Holding

The 1977 Act and the 1994 Act are complementary; a sanction under the 1977 Act does not create a vested right that binds the Municipal Corporation, which must still comply with the 1994 Act, its building bye‑laws and subsequent regulations, and the 60‑day deeming provision does not apply where the plan is non‑conforming.

Summary

The respondents sought to build a hotel on Shimla's Mall Road. They obtained planning permission under the Himachal Pradesh Town and Country Planning Act, 1977, subject to obtaining building permission from the Municipal Corporation. Their application for building plan sanction under the Himachal Pradesh Municipal Corporation Act, 1994 was returned for clarification, resubmitted, and then rejected after the State issued a temporary freeze and later notifications designating the site as a "core area" and "heritage zone" with construction restrictions. The High Court held that the earlier 1977 Act sanction created a vested right and directed the corporation to grant permission. The Supreme Court allowed the appeal, holding that the two Acts operate in complementary fields, the 1977 Act sanction does not create a vested right that overrides the 1994 Act and its bye‑laws, and the corporation could lawfully reject the plan in view of the subsequent regulations; the 60‑day deeming provision of Section 247 does not apply where the plan is non‑conforming.

Issues considered

The effect of a sanction under the Himachal Pradesh Town and Country Planning Act, 1977 on the Municipal Corporation's power under the Himachal Pradesh Municipal Corporation Act, 1994
Whether a vested right arose for the respondents upon the 1977 Act sanction
Applicability of Section 247's 60‑day deeming provision of the 1994 Act
The binding nature of subsequent State notifications restricting construction in the core and heritage zones
Whether a higher authority can direct the Municipal Corporation to grant sanction

Legislation cited

Himachal Pradesh Town and Country Planning Act, 1977s. 10, s. 14, s. 17, s. 25, s. 2(g), s. 2(o), s. 3, s. 30, s. 31, s. 76

Subjects

planning permissionvested rightbuilding plan sanctionmunicipal corporationtown and country planning actbuilding bye‑lawsSection 247 deeming provisioncore areaheritage zonepublic intereststatutory interpretation

Judgment

.....r
A COMMISSIONER OF MUNICIPAL CORPORATION, SHIMLA
v.
PREM LA TA SOOD AND ORS.

MAY 15, 2007

B [S.S. SINHA AND MARKANDEY KA TJU, JJ.]

The Himachal Pradesh Town and Country Planning Act, 1977-Sections
2(g), 2(o), 3, JO, 14, 17, 25, 30, 31, 76-State granting permission to
,' -
construct hotel under 1977 Act-Building plan for hotel submitted before
c local authority for sanction/approval under 1994 Act-Subsequently, State
issuing notifications and amending regulations placing restrictions on
construction in area in which hotel intended to be developed-Local authority
in view of amendments in regulations rejecting application for sanction of
building plans-Decision of local authority challenged on the ground that
D building plan sanctioned by State under 1977 Act binding on local authority-
Held, the 1977 Act and the 1994 Act operate in different fields and are
complementary and supplementary to each other and there is no conflict
between the two Acts-The 1977 Act deals with laying down overall poJicy
i
matter and the 1994 Act deals with grant of building plans in terms of
provisions thereof-Sanction for development granted under 1977 Act would
E not mean that the provisions of 1994 Act or the building bye-laws not
required to be complied with-Besides, notification issued amending
regulations and placing restrictions on construction binding upon the local
authority and sanction could not have been granted in violation thereof-
Jn the facts held, no vested right can be said to have accrued in the matter-
F Himachal Pradesh Municipal Corporation Act, 1994-Sections 243, 244,
245, 246 and 247. ~

~

Respondent Nos. 1 to 5 intended to construct a hotel on the Mall Road
in the town of Shimla and filed an application for grant of planning permission
to the Town and Country Planning Department which was approved by the
G Government ofHimachal Pradesh by an order dated 16.01.1998 under Section
31(1) of The Himachal Pradesh Town and Country Planning Act, 1977 subject
inter alia, to the condition that building permission should be obtained from
the local authority concerned before commencement of the development. An
•
application for sanction of the building plan in terms of the provisions of the

H 898
COMMNil. OF MUNICIPAL CORPN., SHIMLA "· PREM LATA SOOD 899
Himachal Pradesh Muni<:ipal Corporation Act, 1994 and building bye-laws A
framed thereunder was submitted to the appellant-Corporation on 07.07.1999.
The Municipal Corporation, however, returned the said plans asking for
certain clarifications. Respondents resubmitted the (llans upon purported
compliance of the objections on ! O.a.t.2000. However, immediately thereafter
on 17 .4.2000 a purported temporary·ffteZe on comtruction activities in some
areas appertaining to Shim la Planning Area was issuerl by41te G<Wernment B
of Himachal Pradesh. The said temporary ban was-clarified on or about
25.7.2000 by stating that the building plan cases already cleared by the
Government/Cabinet may be processed further in aceordance with the Rules
\ and Regulations. However, before the appellant-Corporation could consider
the respondent's ' application for grant of sanction of the development plan in C
terms of the 1994 Act and/or building bye-laws framed thereunder, the State
of H.P. issued notification in terms of sub-sections (4) and 5 of Section 17 of
the 1977 Act, making further amendments in the interim development plans
imposing restrictions on construction in Shimla Planning Area and
subsequently also amended regulations by issuing notification dated 22.8.2000
declaring 'core area' and 'heritage zone' and putting further restrictions on D
construction in respect of the said areas within which only the respondents
had filed their application for grant of sanction of the building plans. In view
of the notification, the application for sanction of the building plans wi:s
ultimately rejected by the Corporation.

