Himachal Pradesh High Court
Surinder Singh vs State Of Himachal Pradesh And Others on 11 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 1006/2008
Reserved on : September 27, 2016
Decided on : November 11, 2016
.
Surinder Singh ................Petitioner
Versus
State of Himachal Pradesh and others ..........Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
of
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For the petitioner : Mr. G.C. Gupta, Senior Advocate with Mr.
Surender Thakur, Advocate.
For the respondents : Mr. Rajat Chauhan, Law
rt Officer, for
respondents No.1 to 3.
Mr. Hamender Singh Chandel, Advocate,
for respondent No.4.
Sandeep Sharma, Judge:
Instant petition has been filed against order dated 18th March, 2008 passed by the Additional Chief Secretary (TCP) on an appeal under Section-32 of the HP Town and Country Planning Act, 1977 preferred by the petitioner against order dated 29.12.1997 of the Director, Town and Country Planning, Himachal Pradesh, whereby proposal of the petitioner for construction of three storeyed commercial building over existing single storey + parking and addition in ground floor on Khasra Nos. 281, 284, 288 to 310, 312 to 318, at Bright Land, Shimla-3, was rejected being in banned/core area of Shimla Planning Area and on the ground that said proposed construction will obstruct ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 2 the vision and create more congestion in the already developed area.
2. However, this is second round of litigation between .
the parties as the petitioner has already approached this Court by filing CWP No. 398 of 1997, which was disposed of on 24.12.2007. The petitioner had filed aforesaid CWP against decision dated 1.3.2000, whereby appeal filed by the petitioner of against order dated 29.12.1997 passed by Director, Town and Country Planning was rejected by respondent No.1. While disposing of CWP No. 398 of 1997, this Court quashed and set rt aside order dated 1.3.2000 and observed that order dated 1.3.2000 was not a speaking order, as such respondent No.1 was directed to pass a speaking order on the appeal of the petitioner within three months of the passing judgment dated 24.12.2007.
3. In pursuance to above, Additional Chief Secretary (TCP) passed a detailed order dated 18.3.2008, thereby rejecting the appeal of the petitioner, against which now the instant petition has been filed.
4. Matrix of the case, as emerge from the petition, is that the mother of petitioner namely Shanti Devi applied on 26.12.1994 seeking planning permission for the construction of the commercial building, as noticed above. As per the petitioner, ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 3 he/his mother did not receive any communication till 22.4.1996, when letter was written to the Executive Engineer, Town and Country Planning. Another letter was written on 25.9.1996, .
which was received on 26.9.1996 in the office of Town and Country Planning. In between another letter dated 23.6.1995 was sent to the respondents, which too was not replied by them.
On 20.11.1996, another letter was sent by Shanti Devi for of invoking deemed sanction in her favour, on account of having received no response by her after 26.12.1994. Thereafter, on 5.5.1997a notice was sent to the Director, Town and Country rt Planning and Executive Engineer, Development Control Division No.4 through advocate, in reply to letter dated 11.3.1997, advising the respondents to withdraw letter dated 11.3.1997 and to accord sanction under deeming provision in her favour. This notice was also not replied to by the respondent. In the meantime, Shanti Devi expired, and, accordingly, the present petitioner filed CWP No. 398/1997 before this Court.
5. In reply to the averments contained in the writ petition, respondent-State put up a different case altogether. As per the reply, petitioner was intimated about the shortcomings in the proposal dated 26.12.1994 on the same date, to which the petitioner replied on 23.6.1995 that too without attending the shortcomings. Petitioner was again advised to attend to the ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 4 shortcomings, on 22.6.1996. Petitioner replied on 31.7.1996 and again failed to submit the complete documents. On 17.9.1996, again petitioner was asked to meet the observations, which was .
replied by the petitioner on 26.9.1996, again leaving some of the formalities unattended. Respondents conveyed their observations on 17.10.1996 and 11.3.1997 to the petitioner. Provisions of deemed sanction having come into play, has been denied by the of State. It is also averred that in response to the letter dated 23.11.1996 of petitioner, respondents asked petitioner to furnish original copy of revenue record on 11.3.1997. Factum of notice rt dated 5.5.1997 is not denied, however, it is averred that the same was withdrawn on 26.8.1997. Stand as taken by the respondent-State is that the plan/proposal of petitioner was rejected in view of para 10.4.1.2 of the Interim Development Plan Shimla, to avoid congestion in the area. Further objection was taken that as per proposal, the set back left in the previous plan was also proposed to be used for construction, which would lead to congestion in the area. It was also averred that the site in question fell in the banned/core area of Shimla. They have vehemently denied the stand of the petitioner that the provisions of Interim Development Plan are applicable to vacant plots only.
They also stressed that the Interim Development Plan was applicable to vacant as well as existing constructions. The main ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 5 contention of the respondent-State is that provisions of deemed sanction would not be applicable since there is continuous correspondence between the petitioner and the respondents, .
besides the fact that the petitioner never submitted a complete proposal.
6. Petitioner filed rejoinder to the reply filed by respondents No.1 to 3 and refuted the averments made by the of respondents. It is reiterated that the proposal submitted by the petitioner/ his predecessor-in-interest, was complete in all respects and further rt the petitioner attended to all the observations made by the respondents in subsequent communications. It is averred that during 23.6.1995 to 22.6.1996, for one year, there was no response/communication from the respondents rejecting/accepting the proposal of the petitioner and as such there is deemed sanction in favour of the petitioner as per para 31 of the Town and Country Planning Act.
Factum of withdrawing notice dated 5.5.1997 is denied. It is reiterated that provisions of para 10.4.1.2 of the Plan are not applicable to the existing construction. It is also stated that no obstruction of vision would take place as the area behind the proposed construction site belongs to the petitioner only.
7. During the pendency of the petition, State also placed on record additional documents i.e. copies of ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 6 letters/communications during the period 26.12.1994 to 29.12.1997 in order to show that correspondence has taken place between the petitioner and the office of Town and Country .
