# COMMISSIONER OF MUNICIPAL CORPORATION, SHIMLA v. PREM LA TA SOOD AND ORS

- **Citation:** [2007] 6 S.C.R. 898
- **Court:** Supreme Court of India
- **Decided:** 2007-05-15
- **Case number:** Civil Appeal No. 2525 of2007
- **Bench:** S.S. Sinha, Markandey Ka Tju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-municipal-corporation-shimla-v-prem-la-ta-sood-and-ors-23127
- **Pages:** 24

## Headnote

The Himachal Pradesh Town and Country Planning Act, 1977-Sections
' -
2(g), 2(o), 3, JO, 14, 17, 25, 30, 31, 76-State granting permission to
,
c
construct hotel under 1977 Act-Building plan for hotel submitted before
local authority for sanction/approval under 1994 Act-Subsequently, State
issuing notifications and amending regulations placing restrictions on
construction in area in which hotel intended to be developed-Local authority
in view of amendments in regulations rejecting application for sanction of
building plans-Decision of local authority challenged on the ground that
D building plan sanctioned by State under 1977 Act binding on local authorityHeld, the 1977 Act and the 1994 Act operate in different fields and are
complementary and supplementary to each other and there is no conflict
between the two Acts-The 1977 Act deals with laying down overall poJicy
i
matter and the 1994 Act deals with grant of building plans in terms of
E
provisions thereof-Sanction for development granted under 1977 Act would
not mean that the provisions of 1994 Act or the building bye-laws not
required to be complied with-Besides, notification issued amending
regulations and placing restrictions on construction binding upon the local
authority and sanction could not have been granted in violation thereofJn the facts held, no vested right can be said to have accrued in the matterF Himachal Pradesh Municipal Corporation Act, 1994-Sections 243, 244,
245, 246 and 247.
~
~
Respondent Nos. 1 to 5 intended to construct a hotel on the Mall Road
in the town of Shimla and filed an application for grant of planning permission
to the Town and Country Planning Department which was approved by the
G Government ofHimachal Pradesh by an order dated 16.01.1998 under Section
31(1) of The Himachal Pradesh Town and Country Planning Act, 1977 subject
inter alia, to the condition that building permission should be obtained from
•
the local authority concerned before commencement of the development. An
application for sanction of the building plan in terms of the provisions of the
H
898
\
COMMNil. OF MUNICIPAL CORPN., SHIMLA "· PREM LATA SOOD
899
Himachal Pradesh Muni<:ipal Corporation Act, 1994 and building bye-laws A
framed thereunder was submitted to the appellant-Corporation on 07.07.1999.
The Municipal Corporation, however, returned the said plans asking for
certain clarifications. Respondents resubmitted the (llans upon purported
compliance of the objections on ! O.a.t.2000. However, immediately thereafter
on 17 .4.2000 a purported temporary·ffteZe on comtruction activities in some
areas appertaining to Shim la Planning Area was issuerl by41te G<Wernment B
of Himachal Pradesh. The said temporary ban was-clarified on or about
25.7.2000 by stating that the building plan cases already cleared by the
Government/Cabinet may be processed further in aceordance with the Rules
and Regulations. However, before the appellant-Corporation could consider
the respondent's ' application for grant of sanction of the development plan in C
terms of the 1994 Act and/or building bye-laws framed thereunder, the State
of H.P. issued notification in terms of sub-sections ( 4) and 5 of Section 17 of
the 1977 Act, making further amendments in the interim development plans
imposing restrictions on construction in Shimla Planning Area and
subsequently also amended regulations by issuing notification dated 22.8.2000
declaring 'core area' and 'heritage zone' and putting further restrictions on
construction in respect of the said areas within which only the respondents
had filed their application for grant of sanction of the building plans. In view
of the notification, the application for sanction of the building plans wi:s
ultimately rejected by the Corporation.
