to have accrued in favour of the petitioner at that point of time and, therefore, it would be a legitimate and permissible consideration if such equitable right is now enforced in favour of the petitioner and he be allowed to complete the remaining construction work on the fifth floor as had originally been proposed by him as well as it had originally been sanctioned by the Corporation in his favour. Adverting to the order dated 23rd December, 2004 passed by this Court in CWP No.1101 of 2004, 5 we direct the Revisional Authority in terms of Section 403 of the aforesaid Act before whom the revision has been filed to ensure that he proceeds in right earnest in disposing of the revision petition, after hearing the parties and on perusal of the record of the Corporation and other contemporaneous record. We direct the parties through their learned counsel to appear before the Revisional Authority on 25th April, 2005 at 11.00 A.M. in his office. The Revisional Authority shall hear the parties on that date and proceed to dispose of the revision petition. While disposing of the Revision petition, the Revisional Authority shall bear in mind the aforesaid observations made by this Court in the present order, as much as these are relevant to this case and try to find out whether in the facts and circumstances of the case at this stage also the permission can be granted to the petitioner to complete the construction work on the remaining part of the fifth floor of the building. The Revision petition shall be disposed of either on 25th April, 2005 itself or on a subsequent date convenient to the Revisional Authority but not latter than 21st May, 2005. The petition be listed on 23rd May, 2005. On that date a copy of the order passed by the Revisional Authority disposing of the Revision shall be filed before us for our perusal. Dasti copy.” In sequel to order dated 11.4.2005, the Secretary, Department of Urban Development Government of Himachal Pradesh decided the revision petition on 20.5.2005. The order of the Commissioner of 6 the respondent-corporation dated 16.9.2004 was upheld. Since the revision was decided by the Secretary, Department of Urban Development Government of Himachal Pradesh during the pendency of the writ petition, the petitioner filed an application seeking amendment to the writ petition to assail the order i.e. Annexure P-17. The application was allowed by this Court. The amended writ petition was taken on record. Respondents No.3 and 4 had filed detailed reply to the amended writ petition. Respondents No.1 and 2 had adopted the reply filed by respondents No.3 and 4 as is evident from order dated 7.7.2005. A Division Bench of this Court on 7.7.2005 had permitted the petitioner to erect, fix or put concrete slabs on such portion(s) of the top floor (fifth) as would ensure the avoidance of leakage and seepage. The petitioner was permitted to cover the top floor by providing concrete slab thereupon. The same was, however, at the risk and responsibility of the petitioner and the same was to ultimately abide by the result of the present petition. The Court had directed the Municipal Corporation to produce the necessary record. It transpired during the course of hearing that the entire record was not available with the respondent-corporation; however, the necessary record for the adjudication of this petition was made available. The Court had issued necessary directions to the Municipal Corporation to maintain the records as per the suggestions made by Mr. O.C. Thakur in his affidavit filed pursuant to the directions issued by the Court 7 Mr. Bipin Chand Negi, Advocate had strenuously argued that his client had acquired vested right to construct the 5th storey as per the earlier E.O. order No. 140 dated 1.5.1975. He also contended that the order dated 20.5.2005 whereby the revision preferred by his client has been dismissed is not sustainable in the eyes of law. Mr. Negi further contended that the application preferred by his client in the year 1988 is to be considered as per the law then existing and not as per the existing laws. Mr. Rajinder Dogra, Additional Advocate General and Mr. Shrawan Dogra, Advocate on behalf of the respondents had strenuously argued that the earlier permission granted to the petitioner on 1.5.1975 was superseded by E.O. No. 458 on 12.11.1976 whereby the petitioner had been granted permission only to construct 4 ½ storey. Mr. Shrawan Dogra had strenuously argued that the case of the petitioner is to be considered as per the existing laws on the date of consideration of the application. He has brought to the notice of this Court the various changes in the building laws, more particularly, an amendment which has been carried out in the Interim Development Plan on 22.8.2002 whereby only 2 storeys are permitted to be raised in the core area and notification dated 5.6.2003. I have heard the learned counsel for the parties and perused the record carefully as made available by Mr. Shrawan Dogra, Advocate during the course of hearing. In order to appreciate the rival submissions of the learned counsel appearing on behalf of the parties, it is necessary to take 8 into consideration the entire law which was applicable from time to time i.e. 1975 till the decision of the revision on 20.5.2005. The petitioner had submitted the plan for the construction of a house in the year 1975. The corporation had accorded the necessary permission to the petitioner on 1.5.1975 vide E.O. order No. 140. The petitioner submitted revised-cum-completion plan to the respondent-corporation. The corporation accorded the necessary sanction vide E.O. No. 458 on 12.11.1976. He had submitted revised-cum-completion plan for the construction of a hotel. He erected 4 ½ storey as per Annexure P-1 dated 12.11.1976. The building permission was regulated in the year 1975 under the Himachal Pradesh Municipal Act, 1968. No person could erect or re-erect or commence to erect or re-erect any building without the sanction of the committee as per section 199. The committee under section 200 of the Himachal Pradesh Municipal Act, 1968 had the power to make bye-laws with regard to erection or re-erection of buildings. Section 206 of the Himachal Pradesh Municipal Act, 1968 provided that the sanction accorded for the construction of building will lapse after one year. Section 206 reads thus: “206. Lapse of sanction after one year from the date of such sanction.