Planning during this period and there was no period, when there was no response given by the department to the communications received from the petitioner.
8. During the pendency of petition, Municipal of Corporation, Shimla was arrayed as respondent No.4. The Corporation also filed is reply to the petition stating therein that the petitioner had submitted a proposal thereby exceeding the rt maximum floor area i.e. 1982.18 sq metres as against the maximum admissible area of 1074.48 sq metres. It was also averred that these facts had been concealed in the petition and as such same could not be dealt in the order passed by respondent No. 3 and respondent No.1. Deemed sanction in favour of petitioner was denied.
9. Petitioner filed rejoinder to the affidavit/ reply filed by Municipal Corporation, Shimla reiterating the stand taken in the petition and denying the averments made in the reply affidavit by the Municipal Corporation, Shimla. Factum regarding exceeding floor area was denied.
10. Interestingly, respondent State filed an application being CMP No. 8517/2014 thereby seeking amendment of reply ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 7 on the ground that some relevant documents could not be filed during earlier reply. Paras No. 3 to 6 of reply were amended.
Reply to the same was also filed. Yet another application was .
filed by the State for placing on record certain other documents.
11. Mr. G.C. Gupta, learned Senior Advocate duly assisted by Mr. Surender Thakur, Advocate, vehemently argued that the impugned order dated 18.3.2008, passed by the of Additional Chief Secretary (TCP), while disposing of the appeal under Section 32 of the Town and Country Planning Act, 1977, is not sustainable in the eyes of law, as the same is not based on rt correct appreciation of facts as well as provisions of law and same deserves to be quashed and set aside. He further stated that the order passed by respondent No. 3, which was further upheld by respondent No.2, is against the provisions of Town and Country Planning Act, 1977 because neither the provisions of Para 10.4.1.2 of Interim Development Plan under the Act ibid are applicable in the present case nor the ground, on which plan has been rejected by respondent No.3 falls in the ambit of the Act ibid. With a view to substantiate his aforesaid argument, he forcefully contended that since there was already a construction, qua which planning permission was sought, it was only a addition to existing construction. There is no force in the findings returned by the authority below that there would be ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 8 congestion in the area in case permission is granted to the petitioner. As per Mr. Gupta, provisions of Interim Development Plan are applicable only in case planning permission is sought .
for construction on vacant plot and in this case, even no permission was required from State Government. Final authority for grant of permission vested with respondent No.2. Mr. Gupta, further contended that respondent No.2 while passing impugned of order failed to take note of the deeming provisions as contained in Section 31(5) of the Act and wrongly arrived at conclusion that provisions of deemed sanction are not applicable in the present rt case. As per Mr. Gupta, besides the provisions contained in Section 31 of the Town and Country Planning Act, there is no other provision for grant/refusal of permission with respect to applications received under Section 30 of the Act, irrespective of the fact that recommendation is to be sent to respondent No.1.
With a view to substantiate his aforesaid argument, Mr. Gupta invited attention of this Court to letter dated 26.12.1994, whereby predecessor-in-interest of the petitioner applied to respondent No.3 and submitted plan seeking planning permission for the construction of three stories over existing structure (single storey) plus parking, to demonstrate that plan, complete in all respects, was submitted with the authorities for according approval but the authorities failed to acknowledge ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 9 aforesaid letter till 22.4.1996, when she sent another letter to the Executive Engineer, TCP to know about the fate of the plan submitted by her. Since the authorities failed to take action on .
her plan, same would be deemed to have been sanctioned as per provisions of Section 31 (5) of the Act immediately following the expiry of six months. Mr. Gupta, with a view to substantiate his argument that no communication after submission of plan vide of letter dated 26.12.1994 was ever sent to the petitioner, made this Court to travel through various letters placed on record by way of annexures P-2 dated 22.4.1996, P-3 dated 26.9.1996, P-4 rt dated 20.11.1996 and P-5 notice dated 5.5.1997, to demonstrate that since there was no response by the authorities pursuant to submission of plan vide letter dated 26.12.1994, plan submitted by the predecessor-in-interest of the petitioner was bound to be sanctioned in terms of provisions of Section 31 (5) of the Act.
While concluding his arguments, Mr. Gupta made this Court to peruse various letters purportedly sent by the petitioner to the respondents requesting therein to accord sanction to the plan as submitted by her vide letter dated 26.12.1994. Mr. Gupta, strenuously argued that since there was no communication from the side of respondents from 23.6.1995 to 22.6.1996, for more than the stipulated period of six months, plan submitted by the predecessor-in-interest of the petitioner is deemed to have been ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 10 sanctioned as per Section 31 (5) of the Act. He placed reliance on judgment passed by Hon'ble Apex Court reported in (2001) 8 SCC 329 and judgment of this Court reported in AIR 1983 .
Himachal Pradesh 81. Mr. Gupta, further stated that bare perusal of impugned order passed in appeal by the appellate authority nowhere suggests that documents placed on record by the petitioner were ever taken into consideration by the appellate of authority while disposing of the appeal, which clearly suggests that impugned order is not based upon correct appreciation of material documents made available on record by the petitioner, rt as such, same deserves to be quashed and set aside.
