Ghanshyam Misra v. The Municipal Corporation, Shimla

referred to above and therefore, there is no infirmity either in the order passed by the Commissioner, Municipal Corporation, Shimla or learned District Judge. Accordingly, he prayed that the petition being devoid of merit be dismissed.

#8. I have heard learned Senior Counsel appearing for the parties and also carefully gone through the pleadings as well as documents appended therewith.

#9. As stated herein above, the Commissioner, Municipal Corporation, Shimla, vide Annexure P-38, order 7 dated 29.10.2022, ordered the demolition of the construction carried out by the petitioner by holding that the same was carried out by the petitioner without any valid sanction. This order was upheld in appeal by the learned District Judge, Shimla, by holding that the petitioner was to start the construction work and complete the same within a period of two years as from the date of permission, which permission was liable to be cancelled as the petitioner failed to do the needful, as a result whereof, the sanction lapsed.

#10. This Court is of the considered view that the order passed by the Commissioner, Municipal Corporation, Shimla, as upheld by learned District Judge, Shimla, is not sustainable in the eyes of law and the appellate order passed by learned District Judge can also not be sustained in law. The construction permission was granted to the petitioner by Nagar Panchayat, Kasumpati, vide Annexure P-6, dated

13.02.2003. This was on the basis of an application submitted by the petitioner under Section 33(1) of the Town and Country Planning Act read with Section 233 of the Municipal Corporation Act, 1994. It is a matter of record that subsequently the area issue had merged with the Municipal Corporation, Shimla and the provisions of 8 Himachal Pradesh Municipal Corporation Act, 1994, now govern the area. Though in terms of the sanction that was granted to the petitioner to carry out construction, time limit was fixed there but it still remains a matter of record that by virtue of amendment carried out in Himachal Pradesh Municipal Corporation Act, 1994, as well as in the Himachal Pradesh Town and Country Planning Act, 1977, in the year 2007 and 2022 respectively, the permissions which stood granted under the relevant statutes were to remain in force till perpetuity from the date of lease granted.

#11. Once the Legislature in its wisdom, by virtue of the amendments carried out in the year 2007 and 2022, respectively, deleted Section 251 of the Municipal Corporation Act, 1994 and amended Section 34 of the Himachal Pradesh Town and Country Planning Act, 1977, the statutory provisions have to be construed to be as such from the very inspection of the Act. Meaning thereby that it has be assumed that Section 251 was never there in the Himachal Pradesh Municipal Corporation Act, 1994 and Section 34, as it stood amended, was always there from the very inspection of the Himachal Pradesh Town and Country Planning Act, 1977 in the said form. 9

#12. At this stage, it is necessary to reproduce the statement of objects and reasons, which led to the amendment of the Himachal Pradesh Municipal Corporation Act, 2007, which read as under:- “STATEMENT OF OBJECTS AND REASONS There is a provision under sub section (3) of section 46 of the Himachal Pradesh Municipal Corporation Act, 1994, to appoint Legal Advisor-cum- Prosecutor, on deputation basis to aid and advice the Corporation in all legal matters. Since a post of Law Officer has been created in the Corporation, therefore, it has been decided to substitute the words and signs "Legal Advisor-cum-Prosecutor" with the words and signs "Legal Advisee-cum-Law Officer" by substituting sub-section (3) of section 46 of the Act ibid At present, two percent surcharge on the transfer of immovable properties situated within the limits of the municipal area in addition to the duty imposed under the Indian Stamp Act, 1899 as in force for the time being in the State of Himachal Pradesh, on instruments of sale, gift and mortgage with possession of immovable property situated in the municipal area, is being collected by the Corporation under section 84. A Scheme namely, Jawahar Lal Nehru National Urban Renewal Mission (JNNURMY has been launched for the development of Shimla Town for which financial aid is being provided by the Government of India subject to certain reforms. One of the reforms is to rationalize the stamp duty to bring down not more than 5%. The State Government has 10 signed a MOA with the Government of India in this regard. The Revenue Department has already brought down the stamp duty from 8% to 5%. But due to collection of 2% surcharge by the Corporation, the percentage of stamp duty increases to 7% which is against the committed reforms under INNURM. Therefore, it has been decided to discontinue the charging of 2% surcharge by way of deleting clause (c) of sub-section (1) of section 84 of the Act ibid. Further, the accounts of the Municipal Corporation Funds are audited by a separate and independent audit agency under the control of the Director. Urban Development, Himachal Pradesh as per existing provisions of section 161 of the Himachal Pradesh Municipal Corporation Act, 1994. The Ministry of Finance, Government of India, have issued guidelines to make provision for ensuring autonomy of audit agency by allowing alternative agencies which are not controlled by the State Government. Therefore, section 161 of the Act ibid is required to be amended suitably. Further the Himachal Pradesh Municipal Corporation Act, 1994, authorises only qualified Structural Engineers to sign building plans and specifications in the Corporation area. The Architects, registered under the provisions of the Architect Act, 1972, have filed a Writ Petition challenging the above provisions with the prayer that Architects should also be allowed to sign plans in the Corporation area. The Hon'ble High Court vide its order dated 13.01.2006 has directed to permit such architects to sign such plans and specifications under the said Act. 11 Therefore, it has been decided to make necessary provisions in the Act ibid. Further, under section 251 of the Himachal Pradesh Municipal Corporation Act, 1994, Commissioner while sanctioning erection of a building, has power to specify a reasonable period for completion of the erection of building from the commencement of such work. If the building or work is not completed within the period so specified, it shall not be continued thereafter without fresh sanction obtained for extension of period. This provision has been considered to be against the interest of general public. Because cost of construction always goes far beyond the estimated cost and as such generally. people with limited financial capacity can not complete the building within specified period. Therefore, it has been decided to delete section 251 of the Act ibid. This has necessitated amendments in Act ibid. This Bill seeks to achieve the aforesaid objectives.”