Respondents filed writ petition in the High Court seeking directions to
E
the appellant-Corporation to accord necessary pla!lning permission to the
respondents for construction of hotel. Division Bench allowed writ petition
holding that the purported declaration in relation to the core area and heritage
zone would not apply in the case of the respondents in view of the fact that the
building plan submirted by them before the Director in terms of the provisions F
of the 1977 Act had already been allowed, and the same had conferred a vested
right in the respondents and issued necessary directions to the Corporation·
to process building plans furnished by the respondents uninfluenced by the
subsequent notification of Government and on the basis of the building bye-
laws as were prevalent at the time of initial submission of building plans by G
the respondent. Hence, this appeal by the Corporation.

Appellant inter alia contended that having regard to the subsequent
notification dated 11.08.2000 and 22.08.2000, the impugned judgment could
not have been passed by the High Court.
H
900 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Respondents inter alia contended that having regard to the purport and \-
object of the 1977 Act, once a building plan is sanctioned in terms thereof,
the Municipal Corporation is required to only supervise the construction
thereof in exercise of its functions under the 1994 Act; that the appellant
being a local authority, a building plan sanctioned by the State in terms of the
1977 Act would be binding on it and could not have rejected; that the building
B plan submitted by the respondents having already been approved, the Municipal
Corporation was bound to act thereupon irrespective of the effect of
notification; that in any even as the application for building plans submitted
on 07.07.1999 was neither rejected nor accepted within a period of sixty days
therefrom, the sanction of the plan would be deemed to have been granted in
C terms of the provisions contained in Section 247 of the 1994 Act; and that
) -
unnecessary delay was caused by the appellant-Corporation in dealing with
the respondents' application for grant of sanction for the building plans.

Allowing the appeal, the Court

D HELD: 1. The Himachal Pradesh Town and Country Planning Act, 1977
and the Himachal Pradesh Municipal Corporation Act, 1994 operated in
different fields and they are complementary and supplementary to each other.
The provisions of both the Acts can be worked out. There is no conflict between
the two Act'i. The 1977 Act deals with laying down the broad policy. It provides
for preparation of development plans including the internal development plans.
E Indisputably, such development plans when made would be binding upon the
local authority. It may, however, be not correct to contend that despite the fact
that the operation of the Acts cover two different fields, namely, the 1977 Act
deals with laying down the overall policy matter and the 1994 Act deals with
the grant of building plans in terms of the provisions thereof by the
p Commissioner of the Municipal Corporation; only because sanction for
development in the Mall Area of the town ofShimla was granted by the State
in terms of the 1977 Act, the same would mean that the same was binding
upon the Municipal Corporation or that the provisions of the 1994 Act or the
building bye-laws were not required to be complied with at all. Even in the
order of sanction passed in favour of the respondents by the State, a condition
G was imposed that before undertaking the development activities by way of
erection of the building, the respondents would take the requisite sanction ..
from the Municipal Corporation. Even if such a condition had not been imposed,
the provisions of the Municipal Corporation Act would operate.
[Paras 32 and 33] [915-D-G]
COMMNR. OF MUNICIPAL CORPN., SHIMLA v. PREM LATA SOOD 901
~ 2. Section 243 of the 1994 Act clearly mandates that erection of a A
building must precede grant of express sanction of a building plan. How and
in what manner the same is required to be dealt with is provided in Sections
244 and 245 of the 1994 Act. Clause (a) of sub-section (2) of Section 246 in
no uncertain terms restrict the power of the Appellant-Corporation to grant
sanction for erection, inter alia, for development of an area by way of erection
of a building or otherwise, not only if the same is not in conformity with the B
building bye-laws, but also if it contravenes any other law or rules operating
in the field. The 1977 Act is one of such Act. The provisions thereof are
binding upon the local authority. Once the provisions thereof are held to be
\
binding, the law made by the State by way of subordinate legislation in the
form of the regulations and/or notifications issued under sub-sections (4) and c
(5) of Section 17 of the 1977 Act would also be binding. Indisputably, the
Municipal Corporation would not have any authority to grant any sanction in
violation thereof. (Paras 34 and 35] (915-H; 916-A-C]

3. The State of Himachal Pradesh imposed a temporary freeze on the
development activities in the Mall area by an order dated 17.04.2000. The D
said order was also binding upon the appellant-Corporation and no permission
could have been granted in favour of the respondents in violation thereof. The
•... said purported temporary freeze on the construction activities imposed in terms
of the notification dated 17.04.2000 came to be clarified by the State on or
about 25.07.2000. But by reason thereof, the State could not have directed
the Municipal Corporation to grant sanction, as a statutory authority must
E
be permitted to perform its statutory functions in respect whereof even any
higher authority cannot issue any direction. [Para 37] (916-G-H; 917-A]

Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952) SC
16, Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New F
.... Delhi and Ors., AIR (1978) SC 851 and R. S. Garg v. State of Uttar Pradesh
~
and Ors., [2006] 6 SCC 430, referred to.

4. It is now well-settled that where a statute provides for a right, but
enforcement thereof is in several stages, unless and until the conditions
precedent laid down therein are satisfied, no right can be said to have been G
vested in the person concerned. The law operating in this behalf is no longer
res integra. [Para 39] (917-D]
.....
Howrah Municipal Corpn. and Ors. v. Ganges Rope Co. Ltd. and Ors.,
[2004] l SCC 663, union of India and Ors. v. Indian Charge Chrome and
H
902 SUPREME COURT REPORTS (2007) 6 S.C.R.