Respondents filed writ petition in the High Court seeking directions to
D
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the appellant-Corporation to accord necessary pla!lning permission to the
respondents for construction of hotel. Division Bench allowed writ petition
ho

## Text

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.....
A
COMMISSIONER OF MUNICIPAL CORPORATION, SHIMLA
r
v.
PREM LA TA SOOD AND ORS.
MAY 15, 2007
B
[S.S. SINHA AND MARKANDEY KA TJU, JJ.]
The Himachal Pradesh Town and Country Planning Act, 1977-Sections
' -
2(g), 2(o), 3, JO, 14, 17, 25, 30, 31, 76-State granting permission to
,
c
construct hotel under 1977 Act-Building plan for hotel submitted before
local authority for sanction/approval under 1994 Act-Subsequently, State
issuing notifications and amending regulations placing restrictions on
construction in area in which hotel intended to be developed-Local authority
in view of amendments in regulations rejecting application for sanction of
building plans-Decision of local authority challenged on the ground that
D building plan sanctioned by State under 1977 Act binding on local authorityHeld, the 1977 Act and the 1994 Act operate in different fields and are
complementary and supplementary to each other and there is no conflict
between the two Acts-The 1977 Act deals with laying down overall poJicy
i
matter and the 1994 Act deals with grant of building plans in terms of
E
provisions thereof-Sanction for development granted under 1977 Act would
not mean that the provisions of 1994 Act or the building bye-laws not
required to be complied with-Besides, notification issued amending
regulations and placing restrictions on construction binding upon the local
authority and sanction could not have been granted in violation thereofJn the facts held, no vested right can be said to have accrued in the matterF Himachal Pradesh Municipal Corporation Act, 1994-Sections 243, 244,
245, 246 and 247.
~
~
Respondent Nos. 1 to 5 intended to construct a hotel on the Mall Road
in the town of Shimla and filed an application for grant of planning permission
to the Town and Country Planning Department which was approved by the
G Government ofHimachal Pradesh by an order dated 16.01.1998 under Section
31(1) of The Himachal Pradesh Town and Country Planning Act, 1977 subject
inter alia, to the condition that building permission should be obtained from
•
the local authority concerned before commencement of the development. An
application for sanction of the building plan in terms of the provisions of the
H
898
\
COMMNil. OF MUNICIPAL CORPN., SHIMLA "· PREM LATA SOOD
899
Himachal Pradesh Muni<:ipal Corporation Act, 1994 and building bye-laws A
framed thereunder was submitted to the appellant-Corporation on 07.07.1999.
The Municipal Corporation, however, returned the said plans asking for
certain clarifications. Respondents resubmitted the (llans upon purported
compliance of the objections on ! O.a.t.2000. However, immediately thereafter
on 17 .4.2000 a purported temporary·ffteZe on comtruction activities in some
areas appertaining to Shim la Planning Area was issuerl by41te G<Wernment B
of Himachal Pradesh. The said temporary ban was-clarified on or about
25.7.2000 by stating that the building plan cases already cleared by the
Government/Cabinet may be processed further in aceordance with the Rules
and Regulations. However, before the appellant-Corporation could consider
the respondent's ' application for grant of sanction of the development plan in C
terms of the 1994 Act and/or building bye-laws framed thereunder, the State
of H.P. issued notification in terms of sub-sections ( 4) and 5 of Section 17 of
the 1977 Act, making further amendments in the interim development plans
imposing restrictions on construction in Shimla Planning Area and
subsequently also amended regulations by issuing notification dated 22.8.2000
declaring 'core area' and 'heritage zone' and putting further restrictions on
construction in respect of the said areas within which only the respondents
had filed their application for grant of sanction of the building plans. In view
of the notification, the application for sanction of the building plans wi:s
ultimately rejected by the Corporation.
