MANOHAR LAL SAINI Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) The petitioner, Shri Mano-har Lal Saini, is aggrieved by an order of the Deputy Commissioner, Simla, dismissing his appeal against an order of the Executive Officer, Municipal Corporation. Simla, and he applies for relief under Art 226 of the Constitution.

(2.) It appears that a notice was served by the petitioner on the Municipal Corporation of his intention to erect some flats near Earls Field, Jakku. Simla. Sanction was refused by the Executive Officer by Ms order of August 28. 1971. The petitioner appealed against that order to the Deputy Commissioner, Simla, and the Deputy Commissioner dismissed the appeal on January 19. 1972. One of the contentions raised by the petitioner before the Deputy Commissioner was that as the order refusing to sanction the con-structipn was communicated to him more than sixty days after the receipt of his notice by the Municipal Corporation, he was entitled to the benefit of Section 204 (5) of the Himachal Pradesh Municipal Act, 1968. The contention was rejected by the Deputy Commissioner on the ground that the order refusing sanction had been made within a period of sixty days. He also observed that an attempt was made to effect service of the order of rejection on tile petitioner by a peon, Bhag-wan Dass. and the attempt was frustrated by the petitioner by his refusal to accept delivery of the order. Section 204 (5) provides--

(3.) Section 204 (5) speaks of the order refusing sanction being made within sixty days of the receipt of the notice of intention to erect a building. The question is whether thereby what is intended is the date of communication of the order of rejection or merely the passing of that order. To appreciate the construction which must be put upon that requirement, reference must be made to the context in which the sub-section has been framed. Sub-section (5) is a part of Section 204. and is an extension of the scheme provided in Sub-section (2). That is also clear from the opening words of Sub-section (5). which reads "......... subject to the provisions of .......... Sub-section (2) of this section ............" Section 204 (2) provides that the Committee may refuse its sanction and must communicate its refusal in writing within sixty days of the receipt of the application. Section 204 (5) must, therefore, be read as intended to say that if the order refusing sanction is not communicated within the said period of sixty days, the erection of the building shall be deemed to have been sanctioned. The period in either case, whether wider Section 204 (2) or Section 204 (3). is intended to be the same. In State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313, the Supreme Court laid down that the mere passing of an order was not effective unless it was published and communicated to the person concerned. Applying that principle, it would seem that where Section 204 (5) speaks of the passing of the order of refusal within sixty days. it must be taken to refer to the communication of the order of refusal within that period.