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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
AJAY MOHAN GOEL, J.
Ghanshyam Misra – Appellant
Versus
The Municipal Corporation, Shimla – Respondent
CWP No. 4189 of 2023
Decided on : 05-01-2024
Writ Petition - Construction Permission - Himachal Pradesh Municipal Corporation Act, 1994, Himachal Pradesh Town and Country Planning Act, 1977 - Section 251, Section 34 - The court discussed the amendments made in the statutes, the validity of construction permissions, and the effect of the amendments on the petitioner's case. The court highlighted that the permissions granted were to remain in force for perpetuity from the date of lease granted, and the deletion of Section 251 of the Municipal Corporation Act meant that the permission granted by the authority was to be in perpetuity. The court also referenced the principle that the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed.
Fact of the Case:
The petitioner was granted a plot for construction, faced challenges from authorities and neighbors, and was later directed to demolish the construction for lack of valid sanction.
Finding of the Court:
The court found that the orders to demolish the construction were not sustainable as the permissions granted were to remain in force for perpetuity from the date of lease granted, and the deletion of Section 251 of the Municipal Corporation Act meant that the permission granted by the authority was to be in perpetuity.
Issues: Validity of construction permissions, effect of statutory amendments, and interpretation of the law regarding the deletion of statutory provisions.
Ratio Decidendi: The court held that the deletion of Section 251 of the Municipal Corporation Act meant that the permission granted by the authority was to be in perpetuity, and the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed.
Final Decision: The petition was allowed, and the orders to demolish the construction were quashed and set aside. The Municipal Corporation was directed to permit the petitioner to carry out construction in terms of the sanctioned plan.
JUDGMENT :
Ajay Mohan Goel, J.
By way of this writ petition, the petitioner has primarily prayed for the following reliefs:-
“a) That a Writ of Certiorari may kindly be issued calling upon the respondent to produce the entire record of the case and the impugned orders dated 08.06.2023 (Annexure P-40) passed by the Ld. District Judge Shimla in Civil Appeal No. 1-S/14 of 2023 titled as Sh. Ghanshyam Misra Vs M.C. Shimla, as well as the impugned order dated 29.10.2022 (Annexure P-38) passed by the Ld. Commissioner M.C. Shimla may kindly be quashed and set aside.
b). That a declaration may kindly be issued to the effect that the entire proceedings and impugned orders suffer from inherent lack of jurisdiction and are a nullity and void ab-initio and deserve to be quashed and the entire proceedings are vitiated as they are tainted by malafides and same may be quashed.
c). That a writ of mandamus may kindly be issued to respondent No. 1 directing him not to demolish the construction which has been carried out by the petitioner in accordance with the sanctioned plan and not to interfere with the construction activity in any manner whatsoever.
d). That a writ of mandamus may kindly be issued to the respondent directing its official not to exceed their jurisdiction.”
2. Brief facts necessary for the adjudication of the present petition are that the petitioner submitted an application for allotment of a plot to the Shimla Development Authority, as it then was, and the petitioner was allotted Plot No. 85 Type B, Sector 3, New Shimla, measuring 120.55 Sq. Meters on 99 years lease hold basis. The Shimla Development Authority merged into Himachal Pradesh Housing and Urban Development Authority after the constitution of the same in the year 2004. The petitioner applied to the Nagar Panchayat, Kasumpati, New Shimla, for grant of permission to construct a building on the allotted plot on 24.12.2002. Vide order dated 13.03.2003, the proposed plan submitted by the petitioner was approved by the competent authority. After receipt of the approval vide letter dated 22.11.20003, the petitioner intimated competent authority that he had started raising construction work of his house and a no objection certificate be issued for installation of Electricity and Water Meters. The petitioner had commenced construction work on his site in November, 2003 and after receipt of no objection certificate, he continued to carry out construction work at the site. From the very inception, he was facing problems from the adjoining neighbours, who were lodging false and frivolous complaints to the authorities concerned with regard to the work being carried out by the petitioner. The petitioner was also facing certain personal and domestic problems as also financial constraints on account of education of his children and as in the year 2005, he was allotted Government Accommodation, thus, he was not having any immediate requirement to complete the house. The area where the plot of the petitioner was, stood vested in Himachal Pradesh Housing and Urban Development Authority (HIMUDA) w.e.f. 05.03.2004. After the abolition of SADA, the Municipal Corporation was entrusted with the responsibility and task of carrying out municipal functions in New Shimla area also under Section 42 of the HIMUDA Act 2004, however, the development, control and use of land including regulation of building activity in New Shimla remained with HIMUDA as per Section 47 of the HIMUDA Act, 2004. Thereafter, the Government of Himachal Pradesh, decided to grant free hold rights to the allottees of plot in New Shimla and vide conveyance deed dated 20.03.2009, the petitioner acquired full ownership rights of the plot in question.
3. As the petitioner neared the age of superannuation, he re-started the construction work in the year 2010. To cut the issue short, in the year 2021, proceedings were initiated against the petitioner under Section 254(6) and 253 of the Himachal Pradesh Municipal Corporation Act, 1994,
AI
The main legal point established in the judgment is that the deletion of a statutory provision obliterates it from the statute-book, and the permissions granted were to remain in force for perpetuity....
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The judgment establishes the principle that unauthorised constructions cannot be regularized under the amended provisions of the Acts. It emphasizes the need to prevent illegal and unauthorized const....
The court emphasized that demolition orders under the West Bengal Panchayat Act must come from authorized bodies, prohibiting post facto sanctions for unauthorized constructions.
Unauthorized construction cannot be regularized as a minor deviation under the Howrah Municipal Corporation Act, and must be demolished if not sanctioned.
Illegal construction – Demolition of - Executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies o....
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