Respondents filed writ petition in the High Court seeking directions to
D
E
the appellant-Corporation to accord necessary pla!lning permission to the
respondents for construction of hotel. Division Bench allowed writ petition
holding that the purported declaration in relation to the core area and heritage
zone would not apply in the case of the respondents in view of the fact that the
building plan submirted by them before the Director in terms of the provisions F
of the 1977 Act had already been allowed, and the same had conferred a vested
right in the respondents and issued necessary directions to the Corporation·
to process building plans furnished by the respondents uninfluenced by the
subsequent notification of Government and on the basis of the building byelaws as were prevalent at the time of initial submission of building plans by G
the respondent. Hence, this appeal by the Corporation.
Appellant inter alia contended that having regard to the subsequent
notification dated 11.08.2000 and 22.08.2000, the impugned judgment could
not have been passed by the High Court.
H
900
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A
Respondents inter alia contended that 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; that the appellant
being a local authority, a building plan sanctioned by the State in terms of the
1977 Act would be binding on it and could not have rejected; that the building
B plan submitted by the respondents having already been approved, the Municipal
Corporation was bound to act thereupon irrespective of the effect of
notification; that in any even as the application for building plans submitted
on 07.07.1999 was neither rejected nor accepted within a period of sixty days
therefrom, the sanction of the plan would be deemed to have been granted in
C terms of the provisions contained in Section 247 of the 1994 Act; and that
unnecessary delay was caused by the appellant-Corporation in dealing with
the respondents' application for grant of sanction for the building plans.
Allowing the appeal, the Court
D
HELD: 1. The Himachal Pradesh Town and Country Planning Act, 1977
and the Himachal Pradesh Municipal Corporation Act, 1994 operated 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 Act'i. The 1977 Act deals with laying down the broad policy. It provides
for preparation of development plans including the internal development plans.
E 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
p Commissioner of the Municipal Corporation; only because sanction for
development in the Mall Area of the town ofShimla 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. Even in the
order of sanction passed in favour of the respondents by the State, a condition
G 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 would operate.
[Paras 32 and 33] [915-D-G]
\-
) -
COMMNR. OF MUNICIPAL CORPN., SHIMLA v. PREM LATA SOOD
901
~
2. Section 243 of the 1994 Act clearly mandates that erection of a 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 B
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. The 1977 Act is one of such Act. 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 c
(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. (Paras 34 and 35] (915-H; 916-A-C]
3. 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 D
said order was also binding upon the appellant-Corporation and no permission
could have been granted in favour of the respondents in violation thereof. 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 E
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. [Para 37] (916-G-H; 917-A]
Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952) SC
16, Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New F
....
Delhi and Ors., AIR (1978) SC 851 and R. S. Garg v. State of Uttar Pradesh
~
and Ors., [2006] 6 SCC 430, referred to.
4. 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 G
vested in the person concerned. The law operating in this behalf is no longer
res integra. [Para 39] (917-D]
.....
Howrah Municipal Corpn. and Ors. v. Ganges Rope Co. Ltd. and Ors.,
[2004] l SCC 663, union of India and Ors. v. Indian Charge Chrome and
H
902
SUPREME COURT REPORTS
(2007) 6 S.C.R.
A Anr., (1999) 7 SCC 314, S. B. International Ltd. v. Asstt. Director General of
Foreign Trade, [ 19961 2 SCC 439, Ku/deep Singh v. Govt. of NCT of Delhi,
12006] 5 SCC 702 and West Bengal etc. v. Terra Firma Investment & Trading
Pvt. Ltd. etc., 1199511 SCC 125, referred to.
Director of Public Works v. Ho Po Sang, (1961) AC 901: 1196112 All
B ER 721, referred to.
Lakshmi Amma v. Devassy, (1970) KL T 204, cited.
Live Oak Resort {P) Ltd. and Anr. v. Panchgani Hill Station Municipal
Council and Anr., 12001] 8 SCC 329 and M.C. Mehta (Badkhal and Sura}
C Kund Lakes Matter) v. Union of India and Ors., (19971 3 SCC 715,
distinguished.