#13. A perusal of the same demonstrates that there was a conscious decision taken by the legislature that the provision as it was existing in Section 251 of the Himachal Pradesh Municipal Corporation Act, 1994, to complete the construction within a reasonable period, was considered to be against the interest of general public because cost of construction always goes far beyond the estimated cost and 12 generally people with limited financial capacity cannot complete the building within specified period and this necessitated deletion of Section 251 of the Himachal Pradesh Municipal Corporation Act, 1994.

#14. Similarly, the statement of objects and reasons of amended Section 34 of the Town and Country Planning Act are reproduced herein below:- “STATEMENT OF OBJECTS AND REASONS As per section 31 of the Himachal Pradesh Town and Country Planning Act, 1977 (Act No. 12 of 1977) the Director has the power to grant or refuse the planning permission to construct any building etc. Further section 32 provides for appeal against the order passed under section 31 and the State Government has power of revision under section 33. Presently every permission granted under section 31 or section 32 or section 33 remains in force for a period of three years from the date of such grant and thereafter it shall lapse. The permission may be extended from year to year but the total period shall in no case exceed five years from the date on which the permission was initially granted. Further, under the Himachal Pradesh Municipal Corporation Act, 1994, the period for completion of building or work was defined as "reasonable period" to be specified by the Commissioner, The Municipal Corporation as per section 251 of the Act. But section 251 of the Himachal Pradesh Municipal Corporation Act, 1994, was deleted vide Act No. 19 of 2007, thus 13 making all development/planning permissions/ sanctions valid for perpetuity. This dichotomy in the validity of development/ planning permissions/sanctions between Himachal Pradesh Town and Country Planning Act, 1977 and the Himachal Pradesh Municipal Corporation Act, 1994 has been pointed out and discussed at various forums from time. Further, it is imperative to point out here that in a hilly State, the large scale projects especially the residential, tourism, real estate and industrial projects are rarely completed within the stipulated short span of 3 to 5 years due to various constraints like site/topographic conditions, climatic conditions and variation, financial constraints, and some unforeseen events etc. Thus, in order to streamline the process of planning permission and to promote ease of doing business, it is proposed to extend the validity of map approvals under section 34 of the Act ibid at par with the Himachal Pradesh Municipal Corporation Act, 1994 for perpetuity, with provision of revision and revalidation of the permission/sanction as per requirement of the applicants and project proponents for the areas notified by the State Government.

#15. A perusal thereof also demonstrates that similar reasons weighed with the Legislature while introducing this amendment also.

#16. Be that as it may, as observed hereinabove also, the fact of the matter remains that once the legislature in its 14 wisdom deleted Section 251 of from the Himachal Pradesh Municipal Corporation Act, 1994, then it has to be assumed that this Section was never there in the Act and similarly, when Section 34 of the Himachal Pradesh Town and Country Planning Act, stood amended in the year 2022, it has be presumed that this amendment was there from the very inception of the Act. This extremely important aspect of the matter has neither been appreciated by the Commissioner, Municipal Corporation, Shimla, nor by learned District Judge. In fact, the Commissioner, Municipal Corporation, Shimla, erred in not appreciating that as on the date of institution of the case, i.e. 01.11.2021, Section 251 of the Himachal Pradesh Municipal Corporation Act already stands deleted and that too as far back as in the year 2007. In these circumstances, it erred in holding that the construction being carried out by the petitioner was without any valid sanction because the statutory provision as it was existing on the said date was that the permission/sanction granted by the authority in favour of the applicant was to be in perpetuity. Even in appeal, learned District Judge, erred in not appreciating this aspect of the matter its correct perspective. It erred in not appreciating that no action stood 15 initiated against the petitioner before the deletion of Section 251 of the Municipal Corporation Act and that being the case, because Section 251 of the Act was not there in the Statute Book in the year 2021, when proceedings were initiated against the petitioner, he could not have been non-suited on said count.

#17. In fact, a five Judge Bench of Hon’ble Supreme Court of India, in Kolhapur Canesugar Works Ltd. and another Versus Union of India and others2, has held that the position is well known that at common law, 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 and the statute must be considered as a law that never existed. Thus, in terms of the law declared by Hon’ble Supreme Court, deletion of a statutory provision totally obliterates it from the statute-book. Accordingly, in view of the findings returned hereinabove, this petition is allowed. Order passed by the Commissioner, Municipal Corporation, Shimla, dated

29.10.2022, in case No. 1647/AP/2021, titled as Municipal Corporation, Shimla vs. Sh. G.S. Mishra, is quashed and set 2 (2000) 2 Supreme Court Cases 536 16 aside. The judgment passed by learned District Judge in appeal No. 1 of 2023, titled as Sh. Ghanshyam Misra vs. Municipal Corporation, Shimla, dated 08.06.2023, is also set aside, with further direction to the Municipal Corporation, Shimla, to permit the petitioner to carry out construction in terms of the sanctioned plan. No order as to costs. Pending miscellaneous application(s), if any, also stand disposed of accordingly. January 05, 2024 (narender) (Ajay Mohan Goel) Judge