Judgment:
Sanjay Karol, J.
1. Petitioners as tenants have been residing in Building No. 9, Alley No. 12, Lower Bazar, Shimla-171001, H.P. for the last more than 50 years. On 20th December, 2003 the present petition was filed alleging that private respondents No. 4 and 5, in front of the tenanted premises have started construction of a new building in violation of the existing law. Their objections and representation dated 31st January, 2003 and 4th February, 2003, made to Municipal Corporation-respondent No. 1 remain unattended and, therefore they have knocked the doors of the Court with the following prayers:
1. To direct the respondents No. 1 to 3 to discharge their statutory duties and ensure the compliance of the provisions of the Interim Development Plan for Shimla Planning Area i.e. Annexure:P-1 supra;
2. To direct the respondents No. 1 to 3 to ensure the compliance of the notification dated 22.8.2002 and notification dated 22.11.2002 Annexure: P-7 and P-7A supra ;
3. To direct the respondents No. 1 to 3 not to allow the respondents No. 4 and 5 to raise construction in violation of the aforesaid provisions of the Interim Development Plan for Shimla Planning Area, Annexure: P-1 supra; and Anexure: P-7 and P-7A supra;
4. To direct the respondents No. 1 to 3 to take appropriate steps while ensuring the compliance of the Regulation No. 10-4-1-2(x) Annexure : P-1 as amended vide the notification dated 22-8.2002, Annexure : P-7 and P-7A supra and to demolish the un-authorized construction raised by the respondents No. 4 and 5 and to restrain the respondents No. 4 and 5 from raising the construction of their building No. 79/1 Lower Bazar, Shimla in violation to the provisions of the Town and Country Planning Act, 1977, H.P. Municipal Corporation Act, 1994 and the Interim Development Plan for Shimla Planning Area;
5. To call for the entire relevant records of the case;
6. To award the cost of this writ petition in favour of the petitioners; and
7. To pass any other and further order(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case and in the interest of justice in favour of the petitioners.
2. The petition is resisted by the private respondents No. 4 and 5, on various grounds, inter alia, locus, delay and laches and misrepresentation of material facts. On merits, it is common case of all the respondents, as borne out from the record that in consonance with the provisions of the law. The respondents' application for addition and alteration of the existing structure was allowed by the Municipal authority on 27th March, 1993 on the following terms:
Commissioner Order No. 45 AP.
Dr. Shashi Sood, and Monika Sood, 79/1 Lower Bazar, Vidya Clinic has submitted proposed addition and alteration map in this department for approval.
There is no objection in the submitted map as per Himachal Pradesh Municipal Corporation Shimla Building Bye-Laws but the construction should be done as per the structural design. In addition to this you are allowed to construct the building in a width of 6.62 mtrs. only.
3. Thereafter, on annual basis the permission was extended vide various extension letters dated 20th July, 1995, 10th December, 1996 and 26th March, 1998 and last such extension was accorded on 5th October, 2002, whereby the petitioners were allowed to complete the construction within a period of one year, subject to the condition laid in the original sanctioned letter dated 27th March, 1993.
4. The representations and the complaint filed by the petitioners were considered and dropped vide Municipal Commissioner's order dated 3rd January, 2004 on the ground that the construction being raised was in accordance with the approved plan.
5. Admittedly the sanction in question is governed by the provisions of the Municipal Corporation Act, 1994 (hereinafter referred to as the 'Municipal Act:'); the H.P. Town and Country Planning Act, 1979 (hereinafter referred to as the 'Planning Act') and the Interim Development Plan for Shimla Planning Area (hereinafter referred to as the 'Development Plan').
6. The extent and the scope of the 'Municipal Act,' the 'Planning Act' and the 'Development Plan' has been considered in extenso by this Court in CWP No. 279 of 2005 titled as Sh. O.P. haul v. State of H.P. and Ors. and also Apex Court in Commissioner of Municipal Corporation of Shimla v. Smt. Prem Lata Sood reported in : 2007(7)SCALE737 ).