T. Vijayalakshmi and Ors. v. Town Planning Member and Anr., 12006] 8
sec 502, held inapplicable.
D
5. Section 247 of the 1994 Act 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, Lut 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
E days has elapsed from tht date of filing of application, the same by itself would
not attract the legal fiction contained in Section 247 of the 1994 Act. 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 :if the
original application, when the building plans had been returned to the applicant
F for 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 the restriction would not apply despite the deeming
provision. A legal fiction, as is well-known, must be construed having regard
G to the purport and object of the Act for which the same was enacted.
[Paras 36, 47 and 48] [916-D, E; 919-G-H; 920-A-B)
lshikawajma-Harima Heavy Industries Ltd v. Director of Income Tax,
;
'
Mumbai, (2007) 1 SCALE 140 Para 36, relied on.
,..
H
6. Furthermore, since special regulations have been framed in the town
COMMNR. OF MUNICIPAL CORPN., SHIMLA v. PREM LATA SOOD [S.B. SINHA,J.] 903
)
-c<
of Shim la, the core area as provided for in the regulation is required to be A
. \
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 tl>e ecology. Such regulations have been framed in public interest.
Public interest, as is well-known, must override the private interest.
[Para 53! (921-E-F] B
Friends Colony Development Committee v. State of Orissa and Ors., AIR
(2005) SC I para 22, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2525 of2007.
From the Final Order and Judgment dated 16.8.2005 of the High Court C
ofHimachal Pradesh at Shimla in C.W.P. No. 1642/2002.
Anil Nag for the Appellant.
A.K. Ganguly, Sr. Adv., K.V. Vishwanath, Bamali Barsak and Rajesh
Srivastava for the Respondents.
D
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed against the judgment and order dated 16.08.2005 E
passed by a Division Bench of the High Court ofHimachal 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 F
pursuant to Annexures-PA, PB, PC & PG in a time bound
schedule;
(ii) That the impugned Annexures-PD, PE, PF & PH, dated 24.3.1998,
1.9.1999, 6.6.2000 & 8.2.2002 respectively may be quashed and
set aside";
G
was allowed.
3. The State ofHimachal 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 H
904
SUPREME COURT REPORTS
(2007) 6 S.C.R.
A 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
B acquisition of land required for the purpose of the development plans and for
purposes connected with the matter aforesaid.
c
D
4. 'Development' has been defined in Section 2(g) of the 1977 Act to
mean:
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;"
'Planning area' has been defined in Section 2( o) of the 1977 Act to
"planning area" means any area declared to be planning a~ea under
this Act;"
5. Section 3 of the 1977 Act provides for appointment of a Director or
E 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-sec.!_ion (3) whereof reads as under :
F
"(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."
G
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
H made after consultation with the local authority concerned. Sub-section (5) of
I
COMMNR.OF MUNICIPAL CORPN., SHIMLA r. PREMLATASOOD[S.B SINHA,J.] 905
Section 17 mandates the State Government to publish the interim development A
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 B
planning area shall, as from the date of publication in the official
Gazette ofa notification bythe 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 C
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 D
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.
JO. 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 E
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 repugnancy exists or arises with the provisions F
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 :
G
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 H
906
SUPREME COURT REPORTS
(2007] 6 S.C.R.
A authority as well the State Government.
B
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 iocal 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
C 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
D 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:
E
F
"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 (I) an'.! 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
G grant or refuse to grant such sanction, which is relevant for our purpose,
reads as under :
H
"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
t
_,
COMMNR. OF MUNICIPALCORPN.,SHIMLA "· PREMLATASOOD[SB SINHA,J.J 907
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 :-
(a) that the building or work, or the use of the site for the building
A
or work or any of the particulars comprised in the site plan, ground B
plan, elevation, section or specification would contravene the
provisicns 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 C
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 D
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 Corp,1ration;
(f) that the site of ;he building or work does not abut on a street E
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
F
(h) that a building for habitation, d~es 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 G
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 H
A
908
SUPREME COURT REPORTS
(2007] 6 S.C.R.