12. Mr. Rupinder Singh Thakur, Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, supported the order passed by the appellate authority. While referring to the impugned order dated 18.3.2008, passed by Additional Chief Secretary (TCP), Mr. Thakur stated that same is based on correct appreciation of documents adduced on record as well as law and as such there is no illegality or infirmity in the same. Mr. Thakur, with a view to refute the contentions put forth by the petitioner that no communication after submission of plan by Shanti Devi, predecessor-in-interest of the petitioner, was sent to the petitioner by the respondents for more than six months, as a result of which plan submitted was deemed to have ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 11 been sanctioned, invited attention of this Court to various documents placed on record by the respondent-State to demonstrate that letter dated 26.12.1994 was suitably replied .
and petitioner was advised to attend all the observations in a time bound manner to enable authorities to proceed ahead to sanction plan in accordance with law. Mr. Thakur, with a view to substantiate his aforesaid contention also invited attention of of this Court to various documents placed on record suggestive of the fact that after submission of plan vide letter dated 26.12.1994, respondents repeatedly requested the petitioner to rt attend to other observations made in various letters. Mr. Thakur, specifically invited attention of this Court to communications dated 17.10.1996 (annexure R-1/H and annexure R-1/J, addressed to the petitioner, wherein she was advised to make available structural design, to demonstrate that there is no force in the submissions having been made by the petitioner that after submission of plan dated 26.12.1994, no communication was ever addressed to the petitioner. Mr. Thakur, on the basis of aforesaid documents vehemently argued that since at no point of time, petitioner submitted plan complete in all respect, there was no occasion, whatsoever, for the authorities to take action in the matter. Mr. Thakur, while inviting attention of this Court to impugned order dated 18.3.2008, contended that bare perusal of ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 12 same suggests that order is reasoned one and same has been passed after due appreciation of the facts. He specially stated that provisions of para 10.4.1.2 of Interim Development Plan .
under Town and Country Planning Act, 1977 were rightly applied in the case of petitioner because if plan submitted by petitioner is seen vis-à-vis spot, there would be congestion as has been defined in the provisions of para 10.4.1.2 of Interim of Development Plan. He also refuted the claim of the petitioner that no permission is required from State Government and provisions of Interim Development Plan are applicable to vacant rt plots and not to existing construction. In this case, he stated that provisions are applicable to the construction whether on vacant plots or on existing constructions. In the aforesaid background, Mr. Thakur, while supporting the impugned order, prayed for dismissal of the petition.
13. Mr. Hamender Chandel, Advocate, appearing for Municipal Corporation, Shimla also supported the impugned order passed by the appellate authority and stated that the petitioner had submitted proposal thereby exceeding the maximum floor area i.e. 1982.18 sq metres as against admissible area of 1074.48 sq metres and as such same was rightly not accepted by the authorities. He also stated that at the time of furnishing plan with the Department, petitioner concealed ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 13 material facts and proposal was not furnished as per position existing on the spot. Mr. Chandel, further argued that since there are ample documents on record suggestive of the fact that .
letter dated 26.12.1994 vide which plan was submitted, was suitably replied by the Town and Country Planning, there is no question of application of Section 31 (5) of the Act.
14. I have heard the learned counsel for the parties and of gone through the record.
15. After carefully perusing the pleadings of the parties as well as submissions having been made by respective counsel, rt following questions arise for determination by this Court:
1. Whether plan submitted by the predecessor-in-
interest of the petitioner on 26.12.1994 seeking planning permission for construction of three storied building over the existing construction (single storey) plus parking in the ground floor of Khasra Nos. 281, 284 and 288 to 310 and 312 to 318 at Bright Land Hotel, Shimla, is deemed to have been sanctioned in terms of Section 31 (5) of the Town and Country Planning Act, 1977?
2. Whether impugned order dated 18.3.2008 passed by Additional Chief Secretary (TCP) is based on correct appreciation of documents as well as law on the point?
::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 1416. Before adverting to merits of the case, it would be appropriate to reproduce Para 31(5) of the Himachal Pradesh Town and Country Planning Act, 1977, as under:
.
Grants or refusal of permission. 31(5) If the Director does not communicate his decision whether to grant or refuse permission to the applicant within two months from the date of receipt of his application, such permission shall be deemed to have been of granted to the applicant on the date immediately following the date of expiry of two months:
rt Provided that in computing the period of two months the period in between the date of requisitioning any further information or documents from the applicant and date of receipt of such information or documents from the applicant shall be excluded.
17. Para 10.4.1.2(iii) of the Interim Development Plan, Shimla reads as under:
No building or other structure thereafter be erected or re-erected or materially altered: -
1. to exceed the height;
2. to accommodate or house a greater number of families;
3. to occupy a greater percentage of plot area;
4. to have narrower or smaller rear years, front yards, side yards, or other open spaces ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 15 Other than required or any other manner contrary to provisions of these regulations.
.
18. Perusal of Section 31 (5) suggests that on receipt of application under Section 30, Director, TCP may either grant permission unconditionally or grant permission subject to such condition as deemed necessary in the circumstances or refuse of permission. Section 31(5) further suggests that further order granting permission subject to condition or refusing permission shall state grounds for imposing such condition or such refusal.
rt But most importantly, Section 31 (5) provides that if the Director does not communicate his decision whether to grant or refuse permission to the applicant within two months (amended) from the date of receipt of application, permission shall be deemed to have been granted to the applicant on the date immediately falling on the expiry i.e. two months, provided that in computing period of two months, period between the date of requisitioning of any further information or documents from the applicant and date of receipt of same from applicant, would be excluded.
19. In the instant case, in nutshell, the case of the petitioner is that his predecessor-in-interest namely Smt. Shanti Devi submitted plan to respondent No.3 vide communication dated 26.12.1994 seeking planning permission for construction ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 16 of three storied building over the existing structure (single storey + parking in ground floor) of the property known as Cosy Nook Estate, Shimla-3, which was diarized as No. HIM-TP-case-471.
.