A Anr., (1999) 7 SCC 314, S. B. International Ltd. v. Asstt. Director General of
Foreign Trade, [19961 2 SCC 439, Ku/deep Singh v. Govt. of NCT of Delhi,
12006] 5 SCC 702 and West Bengal etc. v. Terra Firma Investment & Trading
Pvt. Ltd. etc., 1199511 SCC 125, referred to.

Director of Public Works v. Ho Po Sang, (1961) AC 901: 1196112 All
B ER 721, referred to.
Lakshmi Amma v. Devassy, (1970) KL T 204, cited.

Live Oak Resort {P) Ltd. and Anr. v. Panchgani Hill Station Municipal ;
Council and Anr., 12001] 8 SCC 329 and M.C. Mehta (Badkhal and Sura} '
C Kund Lakes Matter) v. Union of India and Ors., (19971 3 SCC 715,
distinguished.

T. Vijayalakshmi and Ors. v. Town Planning Member and Anr., 12006] 8
sec 502, held inapplicable.
D 5. Section 247 of the 1994 Act no doubt provides for a legal fiction
specifying a period of sixty days, within which the application for grant of
sanction of a building plan should be granted, Lut the said period evidently
has been considered to be providing for a reasonable period during which such
application should be disposed of. However, only because the period of sixty
E days has elapsed from tht date of filing of application, the same by itself would
not attract the legal fiction contained in Section 247 of the 1994 Act. Although
a deeming provision has been provided in sub-section (1) of Section 247 of
the 1994 Act, the same will have restricted operation. In terms of the said
provision, the period of sixty days cannot be counted from the date :if the
original application, when the building plans had been returned to the applicant
F for necessary clarification and/or compliance of the objections raised therein.
If no sanction can be granted, when the building plan is not in conformity
with the building bye-laws or has been made in contravention of the provisions
of the Act or the laws the restriction would not apply despite the deeming
provision. A legal fiction, as is well-known, must be construed having regard
G to the purport and object of the Act for which the same was enacted.
[Paras 36, 47 and 48] [916-D, E; 919-G-H; 920-A-B)

lshikawajma-Harima Heavy Industries Ltd v. Director of Income Tax,
Mumbai, (2007) 1 SCALE 140 Para 36, relied on. ,..

6. Furthermore, since special regulations have been framed in the town
H
COMMNR. OF MUNICIPAL CORPN., SHIMLA v. PREM LATA SOOD [S.B. SINHA,J.] 903
)
-c< of Shim la, the core area as provided for in the regulation is required to be A
protected. The area in question has been declared to be a heritage zone, and
hence no permission to raise any construction can be issued, which would
violate tl>e ecology. Such regulations have been framed in public interest.
Public interest, as is well-known, must override the private interest.
[Para 53! (921-E-F] B

Friends Colony Development Committee v. State of Orissa and Ors., AIR
(2005) SC I para 22, relied on.

. \ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2525 of2007.

From the Final Order and Judgment dated 16.8.2005 of the High Court C
ofHimachal Pradesh at Shimla in C.W.P. No. 1642/2002.

Anil Nag for the Appellant.

A.K. Ganguly, Sr. Adv., K.V. Vishwanath, Bamali Barsak and Rajesh
Srivastava for the Respondents. D
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. This appeal is directed against the judgment and order dated 16.08.2005 E
passed by a Division Bench of the High Court ofHimachal Pradesh at Shimla,
whereby and whereunder the writ petition filed by Respondent Nos. 1 to 5
herein, praying, inter alia, :

"(i) That the respondents may be directed to accord necessary
planning permission to the petitioners for construction of hotel F
pursuant to Annexures-PA, PB, PC & PG in a time bound
schedule;
(ii) That the impugned Annexures-PD, PE, PF & PH, dated 24.3.1998,
1.9.1999, 6.6.2000 & 8.2.2002 respectively may be quashed and
set aside"; G
was allowed.

3. The State ofHimachal Pradesh enacted 'The Himachal Pradesh Town
and Country Planning Act, 1977' (for short, 'the 1977 Act') to make provisions
for planning and development as well as use of land; to make better provision H
904 SUPREME COURT REPORTS (2007) 6 S.C.R.

A for the preparation of development plans and sectoral plans with a view to
ensuring that town planning schemes are made in a proper manner and their
execution is made effective to constitute the Town and Country Development
Authority for proper implementation of town and country development plan,
to provide for the development and administration of special areas through
the Special Area Development Authority to make provisions for the compulsory
B acquisition of land required for the purpose of the development plans and for
purposes connected with the matter aforesaid.

4. 'Development' has been defined in Section 2(g) of the 1977 Act to
I
mean:
c "development" with its grammatical variations means the carrying out
of a building, engineering, mining or other operations in, on, over or
under land, or the making of any material change in any building or
land, or in the use of either, and includes. sub-division of any land;"

'Planning area' has been defined in Section 2(o) of the 1977 Act to
D mean:

"planning area" means any area declared to be planning a~ea under
this Act;"

5. Section 3 of the 1977 Act provides for appointment of a Director or
E other officers for the purpose of carrying out the functions under the provisions
of the said Act. Section 10 of the said Act provides for restriction on use of
land or development thereof, sub-sec.!_ion (3) whereof reads as under :

"(3) If any work is carried out in contravention of the provisions of
this section, the Municipal Corporation or Municipal Committee within
F its such local area, and the Collector in area outside such local areas
may cause such work to be removed or demolished at the cost of the
defaulter, which shall be recovered from him in the same manner as
an arrear of land revenue."