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
B
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
c
D
E
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 :
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 (I), 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
F
to contravene any of the provisions of this Act or any other law or
of any bye-law made thereunder.
G
H
(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
t
COMMNR. OF MUNICIPAL CORPN., SHIMLA "·PREM LATA SOOD [S.B. SINHA, J.] 909
a work within the period specified in sub-section (3), the person A
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 B
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 C
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 D
intimation under sub-section (5), cause ins.pection 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.
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(7) The persons making the inspection under sub-scection (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 F
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 G
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."
I 6. We may, however, notice that a similar Act which was then prevailing,
namely, Himachal Pradesh Municipal Corporation Act, 1979 was repealed.
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SUPREME COURT REPORTS
[2007] 6 S.C.R
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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 ol
Shim la. They filed an application for grant of planning pennission to the Town
and Country Planning Department on 27.06.1994. Such permission was
approved by the Government ofHimachal Pradesh by an order dated 16.01.1998.
B
18. The Executive En~ineer of Respondent No.6 herein granted
permission under sub-section '· ) 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
C provisions of the 1994 Act and building bye-laws framed thereunder was
submitted by Respondent No. I 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.
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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 Shim la 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, 3 18,
321, 322, 320, 310, 311, 313, 312, 319 at Talpat Cottage, Shimla Sanction
has been asked for.
\
COMMNR OF MUNICIPAL CORPN, SHIMLA" PREM LATA SOOD lS.B. SINHA,.!.] 911
Hence the map with the following observations has not been A
considered for sanction :
I.
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.
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3.
The proposal for machine room structure is not as per M.C. byelaw.
4.
Report from ME has not been received.
5.
Ground floor plan for upper Block should be shown separately
with the boundary lines.
c
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)911 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.
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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 E
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. p
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 ac~ordance with
the Rules and Regulations."
23. Before, however, the Corporation could consider the Respondents' G
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 subsections ( 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
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912
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A 31.03.1979 and is to the following effect :
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"(a) All Private as well as Government construction are totally
banned within the core area of Shim la 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 a road starting from
Ambedkar Chowk on the north side, joining the chowk of the Indian
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Institute of Advance Studies and following the road joining Summer
Hill post office and via upper road to Boileaugan j Cho wk 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
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of the following :
"
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
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J0.4.2(x)(a), the following was substituted :
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"10.4.2 (xXa), 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."
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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
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by the Heritage Advisory Committee and permitted by the State
. '
COMMNR. OF MUNICIPAL CORPN., SHIMLA r. PREM LATA SOOD [S.B. SINHA, J.] 9JJ
Government shall take place in the Heritage Zone, which shall be A
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;
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(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 oflndia, Scandal Point, Shimla Club and
Oak Over."
26. In view of the aforementioned amendments in the regulation declaring C
'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 D
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 E
relation to the core area and heritage zone would not apply in 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 RI/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 tum shall
pass his orders within two weeks thereafter.
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SUPREME COURT REPORTS
(2007) 6 S.C.R.
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(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 resubmined 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 CorporationB
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
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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
D
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 ~anctioned
in terms of the 1977 Act would be binding on the appellant and,
E
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
F
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
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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
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applicants who were similarly situated, there is absolutely no
COMMNR. OF MUNICIPAL CORPN., SHIMLA v PRl:M LATA SQ9D [SB. SINHA,JJ 915
reason as to why the respondents should have been A
discriminated against.
(vi) Appellant being a local authority was bound to act fairly, which
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 B
issued by the State under Section 1 7 of the 1977 Act.
(vii) Unnecessary delay was caused by the appellant-Corporation in
dealing with the respondents' a))plication 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 C
to have been extended.
32. In our opinion, the 1977 Act 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 D
pr'.lvides for preparation of development plans including the internal
development plans. Indisputably, such development plans when made would
be binding upon the local authority.