Petitioner has placed on record drawings submitted by Smt. Shanti Devi on 26.12.1994. As per the petitioner, his predecessor-in-interest did not receive any communication till 22.4.1996 and as such she was compelled to send another of communication to the Executive Engineer, TCP on 22.4.1996 i.e. annexure P-2. Perusal of aforesaid communication suggests that the petitioner had submitted case for planning permission for rt addition to existing building on 26.12.1994 and certain points were raised but the fact remains that the same were attended by Smt. Shanti Devi and submitted in the office of TCP on 23.6.1995. Since one year had passed after re-submission of plan on 23.6.1995, Smt. Shanti Devi vide letter dated 22.4.1996, claimed that permission shall be deemed to have been granted to the petitioner immediately on expiry of six months in terms of Section 31 (5). But perusal of annexure P-3 suggests that communication dated 25.9.1996 placed on record by the petitioner itself suggests that the respondent-department had called for structural designs from Smt. Shanti Devi because, admittedly, all these letters suggest that petitioner vide communication dated 23.6.1995 had informed the respondents ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 17 that structural designs would be submitted in the department after approval of the Government is conveyed. Further, this letter suggests that structural designs were submitted vide .
communication dated 25.9.1996. It would be relevant to reproduce letter dated 25.9.1996 as under:
"To The Executive Engineer, Dev. Control Division No. IV, of Town and Country Planning Department, Shimla-1(H.P.) rt Sub: Planning permission/addition and alteration to the exiting structure in Cosynook Estaet vide your First observation letter No. HIM/TP-Case Diary No. 471/94 dated 26.12.94 and your third observation letter No. HIM/TCP-D-IV/Case No. Dy. 471/98-572 dated 17.9.96.
Dear Sir, As I have already pointed out in my letter dated
23.6.95 that structural designs will be submitted in your Department after approval from the government is coveyed to us. Anyhow, I am submitting the structural designs which are enclosed herewith. All the Tatima, jamabandhi and demarcation certificate are all submitted in your office on 26.12.94 and in my site plan 600/B is already deleted which I had submitted in your office on 31.7.96 showing all setbacks. As far as the setbacks are concerned, the ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 18 building will be constructed on the existing structure where ground floor having parking lot is not to be demolished in any case.
Kindly refer to my letter dated 23.6.95. Your office .
neither raised any objection nor any rejection, infact no reply at all was received from your end. Further I also wrote a letter dated 22.4.95 sent under postal certificate requesting that my plan be sanctioned immediately, to which also no reply was received. Kindly send me the approval letter of my plans as of early as possible.
Thanking you.
Yours faithfully, rt Sd/-
Shanti Devi Encl: Structural designs.
(Total pages Twenty-six).
Recd.
Dtd.
26.9.96"
20. This Court, after perusing aforesaid communication is convinced that till 25.9.1996, plan submitted by predecessor-
in-interest of the petitioner vide letter dated 26.12.1994 was not complete in all respects and as such there was no occasion for the respondent authorities to grant sanction, if any. Perusal of annexure P-5 placed on record by petitioner suggests that legal notice was got served upon Director, TCP, through advocate ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 19 calling upon authorities to withdraw leter dated 11.3.1997, whereby Smt. Shanti Devi, predecessor-in-interest of the petitioner, was asked to furnish copies of revenue records. Since .
petitioner has not placed on record communication dated 11.3.1997, it would be apt to reproduced paras 3 to 5 of the legal notice dated 5.5.1997 as under:
"3. That no sanction or refusal was communicated to Smt. Shanti Devi with respect to the building of plan submitted by her on 26-12-1994 within a period of 6 months from the date of receipt of application seeking permission, therefore, the rt building plan was "deemed to have been sanctioned" within the meaning of Section 31(5) of H.P. Town & Country Planning Act, 1977. This fact was brought to your notice by Smt. Shanty Devi mother of my client vide her notice dated 21-11-1996 and was diarised on 23-11- 1996 in your office vide diary No. 7596.
4. That since the building plan submitted by Smt. Shanti Devi for carrying out additions/alterations in the building was "deemed to have been sanctioned", therefore, she was within her right to carry out construction.
5. That my client has received letter No.HIM/TCP/D-iv/Case No.471/96-97-1202-03 dated 11-3-1997 whereby my client has been asked to furnish copies of revenue records. It is brought to your notice that since no objection ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 20 was raised by your department within the stipulated period of 6 months from the date of submissions of the plan, therefore, the letter dated 11-3-1997 issued by you, referred to .
above, is totally uncalled for and it has been issued just to harass my client. You have no right at this stage to call upon my client to submit any documents as the plan stands already deemed sanctioned as per law."
of
21. Perusal of aforesaid averments contained in the legal notice suggests that vide communication dated 11.3.1997, rt predecessor-in-interest of the petitioner was asked to furnish revenue records but she instead of supplying the same, stated that since no objection was raised by the department within stipulated period of six months from the date of submission of plan, letter dated 11.3.1997 needs to be withdrawn.
22. Finally, respondents vide letter dated 29.12.1997, rejected the case of the petitioner for construction of three storied commercial building over existing single storey + parking, submitted by the predecessor-in-interest of the petitioner, on the ground that the proposals falls in the banned area of Shimla and proposed construction would obstruct vision and cause congestion.
23. Petitioner being aggrieved with the issuance of aforesaid rejection letter issued by the respondents ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 21 filed an appeal under Section 32 of the Town and Country Planning Act, 1977, which was also rejected. Being further aggrieved, petitioner filed CWP No. 398/1997 before this Court, .
which was decided on 24.12.2007, when this Court quashed order passed by appellate authority on 1.3.2000 and directed it to decide the appeal afresh and to dispose of the same by passing speaking/reasoned order reflecting due application of of mind. In the aforesaid background, appellate authority again decided the appeal under Section 32 of the Town and Country Planning Act, 1977 and passed order dated 18.3.2008, which is rt impugned before this Court, in the present petition.
24. This Court, with a view to ascertain correctness and genuineness of the order passed by appellate authority, examined the same, perusal whereof suggests that the respondents while refuting claim of the petitioner stated before the appellate authority that pursuant to submission of the plan vide letter dated 26.12.1994, Executive Engineer, advised the predecessor-in-interest of the petitioner to attend to the observations which were with respect to challan fee, planning permission of the Municipal Corporation, Shimla qua existing construction and to submit structure stability certificate.
Aforesaid submissions/ contentions having been made by the respondents before appellate authority are strengthened by ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 22 communication dated 23.6.1995 placed on record by petitioner, whereby observations made by Executive Engineer were addressed by the petitioner but the fact remains that the .
petitioner neither furnished structural design details nor submitted copies of sanction as was asked by the Executive Engineer. Respondents vide letter dated 22.6.1996 again advised the petitioner to submit site/location plan and structural of designs, meaning thereby, after furnishing of plan, on 26.12.1994, predecessor-in-interest of the petitioner failed to attend the observations made by the authorities, as a result of rt which, plan submitted by Smt. Shanti Devi remained pending with the authorities.