G 6. Section 14 of the 1977 Act provides for preparation of development
plans by the Director. Section 17 provides for interim development plans,
pursuant to or in furtherance whereof the interim development for the planning
area has been made to which reference shall be made at an appropriate place.

7. In terms of the said provisions, an interim development plan is to be
H made after consultation with the local authority concerned. Sub-section (5) of
COMMNR.OF MUNICIPAL CORPN., SHIMLA r. PREMLATASOOD[S.B SINHA,J.] 905
Section 17 mandates the State Government to publish the interim development A
plan in the official gazette.

8. Chapter VI of the 1977 Act provides for control of development and
use of land. Section 25 thereof reads as under :

"25. The overall control of development and the use of land in the B
planning area shall, as from the date of publication in the official
Gazette ofa notification bythe State Government, vest in the Director."

. 9. Section 30 of the 1977 Act provides for an application for permission
for development by a person other than Union Government, State Government,
a local authority or a special authority constituted thereunder. An application C
therefor is required to be filed in the office of the Director. Section 31 provides
for the mode and manner in which such application shall be governed, inter
alia, stating :

"(5) If the Director does not communicate his decision whether to
grant or refuse permission to the applicant within two months from the D
date of receipt of his application, such permission shall be deemed to
have been granted to the applicant on the date immediately following
the date of expiry of two months.

JO. Chapter IX provides for control. Section 76 of the 1977 Act provides
for a non-obstante clause in terms whereof the Government is empowered to E
review plans etc. for ensuring conformity, in the following terms :

"76. Notwithstanding anything contained in any other enactment for
the time being in force, the State Government may, with a view to
ascertaining that no repugnancy exists or arises with the provisions F
of this Act or the rules made thereunder, review the town improvement
schemes, building plans or any permission for construction sanctioned
or given by any authority under development plans, sanctioned under
•
any enactment for the time being in force and may revoke, vary, or
modify any scheme, plan, permission or sanction in conformity with
the provisions of this Act : G
Provided that no order under this section shall be made without
giving a reasonable opportunity of being heard to the persons affected
thereby."

11. The said Act, thus, provides for an overall policy to be taken by the H
906 SUPREME COURT REPORTS (2007] 6 S.C.R.

A authority as well the State Government.
12. The State of Himachal Pradesh also enacted the 'Himachal Pradesh
Municipal Corporation Act, 1994' (for short, 'the 1994 Act'). A municipal
corporation constituted under the said provisions is a iocal authority within
the meaning of the provisions of the 1977 Act.
B
13 .'Section 243 of the 1994 Act provides that every person who intends
to erect a building shall apply for sanction by giving notice in writing of his
intention to the Commissioner in such form and containing such information
as may be prescribed by the bye-laws made in that behalf. Despite the fact
C that the 1977 Act provides for filing of an application for a development plan,
t
when an interim development plan has been made, the 1994 Act also provides
for sanction of a building plan, if a person intends to execute any of the works
specified under Section 244 of the 1994 Act. The said provision lays down
that every person who intends to execute any of the works specified therein
shall apply for sanction by giving notice in writing of his intention to the
D Commissioner in such form and containing such information as may be
'"prescribed by the bye-laws made in that behalf. Section 245 of the 1994 Act
provides for issuance of a notice wherein the purpose for which it was
intended to use the building is required to be specified in the following terms:

"245.(1) A person giving the notice required by section 243 shall
E specify the purpose for which it is intended to use the building to
which such notice relates and a person giving the notice required by
section 244 shall specify whether the purpose for which the building
is being used is proposed or likely to be changed by the execution
of the proposed work.

F (2) No notice shall be valid until the information required under
sub-section (I) an'.! any further information and plans which may be
required by bye-laws made in this behalf have been furnished to the
satisfaction of the Commissioner along with the notice."

14. Section 246 which provides for the power of the Commissioner to
G grant or refuse to grant such sanction, which is relevant for our purpose,
reads as under :

"246(1).- The Commissioner shall sanction the erection of a building
or the execution of a work unless such building or work would
contravene any of the provisions of sub-section (2) of this section or
H
COMMNR. OF MUNICIPALCORPN.,SHIMLA "· PREMLATASOOD[SB SINHA,J.J 907

the provisions of section 250. A
(2) The grounds on which the sanction of a building or work may
be refused shall be the following, namely :-

(a) that the building or work, or the use of the site for the building
or work or any of the particulars comprised in the site plan, ground B
plan, elevation, section or specification would contravene the
provisicns of any bye-law made in this behalf or of any other law or
rule, bye-law or order made under such other law;

(b) that notice for sanction does not contain the particulars or is
not prepared in the manner required under the bye-laws made C
thereunder has or have not been duly furnished;

( c) that any information or documents required by the
Commissioner under this Act or any bye-laws made thereunder has
or have not been duly furnished;

(d) that in cases falling under section 222 lay out plans have not D
been sanctioned in accordance with section 223;

(e) that the building or work would be an encroachment on
Government land or land vested in the Corp,1ration;

(f) that the site of ;he building or work does not abut on a street E
or projected street and that there is no access to such building or
work from any such street by a passage or pathway appertaining to
such site;

(g) that the building or work would be in contravention of any
scheme sanctioned under section 260; and F
(h) that a building for habitation, d~es not provide for a flush or
a water seal latrine.

