Ram Parkash vs The Deputy Commissioner etc.

C.R. Thakur, J.—The Petitioner in this case is the owner of the estate known as Flora Hotel, Simla. He wanted to make certain additions and alterations to the Flora Hotel and so with that object he made an application with a plan attached, to the Municipal Corporation, Simla, i.e., Respondent No. 2, for sanction. The concerned officers of the Corporation gave ''no objection certificate'' for the necessary additions and alterations as contemplated by the owner. The Executive Officer, accordingly, gave sanction vide order, dated 29th of July, 1969, (Annexure PA). He accordingly started construction, but later on the Executive Officer of the Corporation informed by an order dated 22nd August, 1969, that the Deputy Commissioner, Simla, had by his order, dated 1st July, 1969 (Annexure PB) suspended the order granting sanction for additions and alterations and intimated him not to undertake work till a further reference from his office was issued. The Petitioner approached the Deputy Commissioner several times for the final orders and he was apprised of the suspension of the Executive Officer''s sanction order and the grounds suspending the same that the Town and Country Planner to whom the ferro copy of the plan had been referred had not given a "no objection certificate" to the proposal which intimation had been conveyed to the Executive Officer. Thereafter the Petitioner approached the Executive Officer to supply the copy of the grounds on which the Town and Country Planner had not given the ferro copy of the plan for effecting the additions and alterations, but he did not receive any reply and, therefore, he challenged the order, dated 29th July, 1969, communicated to him by the Executive Officer on the grounds enumerated in para 4 (a) to (f) of the petition and he, therefore, prayed for quashing the orders of the Deputy Commissioner, Simla, dated 1st July, 1969, as conveyed to the Petitioner vide letter No. 7894/991/DC, dated 9th September, 1969, by the Executive Officer, Simla Municipal Corporation, suspending the implementation of the order, dated 29th July, 1969, passed by the Executive Officer.

The Respondent No. 1 in his return admitted having passed the suspension order and the reason for having suspended the order was that ''no objection certificate'' had not been obtained from the Executive Officer, before sanctioning the plan and that it was done strictly in accordance with the policy of the Government. The Simla Town Planning Scheme had already been taken up by the Himachal Pradesh Govt. and under that scheme the Town Planner Himachal Pradesh had to be consulted by the Committee before granting permission for the construction of a building. The order of the Executive Officer was rightly suspended by Respondent No. 1 u/s 247 of the Himachal Pradesh Municipal Act (hereinafter called the Act). The Executive Officer was not competent to sanction the plan according to the decision of the Municipal Committee and instructions issued by the Himachal Pradesh Government in that behalf and as such his action was quite legal. Further it was averred that the case was later on referred to the Town planner who informed that the construction was going to interfere with the town planning and it was in accordance with his report that the order dated 29th of July, 1969 was suspended.

Section 247 under which the power to suspend the order of the Executive Officer has been exercised by the Deputy Commissioner says that the Deputy Commissioner may suspend the execution of any order/resolution...if in his opinion the resolution, order or act is in excess of the powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of municipal funds or property, or the execution of the resolution or order, or doing of the act, is likely to lead to the breach of the peace, to encourage lawlessness or to cause injury or annoyance to the public or to any class or body of persons. The reasons assigned in para 4 (a) of the reply are that the suspension of the Executive Officer''s order was strictly done in accordance with the policy of the Government. That the Simla Town Planning Scheme had already been taken up by the Government and under that scheme it was enjoined that in order to avoid unplanned growth of the town, the Town Planner, Himachal Pradesh, should be consulted by the Committee before granting permission for the construction of any building, and that the Municipal Committee had also decided to refer the buildings cases to the Town Planner before they were sanctioned but it may be stated that no such resolution of the Committee has been placed on the record to establish the averments of the Respondent. In so far as the reply of the Respondent is concerned, it does not satisfy the requirements of Section 247 under Which the Deputy Commissioner is empowered to take action for the suspension of any resolution or order of the Committee.

