(R.B.Mishra, J.) (Oral) - The present appeal has been preferred against the order dated 25th April, 2008 passed by the learned Single Judge, in CWP No. 279 of 2005, dismissing the writ petition with the direction that the appellant was not legally entitled to construct 5th storey over the building, in question, and the construction raised by him in view of order dated 7.7.2005 by fixing concrete slabs on the top floor/5th floor, at his own risk and responsibility,was subject to the final decision of the writ petition and it cannot give right and entitlement to the appellant and as such, the appellant was directed to demolish the construction raised by him on or after 7.7.2005 and to restore the position as it existed prior to 7.7.2005 within three weeks from 25.4.2008.

2.For adjudicating the present appeal, it is necessary to take the background of the case. The appellant was accorded permission to raise five storeys building vide order No. 140 dated 1.5.1975. A revised-cum-completion plan of a hotel was approved by the Municipal Corporation, Shimla in short called “Corporation” vide order No. 458 dated 12.11.1976. An application of appellant of the year 1988, seeking permission to raise 5th storey, was rejected by the Municipal Commissioner on 22.4.1997. The appeal preferred against the said order before the Divisional Commissioner was also dismissed on 1.12.1997. CWP No. 215 of 2004 preferred against the above order was dismissed as withdrawn on 9.6.2004 with the observations that if a representation is made by the appellant to the appropriate authority, the same shall be considered and disposed of on its merits within three months. Accordingly, a representation dated 17..6.2004 submitted by the appellant to the Municipal Corporation was dismissed by the Commissioner respondent No. 4 on 16.9.2004.

3.Subsequently, writ petition No. 1101 of 2004 preferred against the above order was also allowed to be dismissed as withdrawn on 23.12.2004 with liberty to assail the order of the Commissioner before the appellate authority.

4.It appears that the petitioner preferred a revision petition under Section 403 of the Himachal Pradesh Municipal Corporation Act, 1994 (in short called “Corporation Act”) against the order dated 16.9.2004. A speaking order was passed by this Court (DB) on 11.4.2005, with an observation that the revision petition of the appellant shall be disposed of by the Revisional Authority keeping in view the observations made therein within a stipulated time.

5.The Secretary, Department of Urban Development, decided the revision petition on 20.5.2005 during pendency of the writ petition upholding the order of the Commissioner dated 16.9.2004, therefore, an application preferred by appellant seeking permission for amendment of the writ petition was allowed by this court. This Court (DB) in the peculiar facts and circumstances of the case, passed an order on 7.7.2005 permitting the appellant to erect, fix or put concrete slabs on such portion of the top floor/5th floor as would ensure the avoidance of leakage and seepage, however, such permission was at the risk and responsibility of the appellant and the same was subject to outcome of the writ petition.

6.Learned Single Judge while adjudicating CWP No. 279 of 2005, in question, has noted submissions of Shri B.C.Negi, learned counsel for the appellant herein that the appellant had acquired vested right to erect 5th storey in view or order No. 140 dated 1.5.1975.

(i) Learned Single Judge has also noted the contention of Mr.Negi that the application preferred by the appellant in the year 1988, was to be considered as per law then existing and not as per the present existing laws.

(ii) The building in the year 1975 and necessary permission was accorded to him in the year 1975 itself and as per revised-cum-completion plan, he was permitted to raise 4 1/2 storeys on 12.11.1976 for which he was bound to submit a completion certificate, as per building