_, (3) The Commissioner shall communicate the sanction to the person
who has given the notice; and where he refuses sanction on any of G
the grounds specified in sub-section (2) of this section or under
section 250 he shall record a brief statement of his reasons for such
refusal and communicate the refusal alongwith the reasons therefor to
the person who has given the notice.

(4) The sanction or refusal as aforesaid shall be communicated in H
908 SUPREME COURT REPORTS (2007] 6 S.C.R.

A such manner as may be specified in the bye-laws made in this behalf."

15. Section 247 of the 1994 Act provides for a deeming provision in the
following terms :

"247.(1) Where within a period of sixty days after the receipt of
B any notice under section 243 or section 244 or of the further
information, if any, required under section 245 the Commissioner does
not refuse to sanction the building or work or upon refusal does not
communicate the refusal to the person who has given the notice, the
Commissioner shall be deemed to have accorded sanction to the
building or work and person by whom the notice has been given shall t
c be free to commence and proceed with the building or work in
accordance with his intention as expressed in the notice and the
documents and plans accompanying the same :

Provided that if it appears to the Commissioner that the site of the
proposed building or work is likely to be affected by any scheme of
D acquisition of land for any public purpose or by any proposed regular
line of a public street or extension, improvement, widening or alteration
of any street, the Commissioner may withheld sanction of the building
or work for such period not exceeding sixty days as he deems fit and
the period of sixty says shall be deemed to commence from the date
E of the expiry of the period for which the sanction has been withheld.

(2) Where a building or work is sanctioned or deemed to have
been sanctioned by the Commissioner under sub-section (I), the
person who has given the notice shall be bound to erect the building
or execute the work in accordance with such sanction but not so as
F to contravene any of the provisions of this Act or any other law or
of any bye-law made thereunder.

(3) If the person or any one lawfully claiming under him does not
commence the erection of the building or the execution of the work
within one year of the date on which the building or work is sanctioned
G or is deemed to have been sanctioned, he shall have to give notice
under section 244, or, as the case, may be, under section 243 for fresh
sanction of the building or the work and the provisions of this section
shall apply in relation to such notice as they apply in relation to the
original notice.

H (4) Before commencing the erection of a building or execution of
COMMNR. OF MUNICIPAL CORPN., SHIMLA "·PREM LATA SOOD [S.B. SINHA, J.] 909
a work within the period specified in sub-section (3), the person A
concerned shall give notice to the Commissioner of the proposed date
of the commencement of the erection of the building or the execution
of the work.

Provided that if the commencement does not take place within
seven days of the date so notified, the notice shall be deemed not to B
have been given and a fresh notice shall be necessary in this behalf.

(5) Where the building plan is sanctioned or deemed to have been
sanctioned, the person, at whose instance building operations are to
be carried on, shall, after the excavation of the foundation and before
starting construction thereon, intimate the Corporation about the C
excavation of the foundation.

(6) For the purpose of ascertaining, whether the strata of the land,
over which a building is to be erected is geologically fit, and the
building operation thereon can be carried out in accordance with the
sanctioned plan, the Corporation may, within seven days from the D
intimation under sub-section (5), cause ins.pection of excavated
foundation to be made by such persons as it may direct, and in such
manner as may be prescribed :

Provided that the person at whose instance the building operations
are carried out shall be associated in the inspection. E
(7) The persons making the inspection under sub-scection (6), may
communicate to the person, from whom intimation under sub-section
(5) has been received, its views in regard to the result of such
inspection and may after ascertaining the opinion of the said person,
recommend to that person the action to be taken as a result of such F
inspection and also report to the Commissioner the action, if any,
which is proposed to be taken for the purposes of implementation of
any such recommendation.

(8) On the receipt of the report under sub-section (7), the G
Corporation may, within seven days from the date of intimation under
sub-section (5), give such direction to the person concerned, as it
may deem fit."

I6. We may, however, notice that a similar Act which was then prevailing,
namely, Himachal Pradesh Municipal Corporation Act, 1979 was repealed. H
910 SUPREME COURT REPORTS [2007] 6 S.C.R

A 17. Respondent No.1 to 5 herein (hereinafter referred to as 'the ')<.
respondents) intended to construct a hotel on the Mall Road in the town ol
Shim la. They filed an application for grant of planning pennission to the Town
and Country Planning Department on 27.06.1994. Such permission was
approved by the Government ofHimachal Pradesh by an order dated 16.01.1998.

B 18. The Executive En~ineer of Respondent No.6 herein granted
permission under sub-section '· ) of Section 31 of the 1977 Act subject inter
alia, to the condition that building permission should be obtained from the
local authority concerned before commencement of the development.

19. An application for sanction of the building plan in terms of the
C provisions of the 1994 Act and building bye-laws framed thereunder was
submitted by Respondent No. I on 07.07.1999. The Municipal Corporation,
however, returned the said plans asking for certain clarifications. Such
clarifications evidently had been asked for by the appellant herein in terms
of Section 246 of the 1994 Act.
D
20. Respondents resubmitted the plans upon purported compliance of
the objections raised in the said letter dated 01.09.1999 only on 10.04.2000.
However, immediately thereafter a purported temporary freeze on construction
activities in some areas appertaining to Shimla Planning Area was issued by -(
the Government of Himachal Pradesh, stating :
E
"I am directed to say that it has been decided by the Government
that all development activities in banned area of Shim la planning area
are to be temporarily frozen till the finalization of new guidelines to
be framed by the government for these area.