7. The challenge to the respondents' action is on the ground that as on the date of the last extension granted by the Municipal authorities, the law with regard to the development and construction of the building stood changed by virtue of the notifications dated 11th August, 2000 and 22nd August, 2002 issued under the 'Development Act', therefore no extension based on the old sanction could have been granted.
8. The learned Counsels for the respondents have argued that the petitioners' case is not of erection of a new building but, however, addition/alteration on the already existing structure and therefore the petitioners' application for extension had to be considered and allowed on the basis of laws existing as on the date of the original sanction.
9. The relevant portion, necessary for adjudication of the writ petition, of both the notifications is reproduced as under:
Dated: 11th August. 2000.
(a) All Private as well as Government constructions are totally banned within the core area of Shimla Planning Area. Only reconstruction 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.
(Emphasis supplied)
Dated: 22nd August. 2002.
(a) For regulation 10.4.1.2(x)(a), the following shall be substituted, namely:
10.4.1.2(x) (a) CORE Area.-(i) New construction in core area shall be allowed in respect of residential buildings up to maximum two storeys and ancillary uses thereto with the prior permission of the State Government:
Provided that in case of re-construction of old structure 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.
(Emphasis supplied)
10. It is admitted case of the parties that the premises in question fall within the core area. In terms of the aforesaid notification, new constructions of residential building could be allowed up to maximum two storeys and re-construction of old structure or building could be permitted subject to the condition that the plinth area and number of storeys on old lines would remain same as were in existence earlier.
11. From the affidavit filed by the Municipal Corporation-respondent No. 1 it is evident that the sanction was accorded for addition of the third storeys on the existing two storeys.
12. As per the affidavit filed by respondents No. 4 and 5, the construction could not be completed in time as the petitioners' landlord on 24th February, 2003 had filed a Civil Suit restraining them from raising the construction which eventually was compromised on 22nd December, 2003 and only thereafter the old structure was replaced by the new structure which was constructed and finished in January, 2004.
13. It is evident that either on 26th March, 1998 or 5th October, 2002, when the last two extensions were granted by the Municipal Corporation, the respondents had not commenced construction/alteration of the building as per the sanctioned plan.
14. The sanction in the present case was issued under Section 244 of the Municipal Act by Municipal Corporation-respondent No. 1. No permission whatsoever was required to be obtained or accorded under the provisions of the 'Planning Act' or 'Development Plan'.
15. However, sanction to erect a building under Section 243 or make additions or repairs of a building under Section 244 necessarily have to be in accordance with the provisions of the 'Development Plan' prepared under the provisions of the Development Plan. It is quite evident from the following observations made by the Apex Court in Smt. Prem Lata Sood's case (supra):
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 (s) of Sub-section (2) of Section 246 in no uncertain terms restrict the power of the appellant-Corporation to grant sanction for erection, inter alia, for development of an area by way of erection of a building or otherwise, not only if the same is not in conformity with the building bye-laws, but also if it contravenes any other law or rules operating in the field.
35. The 1977 Act is one of such Act. As noticed hereinbefore, the provisions thereof are binding upon the local authority. Once the provisions thereof are held to be binding, the law made by the State by way of subordinate legislation in the form of the regulations and/or notifications issued under Sub-sections (4) and (5) of Section 17 of the 1977 Act would also be binding. Indisputably, the Municipal Corporation would not have any authority to grant any sanction in violation thereof.
16. Therefore the law existing as on the date of the consideration of the application for extension which in the present case was 5th October, 2002, necessarily had to be considered and extension accorded in terms thereof.
17. It is not the case of either of the respondents that the process of construction, alteration or completion had commenced within the period stipulated in terms of the sanction date i.e. 26th March, 1998. No material has been placed on record to show as to what transpired between 26th March, 1998 and 5th October, 2002. The addition/alteration as per original sanction granted on 27th March, 1993 was statutorily required to be commenced within the statutory period of one year so provided under Section 247(3) of the Municipal Act. The power of the Commissioner to grant extension, as stipulated under Section 251 of the Municipal Act is not in dispute. What has been disputed is the action of the Commissioner to accord such sanction in violation of the existing laws relevant at the time of the consideration of the application for extension.