25. Close perusal of communication dated 1.8.1996 placed on record by the petitioner itself suggests that no structural designs as were called for by Executive Engineer, were submitted because perusal of communication dated 1.8.1996 clearly suggests that at that time, petitioner submitted that structural designs would be submitted as and when necessary approval is granted by the Government. Hence, after careful perusal of aforesaid communications, which have been discussed hereinabove, this Court is compelled to conclude that the case of the petitioner remained incomplete and same could not be considered by the authorities for want of necessary ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 23 documents. Respondents vide letter dated 17.91996, again advised the petitioner to submit structural designs and copies of revenue papers. It was specifically stated in the aforesaid letter .
that site plan was not proper as set backs were not shown therein but there is no document available on record suggestive of the fact that pursuant to aforesaid communication dated 17.9.1996, petitioner submitted structural designs as well as of copies of revenue papers. Similarly, there is letter dated 17.10.1996, placed on record by respondents, perusal whereof suggests that petitioner was again requested to submit revenue rt papers/requisite designs. Again vide communication dated 11.3.1997, reminder was sent regarding communication dated 17.10.1996 but no response was sent by the petitioner. Finally, on 5.5.1997, petitioner issued notice to the respondents calling upon them to withdraw letter dated 11.3.1997 and to accord sanction in terms of Section 31 (5) of the Act to the plan submitted on 26.12.1994. But interestingly, aforesaid legal notice dated 5.5.1997 was withdrawn vide communication dated 26.8.1997, which, reads as under:
"To The Executive Engineer, Development Control Visn. No.4 Shimla.::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 24
Sub: Planning permission case No. Him/TCP/D- IV/case No.471/96-97 .
Dear Sir, I hereby withdraw the notice given by my advocate dated 5-5-1997, which were given under my instruction, for the case mentioned above. Thanking you, of Yours faithfully Sd/-
(Surinder Singh) rt 26/8/97"
26. Since the petitioner failed to responded to the various communications sent by the respondents, his case was rejected on 29.12.1997, as has been stated herein above.
27. During arguments having been made by the parties, Mr. G.C. Gupta, learned Senior Advocate disputed the correctness and genuineness of the letters placed on record by the respondents and as such this Court summoned the original record pertaining to the case.
28. At this stage, before proceeding ahead to decide the matter on merits, it would be apt to reproduce paras 3 to 6 of the reply filed by respondents No.1 to 3:
::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 25"3. That the contents of this para are wrong hence denied. It is submitted that Smt. Shanti Devi, the predecessor in interest of the petitioner had applied for construction of three and half storey commercial .
building over existing structure on old kh. No. 602, 602/1 & 602/2 (New Khasra nos. 281, 284, 288 to 310 & 312 to 318 at bright Land Hotel on dated 26.12.1994. The applicant Smt. Shanti Devi was informed about the short comings in the plan on 26.12.1994 and the applicant submitted his reply on of 23.6.1995 without attending all the observations and the applicant was again advised to attend all the observations vide letter on 22.6.1996 vide which the rt applicant was asked to submit the site plan, location plan and structural design. The applicant attended the aforesaid observations partly vide letter 31.7.1996 (Diarised in the office dated 1.8.1996) and submitted only site and location plan. The applicant was again asked to attend the complete observations vide letter dated 17.9.1996 which was replied by the applicant on dated 25.9.1996, (diarised in the office vide diary No. 557 dated 26-9-1996), but this time also the applicant did not attended all the observations and submitted only structural design and accordingly observation conveyed to applicant./ petitioner on dated 17.10.1996 and 11.3.1997. It is further submitted that provision of deemed sanction would have come into play only if the department would not have responded and the applicant would have fulfilled all requisite necessary codal requirements.::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 26
4. That the contents of this para are wrong hence denied and it is submitted that during the period 26.12.1994 to 17.10.1996 lot of correspondence was done with the petitioner. After receiving a letter dated .
23.11.1996 (regarding Deemed Sanction) from the petitioner the replying respondent had asked the petitioner to furnish the original copy of revenue record vide letter dated 11.3.1997. (Copy of letter attached as annexure A-1) The contents of para are admitted to the extent that petitioner through his of counsel issued a notice on dated 5.5.1997 but the same was withdrawn by the petitioner Sh. Surinder Singh no dated 26.8.1997.
rt
5. That the contents of this para are partly denied to the extent that no communication regarding the plan submitted was conveyed to him but rest of the contents of para are admitted that CWP No. 398/1997 was filed by him in this Hon'ble Court. The petitioner had submitted three plans out of which two were sanctioned and third was rejected.
6. That the contents of para 6 and sub para are admitted to the extent that Director, Town and Country planning filed reply to the petition in the CWP No. 298/97 on dated 23.12.1997. The plan submitted by the applicant was rejected by the director on dated 29.12.1997. The petitioner challenged the rejection before the Secretary (TCP) to the Govt. of Himachal Pradesh but the same was dismissed vide order on dated 1.3.2000."::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 27
29. Perusal of aforesaid reply filed by the respondents suggests that despite there being several reminders, petitioner failed to attend the observations made by the respondents as far .
as plan submitted by petitioner and as such respondents were not in a position to take decision on the same. Petitioner, by way of rejoinder, refuted the aforesaid claim of the respondents.
Respondents placed on record certain documents in the shape of of annexure P-15 (original plan) i.e. letter dated 26.12.1994 and 25.9.1996, annexure P-17 dated 23.6.1996. Perusal of aforesaid letter dated 26.12.1994 whereby original plan was submitted rt before authorities for consideration, clearly suggests that structural design was not furnished alongwith original plan.