F In view of the above decision of the government on planning
permission cases are to be approved or sent to this department till
further orders."

21. Respondents were informed thereabout by the appellant in terms of
its letter dated 06.06.2000, stating :
G
"Application for construction of house submitted on 10.4.2000 by
you. On receipt of report from various departments, the case has been
considered in which proposed hotel on Khasra Nos. 315, 316, 317, 3 18,
321, 322, 320, 310, 311, 313, 312, 319 at Talpat Cottage, Shimla Sanction
has been asked for.
H
COMMNR OF MUNICIPAL CORPN, SHIMLA" PREM LATA SOOD lS.B. SINHA,.!.] 911

Hence the map with the following observations has not been A
considered for sanction :

I. Pucca burjirs have not been fixed at site.
2. The proposal shown with the cutting of earth more than 3.00 M
in both the blocks cannot be allowed as per M.C. bye-laws.
B
3. The proposal for machine room structure is not as per M.C. bye-
law.
4. Report from ME has not been received.
\
5. Ground floor plan for upper Block should be shown separately
with the boundary lines. c
6. The proposal falls in banned area. As per the notification received
from Govt. of H.P. vide their letter No. PBW (B&R)(B) 24(1)91-
1 dated 17.4.2000, the development activities in banned area of
Shimla planning area have been temporarily frozen. As such the
proposal cannot be considered at this stage. D
Hence the plan is rejected and returned herewith."

22. However, a question arose as to whether the temporary freeze of
development activities in the banned area of Shimla planning area was to
apply in relation to the cases where the building plans had already been E
approved by the Government before the said date, wherefor permission had
been issued to the Commissioner, Municipal Corporation, in the following
terms:

"The temporary ban on development activities in the Shimla
Planning Area was imposed by the Government on dated 17 .04.2000. p
The building plans approved by the Government before this date need
not be detained. Therefore, the building plan cases already cleared by
the Government/Cabinet may be processed further in ac~ordance with
the Rules and Regulations."

23. Before, however, the Corporation could consider the Respondents' G
application for grant of sanction of the said development plan in terms of the
1994 Act and/or building bye-laws framed thereunder, a notification was
.... issued by the State of Himachal Pradesh purported to be in terms of sub-
sections (4) and 5 of Section 17 of the 1977 Act, making further amendments
in the interim development plans which was published in the gazette on
H
912 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 31.03.1979 and is to the following effect : .'
"(a) All Private as well as Government construction are totally
banned within the core area of Shim la Planning Area. Only construction
on old lines shall be permitted in this area with the prior approval of
the State Government. The 'core area' shall comprise of the following:
B 'Central Shimla bounded by the circular road starting from Victory
Tunnel and ending at Victory Tunnel via Chotta Shimla & Sanjauli and
the area bounded by Mall Road starting from Railway Board Building
to Ambedkar Chowk, covering Museum Hill by a road starting from
Ambedkar Chowk on the north side, joining the chowk of the Indian
C Institute of Advance Studies and following the road joining Summer
Hill post office and via upper road to Boileauganj Cho wk and then
joining the cart Road, along Cart Road to Victory Tunnel.

(b) No development, unless specifically permitted by the State
Government shall take place in the restricted area which shall comprise
D of the following :

"

24. Yet again a notification was issued by the State of Himachal Pradesh
on or about 22.08.2000 whereby and whereunder, for the existing Regulation
E J0.4.2(x)(a), the following was substituted :

"10.4.2 (xXa), CORE AREA: (i) New construction in core area shall be
allowed in respect of residential buildings upto maximum two storeys
and ancillary used thereto with the prior permission of the State
Government.
F
Provided that in case of reconstruction of old structured or building
shall be permitted by the State Government subject to the condition
that the plinth area and number of storeys on old lines shall remain
the same as were existing earlier."

G 25. Regulation 10.7 provided for a 'Heritage Zone', relevant clauses
whereof read as under :

"10.7. HERITAZE ZONE:

(A) No development for reconstruction unless specifically recommended
H by the Heritage Advisory Committee and permitted by the State
COMMNR. OF MUNICIPAL CORPN., SHIMLA r. PREM LATA SOOD [S.B. SINHA, J.] 9JJ
Government shall take place in the Heritage Zone, which shall be A
comprised of the following areas, namely :

(i) Viceregal lodge complex Complete;

(ii) One building depth on either side of the road surrounding
Viceregal lodge complex; B
(iii) One building depth on either side of the Mall road starting
from the gate of Indian Institute of Advance Studies upto Chhota
Shimla Chowk via State Bank oflndia, Scandal Point, Shimla Club and
Oak Over."

26. In view of the aforementioned amendments in the regulation declaring C
'core area' and 'heritage zone' within which only the respondents had filed
their application for grant of sanction of the building plans, no order could
be passed by the appellant.

27. In view of the aforementioned notification, the application for D
sanction of the building plans was ultimately rejected by the Corporation.

28. In the aforementioned premise Respondents filed a writ petition
before the High Court of Himachal Pradesh at Shimla, praying for the reliefs
which have been noticed hereinbefore. By reason of the impugned judgment,
a Division Bench of the said Court held that the purported declaration in E
relation to the core area and heritage zone would not apply in the case of the
writ-petitioners in view of the fact that the building plan submitted by them
before the Director in terms of the provisions of the 1977 Act had already
been allowed, and, thus, the same had conferred a vested right in them. It was
hence directed :
F
"(a) The respondent No. 3 shall process the resubmitted building
plans furnished by the petitioners uninfluenced by the notification of
the Government dated 22.8.2002. Annexure RI/A and on the basis of
the building bye-laws as were prevalent at that time, i.e. on 17.4.2000
and shall pass the order within four weeks from today.
G
(b) Needless to say, if any deficiency is found in the resubmitted
plans, on the basis of the bye-laws prevalent on 17.4.2000, the
petitioner shall remove such deficiency within a week of being pointed
out by the Municipal Corporation and the Commissioner in tum shall
pass his orders within two weeks thereafter.
H
914 SUPREME COURT REPORTS (2007) 6 S.C.R.

