CMP Nos. 238 & 240 of 2005 : V.K.Gupta, C J.—These two applications, one by respondent No. 1 and the other by respondent No. 2 (Municipal Corporation, Shimla) have been filed in pursuance of the order dated 9.12.2004 passed by this Court. In that order this Court while granting to the petitioners the benefit of "deemed sanction" in terms of Section 247(1) of the Himachal Pradesh Municipal Corporation Act, 1994 read with Section 31(5) of Himachal Pradesh Town and Country Planning Act, 1977 had reserved to the respondents the liberty to approach this Court with a request for vacation or modification of the aforesaid order if the respondents felt or thought that such vacation/ modification was warranted or called for, based on such facts as they might bring to the notice of this Court.

2. In the aforesaid order dated 9.12.2004 this Court, by taking note of Section 247(1) of 1994 Act and Section 31(5) of 1977 Act and by noticing the factual matrix, particularly the fact that the petitioners had submitted the building plan on 27.2.2004 (which had been forwarded by the Municipal Corporation to the Government on 17.3.2004) for the construction of the building in question and admittedly till the date of the passing of the aforesaid order on 9.12.2004 the petitioners had not been conveyed either the sanction or the refusal to sanction, had come to hold that the deemed sanction came into operation which entitled the petitioners to start raising the construction in question. It is undisputed case of the parties that pursuant to the coming into force of the deemed sanction in terms of Section 247 (1) of 1994 Act, petitioners had also served a valid notice under sub-section (4) of Section 247 of the said Act with respect to its intention to start the construction.

3. Even though in our order dated 9.12.2004 we had very clearly observed that the petitioners shall be considered to have been granted deemed sanction and accordingly would be at liberty to proceed with the construction work, we had also in the same breath observed and directed that the construction work that the petitioners undertake shall be strictly in accordance with and on basis of the building plan as had been submitted by the petitioners to the Municipal Corporation, Shimla which had been forwarded by the Municipal Corporation to the State Government. Not only this, we had also observed and directed that in terms of subsection (2) of Section 247 of 1994 Act, the petitioners shall be bound to undertake the construction work not only in accordance with the building plan which they had submitted but also they shall not contravene any provision of 1994 Act or 1977 Act or any other law, or any bye-law made under any law.

4. Through the medium of the aforesaid two applications, in the light of the aforesaid order dated 9.12.2004, the respondents have prayed for the vacation/modification of the aforesaid order only on one main ground. This main ground is that despite the deemed sanction having come into being, since the petitioners did not act in terms of bye-law No. 9.1 of Municipal Corporation Shimla Building Bye Laws, 1998, the petitioners cannot be permitted to raise or go ahead with the construction work. Bye-law 9.1 reads thus : "9.1. The Commissioner may either sanction or refuse the plans and specification or may sanction them with such modifications or directions as it may deem necessary and there upon shall communicate his decision to the person giving the notice. If within 60 days of the receipt of notice under 7.1 of bye-laws the Commissioner fails to intimate in writing to the person, who has given the notice, of its refusal or sanction or any intimation, the notice with its plans and statements shall be deemed to have been sanctioned provided the fact is immediately brought to the notice of the Commissioner in writing by the person who has given notice and having not received any intimation from the Commissioner within fifteen days of giving such written notic