Similarly, perusal of communication dated 25.9.1996, suggests that department had raised certain queries with regard to structural designs having been not furnished by the petitioner alongwith original plan and pursuant to these queries, petitioner vide communication dated 23.6.1995, informed the respondents that structural designs would be submitted in the department, after approval of the government is conveyed to the petitioner. It also emerges from letter dated 25.9.1996 that structural designs were submitted vide communication dated 25.9.1996. Similarly, perusal of communication dated 23.6.1998(annexure P-17) clearly suggests that information called for by the respondents ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 28 could not be submitted by the petitioner since she had to leave for Delhi for medical treatment. At this stage, it would be relevant to reproduce communication dated 23.6.1998 (annexure .
P-17) as under:
"BRIGHTLAND HOTEL, COSY NOOK ESTATE, SHIMLA-171003, TEL:72659, 213659 of To, The Executive Engineer III, Town & Country Planning Deptt., rt Division No. III, Khalini, Shimla-2.
Sub: Planning permission/additions & alterations to the existing structure, observation letter No HIM/TP- Case No.Dy.471/94 Dt. 26/12/1994 Sir, I am submitting the documents as required vide the observation letter mentioned above about. This is to inform you that due to my old age and severe cold weather I had to leave for Delhi for medical treatment and, therefore, I could not submit the information /documents required vide the above mentioned letter received from your office. I am now submitting the following documents: -
1. Challan Fee acknowledgement ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 29
2. As per as the structural design details are concerned it is submitted that the same will be submitted in your office/dept. after the approval from the Govt. is conveyed.
.
3. The copies of completion /sanctioned plans have already been submitted as enclosures along with the case files case No.3475 recommended/ approved by the Govt. & the dept of H.P.T.C.P. It is requested that the planning permission may kindly be granted.
of Thanking you.
Yours faithfully, rt Sd/-
(Smt. Shanti Devi) Dt.23/6/95"
30. Perusal of annexure P-18 dated 25.7.1997 also suggests that since petitioner failed to submit relevant revenue record, Executive Engineer, Division No. 4, Town and Country Planning Department himself applied to Naib Tehsildar (Urban) Settlement of land, HP Shimla-6, for issuance of Jamabandi and Tatimas. Perusal of aforesaid letter suggests that revenue authorities were requested to issue copies of Jamabandi as well as Tatimas in respect of Khata/Khatauni No. 45/61 situate at Up-Mohal Station Ward, Shimla Main falling under Station Ward, Shimla, Main. Annexure P-19, letter dated 28.8.1997 further suggests that the petitioner failed to furnish documents ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 30 relating to revenue record with the plan permission case and as such no inquiry, if any could be conducted by the authorities concerned. Accordingly, Executive Engineer, Division No. 4, TCP, .
sent a communication to Director, Town and Country Planning informing therein that since requisite documents have been received and case has been examined. Record further reveals that the petitioner withdrew her legal notice in the case and of proposed to raise construction of ground floor besides three additional stories on it. Perusal of communication dated 28.8.1997 suggests that the planning permission complete in all rt respects was submitted to the Director, TCP on 28.8.1997 and petitioner withdrew her notice dated 5.5.1997 wherein authorities were advised to withdraw letter dated 11.3.1997 and to accord permission under 'deeming provisions'. Perusal of annexure P-20 placed on record i.e. affidavit filed by Shri Ali Raza Rizvi, the then Director, Town and Country Planning, further suggests that petitioner had submitted two building plans, which are as follows:
"(i) Construction of one additional storey over existing 3 storey hotel building on Khasra No. 314 to 318 and 320 to 327 or Old Khasra No. 602/1.
(ii) Construction of a 4 storey + 1 parking floor hotel building on Khasra No. 297 to 299, 281, 284, 288 to 290, 300, 305 to 308 or old Khasra No. 602 and 602/2"::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 31
31. It also emerges from the affidavit that Director, Town and Country Planning made recommendations in each of the above plans in following terms:
.
"(i) not to allow any additional storey over existing 3 storey hotel building.
(ii) to allow 2 storey + 1 parking floor instead of 4 storey + 1 parking floor."
of
32. Government, vide letter dated 8.1.1998, conveyed planning permission without mentioning the number of stories to be allowed to the petitioner. Consequently, respondent No.2 rt made further reference to the Government on 29.1.198 and 24.4.1998 to intimate the correct position about the case in respect of number of storeys allowed. Finally, vide letter dated 23.5.1998, Government decided to consider the case of the petitioner afresh but as far as third case i.e. case No. 471/94, which is subject matter of the present petition, same was rejected vide letter No. HIM/TP-PP(P.Reg.)/97-300-Case No.471/94-15719-20 dated 29.12.97.
33. After careful perusal of aforesaid averments contained in the affidavit of Director, TCP, it clearly emerges that matter remained pending with the authorities from 26.12.1994 till 29.12.1997, for want of certain documents as well as clarification of the Government.
::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 3234. At the cost of repetition, it may be again observed that petitioner vide communication dated 23.6.1995 (annexure P-17), informed the authorities that structural design details .
would be submitted to the respondents after approval from the Government is conveyed, meaning thereby other cases as have been mentioned herein above, in affidavit of Shri Ali Raza Rizvi, the then Director, were pending before the authorities and of petitioner wanted to file structural designs after approval of the government in those cases. This court, after perusing aforesaid communication placed on record by the petitioner, is fully rt convinced and satisfied that the matter was under active consideration with the authorities after submission of plan on 26.12.1994 and same could not be decided finally for want of documents from the side of the petitioner, who despite there being several communications failed to submit the same and finally the Government decided to consider the case of the petitioner afresh vide communication dated 23.5.1998, after withdrawal of legal notice dated 5.5.1997, wherein petitioner unconditionally withdrew the legal notice with the prayer to consider the plan submitted on 26.12.1994.
