IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.2243-44 OF 2008 (Arising out of S.L.P. (C) Nos.20346-20347/2005)

The Municipal Corpn.Shimla   ...Appellant

Versus

Gopal Mohan Aggarwal & Ors. ...Respondents

O  R  D  E  R

Leave granted.

These  appeals  are  directed  against  the  judgment  and  order

dated 4.8.2005 passed by a Division Bench of the High Court of Himachal Pradesh at

Shimla directing as under:

"  Part  'D"  of  Section  395  concerns  the  bye-laws  relating  to buildings. Part 'D' has 23 clauses. We have very carefully gone through the aforesaid 23  clauses  of  Part  'D'  of  Section  395 and find  that  in  none  of  these  clauses  is  it anywhere provided that a bye- law can be made with respect to serving any fresh notice of  any duration after the deemed sanction has come into being in terms of Section 247(1) of 1994 Act. Actually the legislative intent has clearly been manifested in  Section  247(1),  it  being  that  once  the  deemed  sanction  comes  into  being  the beneficiary of such deemed sanction has a right to raise construction subject only to the prohibitions and restrictions contained in sub-section(3) and (4) thereof. In the fact of this right having accurued in favour of a beneficiary, it cannot be diluted or taken  away  unless  the  plenary  enactment  itself  provides  for  any  such  further limitation. In the absence of any enabling provisions thereof in Section 395, bye-law 9.1 cannot be said to be in conformity with Section 395 or any other provisions of 1994 Act. That being the situation therefore we have no manner of doubt that there was no requirement in law, over and above those contained in sub-sections (1),(3) and (4) Section 247 of 1994 Act for the petitioners to have served any other, further or additional notice upon the Commissioner. Actually we go as far as to hold that Bye- law 9.1. is ultra vires Section 395 of 1994 Act.

Mr.M.S.Chandel,  learned  Advocate  General  submits  that  since  the building falls in the heritage zone as per  

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notification dated 5.6.2003 the petitioners were required to submit their plans strictly in accordance with the regulations applicable and therefore the petitioners were not entitled to raise constructions beyond two storeys, unless specifically permitted. This

argument also is devoid of any merit because Section 247 in so far as the benefit of deemed sanction is concerned does not draw any distinction between a heritage zone or any other zone. Similar is the case with Section 31 of 1977 Act. This legal aspect apart, the parties are strongly at variance about the fact whether the area in question falls  in  the  heritage  zone or  not.  There  is  dispute  between  the  parties  about  this factual  aspect  whereas  the  respondents  aver  that  the  area in question falls  in  the heritage zone, the petitioners contention is that it is in the restricted zone."

One of the questions which arise for consideration is as to whether 'deemed

sanction' of building plans as contemplated under Section 247 of Himachal Pradesh

Municipal  Corporation  Act  would  be  applicable  in  respect  of  the   constructions

within the heritage zone.  

This  question  has  been  gone  into  by  this  Court  in  Commissioner  of

Municipal Corporation, Shimla Vs. Prem Lata Sood and Ors. - 2007(7) SCALE 737.  

We  are,  therefore,  of  the  opinion  that  the  interest  of  justice  would  be

subserved if the impugned order is set aside and the High Court is requested to take

up the hearing of the writ petition itself as expeditiously as possible.

Before us a counter affidavit has been filed on behalf of respondent Nos. 1

and  2 affirmed by  Shri  Gopal  Mohan Aggarwal  stating  that  the  High  Court  has

deleted the names of respondent Nos.1 and 2 and in their place names of Vijay Kumar

Aggarwal and Vinod Kumar Aggarwal have been substituted.

An application has also been filed by the appellant herein to the said effect.

Keeping in view the limited order that we are passing, we are of the opinion that as

the  

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aforementioned Vijay Kumar Aggarwal and Vinod Kumar Aggarwal  

being also party before the High Court, they would indisputably be entitled to raise

all contentions before the High Court.

The appeals are allowed to the aforementioned extent.

......................J.       [S.B. SINHA]

......................J.       [LOKESHWAR SINGH PANTA]

New Delhi,

March 28, 2008.

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