Section 198 of the Act provides for making of the bye-laws by the Committee in respect of the matters mentioned therein and Section 199 prohibits the erection or re-erection etc. of any building without the sanction of the Committee. Section 200 of the Act, gives the power to the Committee to make bye-laws as to erection or re-erection of the building. Section 202 gives the power to the Committee if so required by the Deputy Commissioner to draw up a building scheme for built areas and a town planning scheme for un-built areas, which may among other things provide for the matters stated thereunder. Section 203 provides for the penalty for breach of the provisions u/s 202, and, Section 204 empowers the Committee to sanction or refuse erection or re-erection of buildings. Therefore, after having perused these different sections of the Act which provide for the farming of the bye-laws and prohibits the buildings without sanction, etc. I am of the view that the Deputy Commissioner could only reject the sanction already conveyed by the Corporation if there was any contravention of the bye-laws or it was contrary to the scheme sanctioned by the Government but in the instant case, it does not appear if any scheme had been prepared. In this case although the defence of the Respondent is that the Town Planning Scheme had already been taken up but it may be stated that the Town Planning Scheme as envisaged u/s 202 is only with regard to un-built areas, whereas in the present case it is a built area and what the Petitioner wanted was only to make alterations and additions to the building in a built area around it. Neither the Act nor the bye-laws anywhere state that the Town Planner should have been consulted by the Committee before granting permission for the additions and alterations of the building in a built area. It cannot be said that the application for alterations to be made by the Petitioner was in contravention of the bye-laws. The sanction order, Annexure PA, dated 29th of July, 1969 says "the plan is according to the building bye-laws. It is, therefore, sanctioned subject to usual conditions". Therefore, there was no violation either of the Act or of the bye-laws for which the Deputy Commissioner could exercise the powers as envisaged u/s 247 of the Act. The bye-laws did not require the plan to be submitted to the Town Planner and it was only under the executive instructions which had no statutory force. Merely to state that it was in the interest of public, will not be correct unless it had in any way contravened the provision of the sanctioned scheme by the Government or it was contrary to the bye-laws or the provisions of the Act. It has been held in Smt. Lilawati v. Municipal Committee, Amritsar AIR 1946 Lah 2l6 that mere proposed scheme which has not yet been sanctioned does not entitle Committee to refuse sanction under Sub-section (1) of Section 193(1) of the Punjab Municipal Act and further that where the order of the Executive Officer Simla says that the sanction is refused on the ground of interfering with the Town Planning Scheme and no other reason is given in the said order, Sub-section (2) of Section 193 of the Punjab Municipal Act will not apply. This section is para materia to Section 204 of the Act which gives powers to the Committee to sanction or refuse erection or re-erection of buildings. Therefore, it is obvious from this that this sanction could not be suspended. The Committee had sanctioned the plan because it had found it quite in accordance with the bye-laws framed by it and it was only the Deputy Commissioner who purported to have exercise the power of suspension u/s 247 but the requirements for exercise of those powers as contemplated thereunder do not appear in the order and the order says that the Town Planner had not been consulted or no "no objection certificate" from the Town Planner had been obtained which is not provided under the bye-laws and if there are any executive instructions in that behalf the same have got no legal binding.

The Petitioner has averred that he had already started construction of the building and it is not denied by the Respondents and, therefore, if he had started the construction under the resolution duly approved by the Committee he could not be stopped from proceeding with the construction when the approval was accorded after the Committee was satisfied that the plan submitted to it for sanction, fulfilled the requirements of the bye-laws. Therefore, the power exercised by the Deputy Commissioner which was not in accordance with the requirements of Section 247 is liable to be struck down. Consequently, I accept this application and set aside the order Annexure PB and PC whereby under the orders of the Deputy Commissioner, the Executive Officer had stopped the work of the Petitioner. The Respondent shall also bear the costs of the Petitioner assessed at Rs. 200/-.