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TMI Blog2007 (5) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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; '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound 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 Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctioned, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted 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. Hence the map with the following observations has not been considered for sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 2007 (1) SCALE 140 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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