A (c) In case the respondent No. 3 does not comply with the aforesaid ...
''
directions within the time frame noticed above, the petitioners shall be
at liberty to carry out the construction as per their resubmined plans
on 4.12.2000 in accordance with the bye-laws as in force on 17.4.2000
after giving intimation to the Commissioner, Municipal Corporation-
respondent No. 3"
B
29. Appellant is, thus, before us challenging the aforesaid judgment.

30. Mr. Anil Nag, the learned counsel appearing on behalf of the appellant
submitted that having regard to the aforementioned notifications dated 1-
11.08.2000 and 22.08.2000, the impugned judgment could not have been passed
c by the High Court.

· 31. Mr. A.K. Ganguli, the learned Senior Counsel appearing on behalf
of the respondents, on the other hand, raised the following contentions :

(i) Having regard to the purport and object of the 1977 Act, once
D a building plan is sanctioned in terms thereof, the Municipal
Corporation is required to only supervise the construction thereof
in exercise of its functions under the 1994 Act.
(ii) Being a local authority, a building plan by the State ~anctioned
in terms of the 1977 Act would be binding on the appellant and,
E thus, the same could not have rejected; the functions of the
appellants confined only to oversee construction of the building;
(iii) In view of the clarificatory circular issued by the State of Himachal
Pradesh on 25.07 .2000, the building plan submitted by the
respondents having already been approved, the Municipal
F Corporation was bound to act thereupon irrespective of the
effect of notification dated 10.04.2000. ....
(iv) In any event, as the application for building plans was submitted ...
on 07.07.1999, in terms of the provisions contained in Section
247of the 1994 Act, having regard to the fact that the said
G application had neither been rejected nor accepted within a
period of sixty days therefrom, the sanction of the plan would
be deemed to have been granted.
. ....
(v) In any view of the matter as during pendency of the writ petition,
the Municipal Corporation granted sanction in favour of other
H applicants who were similarly situated, there is absolutely no
COMMNR. OF MUNICIPAL CORPN., SHIMLA v PRl:M LATA SQ9D [SB. SINHA,JJ 915

reason as to why the respondents should have been A
discriminated against.
(vi) Appellant being a local authority was bound to act fairly, which
would mean that they should have exercised their jurisdiction
within a reasonable time and having not done so, it does not
now lie in their mouth to rely upon the subsequent notifications B
issued by the State under Section 17 of the 1977 Act.
(vii) Unnecessary delay was caused by the appellant-Corporation in
dealing with the respondents' a))plication for grant of sanction
for the building plans. Hence the original sanctioned plan was
only valid for a period of three years, the same should be held C
to have been extended.

32. In our opinion, the 1977 Act and the 1994 Act operate in different
fields and they are complementary and supplementary to each other. The
provisions of both the Acts can be worked out. There is no conflict between
the two Acts. The 1977 Act deals with laying down the broad policy. It D
pr'.lvides for preparation of development plans including the internal
development plans. Indisputably, such development plans when made would
be binding upon the local authority. It may, however, be not correct to
f contend that despite the fact that the operation of the Acts cover two
different fields, namely, the 1977 Act deals with laying down the overall policy
matter and the 1994 Act deals with the grant of building plans in terms of the E
provisions thereof by the Commissioner of the Municipal Corporation; only
because sanction for development in the Mall area of the town of Shim la was
granted by the State in terms of the 1977 Act, the same would mean that the
same was binding upon the Municipal Corporation or that the provisions of
the 1994 Act or the building bye-laws were not required to be complied with F
at all.

y 33. We have noticed hereinbefore that even in the order of sanction
passed in favour of the respondents by the State, a condition was imposed
that before undertaking the development activities by way of erection of the
building, the respondents would take the requisite sanction from the Municipal G
Corporation. Even if such a condition had not been imposed, the provisions
of the Municipal Corporation Act, as noticed hereinbefore, would operate.

34. Section 243 of the 1994 Act clearly mandates that erection of a
building must precede grant of express sanction of a building plan. How and
in what manner the same is required to be dealt with is provided in Sections H
916 SUPREME COURT REPORTS [2007) 6 S.C.R.

A 244 and 245 of the I994 Act. Clause (a) of sub-section (2) of Section 246 in ':i..
no uncertain tenns restrict the power of the Appellant-Corporation to grant
sanction for erection, inter alia, for development of an area by way of erection
of a building or otherwise, not only if the same is not in confonnity with the
building bye-laws, but also if it contravenes any other law or rules operating
in the field.
B
35. The 1977 Act is one of such Act. As noticed hereinbefore, the
provisions thereof are binding upon the local authority. Once the provisions
thereof are held to be binding, the law made by the State by way of subordinate
legislation in the fonn of the regulations and/or notifications issued under
C sub-sections (4) and (5) of Section 17 of the 1977 Act would also be binding.
Indisputably, the Municipal Corporation would not have any authority to
grant any sanction in violation thereof.