35. Respondents No.1 to 3, in terms of order passed by this Court placed on record certain documents to demonstrate that original plan submitted by petitioner vide communication ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 33 dated 26.12.1994 was duly replied to and predecessor-in-
interest of the petitioner was asked to attend to the observations so that case is approved at the earliest. Perusal of annexures R-
.
1/B dated 26.12.1994, R-1/D dated 22.6.1996, R-1/F dated 17.9.1996, R-1/H dated 17.10.1996 and R-1/J dated 11.3.1997, clearly suggests that the matter remained under active consideration of the authorities and same could not be decided of finally for want of certain documents from the side of the petitioner.
36. Careful perusal of documents annexure R-1/C dated rt 23.6.1995, R-1/E dated 31.7.1996, R-1/G dated 25.9.1996, R-
1/K legal notice dated 5.5.1997, R-1/L communication dated 26.8.1997, also suggests that aforesaid communications sent by the petitioner were suitably replied by the department and repeatedly time was taken by the petitioner to submit structural design details.
37. Interestingly, in the aforesaid communications sent by the petitioner, in reply to letter issued by the respondents, petitioner has nowhere claimed that his plan submitted on 26.12.1994 stands sanctioned under deeming provisions of Section 31 (5). Vide annexure P-5, legal notice dated 5.5.1997, respondents were advised to withdraw letter dated 11.3.1997, whereby petitioner was asked to furnish revenue record. But the ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 34 fact remains that vide letter dated 26.8.1997, same was withdrawn, meaning thereby contents of letter dated 11.3.1997 were duly admitted by the petitioner. It may be noticed here that .
after withdrawal of legal notice, Government vide letter dated 23.5.1998, decided to consider the case of the petitioner afresh.
38. After careful perusal of pleadings available on record as well as the original record submitted before this Court, I am of unable to accept the contention of the petitioner that his case deserves to be allowed in terms of Section 31 (5) of the Act, under deeming provisions, because close scrutiny of documents rt as have been discussed in detail, clearly suggests that after furnishing original plan on 26.12.1994, matter remained under active consideration with the authorities, who were not in a position to process the case of the petitioner for want of certain documents from the side of the petitioner.
39. There are ample documents available on record suggestive of the fact that after submission of plan on 26.12.1994, respondents advised the predecessor-in-interest of the petitioner to submit certain documents i.e. structural designs and revenue papers and plans pertaining to existing building approved by Municipal Corporation, Shimla. Finally vide communication dated 11.3.1997, petitioner was advised to make available revenue record. Apart from above, when ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 35 petitioner himself withdrew legal notice dated 5.5.1997, plea having been made by petitioner can not be accepted because, admittedly, after withdrawal of notice, government decided to .
consider the case afresh. This Court also perused impugned order dated 18.3.2008, perusal whereof suggests that same is based on correct appreciation of documents made available on record by the respective parties. It also suggests that both the of parties were given due opportunity of hearing and to place on record documents.
40. Now, this Court would advert to the judgments rt having been relied upon by Mr. Gupta in support of his claim vis-à-vis facts of the present case. Mr. Gupta, has vehemently argued that since the respondents failed to respond to the plan submitted by the petitioner within stipulated period of six months, plan is deemed to have been sanctioned in terms of Section 31 (5) of the Act.
41. Petitioner, in support of his claim has relied upon judgment of the Hon'ble Apex Court in Live Oak Resort (P) Ltd.
v. Panchgani Hill Station Municipal Council reported in (2001) 8 SCC 329, wherein their lordships have held as under:
"29. As regards the issue of deemed sanction, the High court answered it in the negative recording therein that the appellants were refused of any sanction though beyond the period as such deemed sanction would not arise. Unfortunately, we cannot lend our concurrence thereto. Panchgani Municipal Council being a 'C' Class Municipal Council of Maharashtra in its Standardised Buildings Bye-laws, in particular, bye-law 9.2 records that while ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 36 the authority may sanction or refuse a proposal, there stands an obligation on the part of the authority to communicate the decision and where no orders are communicated within 60 days from the date of submission of the plan either by way of a grant or refusal thereto, the authority shall be deemed to have permitted the proposed construction. In view of our observations noticed hereinbefore, we are not inclined to go into this issue in .
any detail suffice however to record that the submissions pertaining to deemed sanction has substance and cannot be brushed aside in a summary fashion. Eventual rejection does not have any manner of correlation with deemed sanction - it is only that expiry of the 60 days that the sanction is deemed to be given, subsequent rejection cannot thus affect any work of construction being declared as unauthorised. The deeming provision saves such a situation. As noticed above, we are not of inclined to detain ourselves any further on this score."
42. Aforesaid judgment having been relied upon by the petitioner has been duly taken into consideration by the Hon'ble rt Apex Court, in case titled Municipal Corpn. Shimla v. Prem Lata Sood reported in (2007) 11 SCC 40, wherein their lordships have held as under:
33. Section 247 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, but 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 days has elapsed from the date of filing of application, the same by itself would not attract the legal fiction contained in Section 247 of the 1994 Act. When such an application is attended to and the defects in the said building plans are pointed out, there cannot be any doubt whatsoever that the applicant must satisfactorily answer the queries and/or remedy the defects in the building plans pointed out by the competent authority.
36. 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 vested in the person concerned.
The law operating in this behalf, in our opinion is no longer res integra.
::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 3738. The question again came up for consideration in Howrah Municipal Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663], wherein this Court categorically held:
"37. The context in which the 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 a vested right set up by the respondent Company is that on the basis of the 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 settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, of 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 rt 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 and the resolution of the Corporation issued thereupon."
44. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and use of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. 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 of the original application, when the building plans had been returned ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 38 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.
45. 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].