18. In the instant case the construction not having commenced and no extension having obtained within the period of one year the private respondents had to give a notice under Section 244 of the 'Municipal Act' and the case had to be decided as such. This is quite evident from Section 244 read with Section 247(3) of the Municipal Act. It is true that the notification dated 22nd August, 2002 does not have retrospective effect, nor does it take away the right of a person in whose favour the permission stands granted prior to the issuance of the notification. But it is equally true, that as on this date the private respondents had not commenced the construction in accordance with the prescribed time frame, therefore fresh permission could have been accorded only on the basis of existing law. The extensions granted after 22nd August, 2002 are therefore contrary to the prevalent law.
19. The learned senior Counsel for the private respondents has argued that the petitioners' case is not covered by the notification dated 11th August, 2000 or 22nd August, 2002. The notification dated 11th August, 2000 stood substituted by the subsequent notification dated 22nd August, 2002 and the said notification in any case, being the law had to be applied for new constructions/sanctions. The issue is more about application than interpretation of these notifications.
20. It is true, as has been contended by the learned Counsel for the respondents, in opposition to the submission made by the learned Counsel for the petitioners, that the facts of Smt. Prem Lata Sood (supra) are not identical to the facts of the present case. But, however, the reliance on Smt. Prem Lata Sood is only for the purpose of true construction of the relevant provisions of the statute in issue. The learned Counsel for the respondents have themselves placed strong reliance on para-49 of the said judgment to contend that their case is identical to the one in which the Apex Court has carved out an exception. I am afraid it is not so. In the referred case Live Oak Resort (P) Ltd. and Anr. v. Panchgani Hill Station Municipal Council and Anr. : AIR2001SC3478 , the construction had already commenced as per the rules prevalent at that time.
21. The submission made by the respondents that the petition should be dismissed on the ground of delay and laches needs to be rejected. The petitioners brought the matter to the notice of the Municipal authority on 31st January, 2003 and 4th January, 2003 but the respondent-Corporation did not take any conclusive action, therefore, they were forced to file the present writ petition before this Court on 20th December, 2003.
22. It is true that the petitioners have made factually incorrect averments in the petition, obviously with the intention of mis-leading this Court and obtaining interim order in their favour. It has come on record that the private respondents' construction stood almost completed on the date when the petition was filed. Therefore, the petitioners have deliberately misled by falsely averring that the respondents have started construction of a new building. The petitioners filed the petition only after the proceedings initiated by the landlord were compromised. This only shows that the petitioners' action is not bonafide but, however, I am not inclined to dismiss the petition on this ground as larger public interest is involved and in view of Articles 141 and 144 'of the Constitution of India every authority is duty bound to comply with the directions issued by the Apex Court from time to time. In Smt. Prem Lata Sood (supra) the Apex Court has held as under:
Furthermore, since special regulations have been framed in the town of Shimla, the core area as provided for in the regulation is required to be protected. The area in question has been declared to be a heritage zone, and hence no permission to raise any construction can be issued, which would violate the ecology. Such regulations have been framed in public interest, Public interest, as is well-known, must override the private interest. (See Friends Colony Development Committee v. State of Orissa and Ors. : AIR2005SC1 ).
23. It has also been argued that the petitioners did not disclose to the Court that their complaint made to the Municipal authorities stood disposed of. The contention needs to be rejected on the ground that the complaint was dismissed only on 3rd January, 2004, subsequent to the filing of the present petition.
24. Respondent No. 1-Corporation is directed to proceed in accordance with law.
25. The Commissioner, Municipal Corporation is also directed to look into all cases where construction had not commenced but extensions were granted on the basis of old sanctions, in violation of the notification dated 22nd August, 2002 or any subsequent notification and the provisions of the Interim Development Plan and take action in accordance with law. The respondent No. 1 shall file an action taken report within a period of six months from today.
26. The writ petition is therefore accordingly disposed of with the aforesaid observations.