- Every sanction for the erection or re-erection of any building which shall be given or be deemed to have been given by a committee, shall remain in force for one year only from the date of such sanction, or for such longer period as the committee may have allowed when conveying sanction under section 199. Should the erection or 9 re-erection of the building not have been commenced within one year and completed within two years or such longer period as may have been allowed by the committee, the sanction shall be deemed to have lapsed, but such lapse shall not bar any subsequent application for fresh sanction under the foregoing provisions of this Act.” The committee under sections 198, 199 and 200 of the Himachal Pradesh Municipal Corporation Act, 1968 had framed the Bye-Laws called “Building Bye Laws” which were duly notified in the month of February, 1975. Bye-law 13 specifically lays down that no person shall construct any building of more than 5 storey including the ground floor. Bye-law 13 reads thus: “13. (a) No person shall construct any building of more than five storeys including the ground floor, basement and no person shall construct any building of more than two such storeys unless the outer walls of such building are made of bricks, stone or reinforced concrete. (b). In the area northern side of Ridge above circular cart road/road between Nallaha near white Hotel upto North Bank building on Western side, only three storeys shall be allowed, but in case of more than three storeys details of constructions on structural calculation shall be required to be supplied with a certificate from the State Geologist that the soil is sufficiently strong to take the load of construction.” Bye-Law 16 deals with completion certificate and the same reads thus: 10 “16. Completion Certificate:- It shall be an offence, in case of a new building or additions to an old building sanctioned by the Corporation, to occupy or permit the occupation of such building or additions until the completion certificate is given by the owner and certified by the registered Architect/Engineer to that effect and the Medical Officer of Health, and if, necessary by the Engineer Water Works and Drainage and the Electrical Engineer of the Corporation that the house has actually been constructed according to the sanctioned plan and that no unauthorized additions or deviations have been made. The attestation will be completed and communicated to the owner within 15 days of the receipt of the completion certificate.” The petitioner had submitted as discussed hereinabove building plan in the year 1975 and the necessary permission was accorded in the year 1975 itself and as per revised-cum-completion plan, he has been permitted to raise 4 ½ storeys on 12.11.1976. He had raised 4 ½ storeys and as per Building Bye-Laws he was bound to be issued a completion certificate. It is evident from the language employed in section 206 that the sanction for raising the construction was to lapse after one year. It is also evident from Annexure P-1 that the building was to be constructed within a period of 2 years. Once the petitioner had submitted revised-cum-completion plan on 12.11.1976 the earlier permission accorded in his favour vide EO No. 140 dated 1.5.1975 stood superseded. 11 The petitioner submitted an application for raising the 5th storey as per the pleadings in the year 1988. The same was rejected by the Commissioner of the Municipal Corporation on 22.4.1997. The Himachal Pradesh Municipal Corporation Act, 1979 had come into force in the year 1979. The construction of buildings etc. was regulated under Chapter-XIV of the Himachal Pradesh Municipal Corporation Act, 1979. The period for completion of building of work as per section 266 of the Himachal Pradesh Municipal Corporation Act, 1979 was to be as per the period specified by the Commissioner while sanctioning the erection of a building or execution of a work. It was further stipulated in section 266 that if the building or work is not completed within the period specified, it shall not be continued without fresh sanction from the competent authority. Section 271 of the Himachal Pradesh Municipal Corporation Act, 1975 also stipulated completion certificate. It will also be apt at the stage to refer to the Himachal Pradesh Town and Country Planning Act, 1977. It was published in the Rajpatra extraordinary on 30th September, 1977. The State had published the Interim Development Plan for the town of Shimla and its suburbs in the year 1979. It is evident from the Interim Development Plan that in the area in which the petitioner’s property is situated only 3 storeys could be raised. Since the petitioner had submitted building plan in the year 1988, the same was to be regulated under the provisions of the Himachal Pradesh Municipal Corporation Act, 1979, the Himachal Pradesh Town and Country 12 Planning Act, 1977 and the Interim Development Plan published in the year 1979. The application in the year 1988 for all intents and purposes was a fresh application and the petitioner could not take advantage of the earlier sanction accorded to him on 1.5.1975. The application preferred by the petitioner thus was rightly rejected by the Commissioner on 22.4.1997. The Divisional Commissioner had also rejected the appeal after giving cogent reasons. It