47. The said decision having been rendered in the fact situation obtaining therein, which has no similarity to the facts of the present case, which in our opinion, cannot be said to have of any application whatsoever. The submission of Mr. Ganguli that despite expiry of the period of sanction of the development plan by the State under the 1977 Act, the same should be held to be extended, in our opinion, cannot be accepted. Reliance has been placed by Mr. Ganguli on M.C. Mehta (Badkhal and Suraj Kund rt Lakes Matter) v. Union of India and Others [(1997) 3 SCC 715]. Therein, it was held :
"2. No construction of any type shall be permitted, now onwards, in the areas outside the green belt (as shown in Ex. A and Ex. B) up to one km radius of the Badhkal lake and Surajkund (one km to be measured from the respective lakes). This direction shall, however, not apply to the plots already sold/allotted prior to 10-5- 1996 in the developed areas. If any unallotted plots in the said areas are still available, those may be sold with the prior approval of the Authority. Any person owning land in the area may construct a residential house for his personal use and benefit. The construction of the said plots, however, can only be permitted up to two and a half storeys (ground, first floor and second half floor) subject to the Building Bye-laws/Rules operating in the area. The residents of the villages, if any, within this area may extend/reconstruct their houses for personal use but the said construction shall not be permitted beyond two and a half storeys subject to Building Bye-laws/Rules. Any building/house/commercial premises already under construction on the basis of the sanctioned plan, prior to 10-5-1996 shall not be affected by this direction"
50. 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.
::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 39Public interest, as is well-known, must override the private interest. [See Friends Colony Development Committee v. State of Orissa and Others AIR 2005 SC 1 para 22].
43. Careful perusal of aforesaid judgment passed by .
Hon'ble Apex Court in Municipal Corporation vs. Prem Lata Sood case, clearly suggests that deeming provisions as provided under Section 31 (5) of TCP Act, would have restricted operation and period of six months can not be counted from the date when of original application was submitted, especially when building plan had been returned to applicant for necessary clarification rt and/or compliance of objections raised therein. Hon'ble Apex Court specifically held in the said judgment that 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. Apex Court has specifically held that 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.
44. Petitioner further has relied upon judgment of this Court rendered in M/s. Verma Traders and others v. The State of Himachal Pradesh and another, reported in AIR 1983 HP 81, wherein it has been held as under:
"9 Under Section 17(2) (f), the terms and conditions subject to which, and the manner in which, the permit may be granted under Section 19 (1) has been prescribed. In the absence of any rules framed under Section 17 of the Act, it is ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 40 not possible to ascertain whether the above condition could be imposed or not. Even the guidelines are not indicated anywhere. An authority cannot assume arbitrary, unguided and unbridled power in a matter relating to the rights of a citizen. By imposing the above condition, the State Government indirectly made Section 4 of the Act applicable by defeating the purpose of Section 19 (1) thereof. Such a course cannot be considered legal or reasonable. The State Government cannot be permitted to achieve an object indirectly which is not .
permissible in terms of an enabling provision of the Act. Section 19 (1) being an exception to Section 4 of the Act, the action could be only taken in consonance with the spirit of the said section. It is strange that in the one hand the State Govt. permitted the petitioners to get the area demarcated, get the trees marked allowed their felling and to convert timber therefrom and on other hand when the forest produce reaches the stage of sale in the shape of timber, a condition like the one referred to above is imposed. Such an action is not justified and the principle of equitable and promissory estoppel will apply to the facts of the case. It is a matter of common knowledge that in the process of of felling of trees and converting timber therefrom, a person has to incur heavy expenses. Now, when the timber is ready for sale, without any price having been fixed and without action having been taken under Sections 6 and 7 of the Act, it is not just and proper to impose such a condition. Since such a condition is not in consonance with the essence and spirit of Section 19 (1) of the Act, the rt same cannot be sustained Moreover, no such material has been placed on record to show that the restriction imposed is in the interest of general public. Since no rules are prescribed and nothing cap be spelled out from the record to justify the imposition of such a condition, the same is unwarranted under the law. The record reveals that the final decision of the imposition of the above condition has been taken at the final stage, without any material on record."
45. Aforesaid judgment relied upon by the petitioner, if read in its entirety, may be of no help to the petitioner. As has been discussed in detail, there was no occasion for the respondents to act within stipulated period as envisaged under Section 31 (5) of the Act, intimating therein ground for refusal because, at no point of time, petitioner submitted his plan complete in all respects. There is no quarrel that once authority in terms of Section 31 (5) of the Act had a provision of deemed sanction, it was incumbent upon it to sanction or refuse proposal within stipulated period. But in the case in hand, as ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 41 has been noticed in detail, plan was not submitted complete in all respects, rather there are communications available on record suggestive of the fact that repeatedly petitioner failed to submit .
structural design and sought time from the authorities. Thus, it is not the case where deeming provisions would apply. Petitioner has also relied upon judgment of this Court rendered in Smt. Kanta Sharma and others v. State of H.P. and another of decided on 18.10.2004. However, same is also not applicable to this case.
46. Hence, this Court after carefully examining the law rt laid down in Municipal Corpn. Shimla v. Prem Lata Sood, is fully convinced and satisfied that plan submitted by petitioner can not be held to sanctioned under deeming provisions especially in view of the fact that the petitioner has failed to remove the objections/ supply the documents called for by the respondents and during this period, petitioner never submitted plan, complete in all respects, to the authorities.
47. At this stage, Mr. G.C. Gupta, learned Senior Advocate disputed the correctness of the documents filed by the respondents by stating that none of these documents were ever received by the petitioner and as such same can not be taken into consideration. But this Court, after carefully perusing the documents placed on record by respondents juxtaposing same ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP 42 with the documents placed on record by the petitioner is satisfied and convinced that documents having been relied upon by the respondents were received and suitably replied by the .
petitioner. Moreover, dispute, if any, with regard to genuineness and correctness of the documents placed on record by respondents, can not be looked into by this Court in the present proceedings and this Court sees no reason to disbelieve the of correctness and genuineness of the government record, which suggest that matter remained under active consideration and the case of petitioner could not be considered rt for want of certain clarifications from the petitioner.
48. Consequently, in view of detailed discussion made herein above, there is no merit in the petition and the same is dismissed. Pending applications are also disposed of.
(Sandeep Sharma) Judge November 11, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:32:45 :::HCHP