will also be advantageous at this stage to refer to the provisions of the Himachal Pradesh Municipal Corporation Act, 1994 since in the year 1997 when the appeal was rejected by the Divisional Commissioner, this Act had come into force. It is evident from section 251 of the Himachal Pradesh Municipal Corporation Act, 1994 that the construction has to commence and complete within the period prescribed by the Commissioner. If the building is not constructed within the stipulated period, a fresh sanction is to be obtained as per the manner prescribed under the Act. There is also a provision of submission of completion certificate as per section 257. The petitioner had filed CWP No. 215 of 2004 in this Court assailing the order of the Commissioner dated 1.12.1997. The writ petition was withdrawn with liberty to make a representation to the competent authority on 9.6.2004. The representation made by the petitioner was rejected by the Commissioner on 16.9.2004 by giving cogent and convincing reasons. The petitioner yet again approached this Court by way of CWP No. 1101/2004 which was also withdrawn with liberty to file appeal against the order of rejection on 23.12.2004. The petitioner instead 13 of filing an appeal preferred a revision before the Secretary, Department of Urban Development, Government of Himachal Pradesh. Since the revision was not decided by the authority within a reasonable period, the petitioner had approached this Court by way of the present writ petition. The Court on 11.4.2005 directed the Revisional Authority to decide the revision. The same was decided by the Secretary, Department of Urban Development, Government of Himachal Pradesh on 20.5.2005. The order dated 20.5.2005 has been assailed by the petitioner by way of amended writ petition. Now, the Court has to consider the law which was prevalent with effect from 1994 till 20.5.2005 the date on which the revision was dismissed. As discussed hereinabove, after coming into force of the Himachal Pradesh Municipal Corporation Act, 1994, the application was to be considered as per the provisions of the Himachal Pradesh Municipal Corporation Act, 1994 and the Building Bye-laws framed in the year 1998. It is specifically provided in bye- law 2.03 that all mandatory zonal plan regulations regarding use, coverage, set backs, open spaces, height, number of storeys, parking standards etc. for various categories of building including modification there on made from time to time shall be applicable mutatis mutandis in the building regulations under these bye-laws. Bye-law 2.03 reads thus: “All mandatory zonal plan regulations regarding use, coverage, set backs, open spaces, height, number of storeys, parking standards etc. for various categories of building including modification there on made from time to time shall 14 be applicable mutatis mutandis in the building regulations under these bye-laws. All amendments/modifications made in those regulations will automatically be included as part of these bye-laws.” The State had amended the Interim Development Plan vide notification dated 22.8.2002 whereby only 2 storeys could be constructed in the core area. It is not disputed that the area of the petitioner falls in core area where only 2 storyes are permissible. Besides, the number of storyes restricted by these regulations, which have come into force on 22.8.2002, the floor area ratio of 1.00 has also been prescribed therein. The Secretary has taken into consideration notification dated 22.8.2002 as well as the floor area ratio while dismissing the revision filed by the petitioner. It is evident from the details given in the order passed by the Secretary that the floor area ratio of the hotel of 4 ½ storeys is 1096.17 square meters which exceeds the permissible floor area ratio. The Secretary has correctly recorded the finding that the permission to raise 5th storey could not be permitted in a core area and the floor area ratio of the existing structure exceeds the limit prescribed i.e. 1.00 under the amended regulations. Now, the Court has to advert to the other notification which has been issued on 5.6.2003 by the State whereby strict norms have been laid down for raising new construction and for re-construction of old building in the heritage zone. The construction can be raised in the heritage area only on the basis of the specific recommendations made by the Advisory Committee and permitted 15 by the State Government. The area where the petitioner had already constructed a hotel falls in heritage zone. The Secretary had also referred to this notification in his order dated 20.5.2005. The case of the petitioner was to be considered for raising the 5th storey as per the law applicable at the time of the consideration of application and revision. The Court has already taken into consideration the existing building laws as and when the application of the petitioner was considered for raising 5th storey. Their Lordships of the Hon’ble Supreme Court in Howrah Municipal Corporation and others versus Ganges Rope Co. Ltd. and others, (2004) 1 SCC 633 have held as under: “The argument advanced on the basis of so-called creation of vested-right for obtaining sanction of the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word `vest' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With long usage the said word `vest' has also acquired a meaning as "an absolute or indefeasible right" [See K.J. Aiyer's `Judicial Dictionary' (A complete Law Lexicon), Thirteenth Edition]. The context in which 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 used. What we can understand from the claim of `vested right' set up by the respondent- company is that on the basis of 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 16 `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 fulfillment 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