36. Section 247 no doubt provides for a legal fiction specifying a period
of sixty days, within which the application for grant of sanction of a building
D plan should be granted, but the said period evidently has been considered
to be providing for a reasonable period during which such application should
be disposed of. However, only because the period of sixty days has elapsed
from the date of filing of application, the same by itself would not attract the
legal fiction contained in Section 24 7 of the 1994 Act. When such an application
is attended to and the defects in the said building plans are pointed out, there
E cannot be any doubt whatsoever that the applicant must satisfactorily answer
the queries and/or remedy the defects in the building plans pointed out by
the competent authority.

37. The building plans for which sanction was prayed for by the
respondents, as noticed hereinbefore, had been attended to. The purported
F
defects were removed, as noticed hereinbefore only on I 0.04.2000. Even
according to the appellant-Corporation all the defects were not removed
which had been pointed out by the appellant-Corporation in tenns of its letter
dated 06.06.2000. In any event, as noticed herein before, the State of Himachal
Pradesh imposed a temporary freeze on the development activities in the Mall
G area by an order dated 17.04.2000. The said order was also binding upon the
appellant-Corporation and no pennission could have been granted in favour
of the respondents in violation thereof. It is true, as has been contended by
Mr. Ganguli, that the said purported temporary freeze on the construction
activities imposed in tenns of the notification dated 17.04.2000 came to be
H clarified by the State on or about 25.07.2000. But by reason thereof, the State
COMMNR. OF MUNICIPAL CORPN., SHIM LA v. PREM LATA SOOD [S.B. SINHA, J.] 917

...:i' could not have directed the Municipal Corporation to grant sanction, as a A
statutory authority must be permitted to perform its statutory functions in
respect whereof even any higher authority cannot issue any direction. [See
Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952) SC 16
and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New
Delhi and Ors., AIR ( 1978) SC 851 and R.S. Garg v. State of Uttar Pradesh
B
and Ors., [2006] 6 SCC 430. '
38. In any event, as in the meanwhile, the period for which the building
plan was sanctioned by the State had expired, the question as to whether in

' the aforementioned fact situation obtaining, the respondents acquired any
vested right despite the amendments in the regulation by defining 'core area'
and providing for the heritage zone is the issue, in our opinion, is misconceived.
c
39. It is now well-settled that where a statute provides for a right, but
enforcement thereof is in several stages, unless and until the conditions
precedent laid down therein are sati! tied, no right can be said to have been
vested in the person concerned. The law operating in this behalf, in our D
opinion is no longer res integra.

., 40. In Director ofPublic Works v. Ho Po Sang, (1961) AC 901: [1961]
2 All ER 721, the Privy Council considered the said question having regard
~
to the repealing provisions of the Landlord and Tenant Ordinance, 194 7 as
amended on 9-4-1957. It was held that having regard to the repeal of Sections E
3-A to 3-E, when applications remained pending, no accrued or vested right
was derived. It was observed therein :

"In summary, the application of the second appellant for a rebuilding
certificate conferred no right on him which was preserved after the
repeal of Sections 3-A to 3-E, but merely conferred hope or expectation F
..... that the Governor-in-Council would exercise his executive or ministerial
r discretion in his favour and the first appellant would thereafter issue
a certificate. Similarly, the issue by the first appellant of notice of
intention to grant a rebuilding certificate conferred no right on the
second appellant which was preserved after the repeal, but merely G
instituted a procedure whereby the matter could be referred to the
Governor-in-Council. The repeal disentitled the first appellant from
thereafter issuing any rebuilding certificate where the matter had been
....
referred by petition to the Governor-in-Council but had not been
determined by the Governor."
H
918 SUPREME COURT REPORTS (2007] 6 S.C.R.

A [See also Lakshmi Amma v. lJevassy, (1970) KLT 204]
41. The question again came up for consideration in Howrah Municipal
Corpn. and Ors. v. Ganges Rope Co. Ltd. and Ors., [2004] 1 SCC 663, wherein
this Court categorically held :

B " ....The context in which the respondent Company claims a vested
right for sanction and which has been accepted by the Division Bench
of the High Court, is not a right in relation to ownership or possession
of any property for which the expression vest is generally used. What
we can understand from the claim of a vested right set up by the
respondent Company is that on the basis of the Building Rules, as
c applicable to their case on the date of making an application for
sanction and the fixed period allotted by the Court for its consideration;
it had a legitimate or settled expectation to obtain the sanction. In our
considered opinion, such settled expectation, if any, did not create
any vested right to obtain sanction. True it is, that the respondent
D Company which can have no control over the manner of processing
of application for sanction by the Corporation cannot be blamed for
delay but during pendency of its application for sanction, if the State
Government, in exercise of its rule-making power, amended the Building
Rules and imposed restrictions on the heights of buildings on G.T.
Road and other wards, such settled expectation has been rendered
E impossible of fulfilment due to change in law. The claim based on the
alleged vested right or settled expectation cannot be set up against
statutory provisions which were brought into force by the State
Government by amending the Building Rules and not by the
Corporation against whom such vested right or settled expectation is
F being 50ught to be enforced. The vested right or settled expectation
has been nullified not only by the Corporation but also by the State
by amending the Building Rules. Besides this, such a settled expectation
or the so-called vested right cannot be countenanced against public
interest and convenience which are sought to be served by amendment
of the Building Rules and the resolution of the Corporation issued
G thereupon."

42. In Union of India and Ors. v. Indian Charge Chrome and Anr.,
[1999] 7 SCC 314, yet again this Court emphasized:

" ... The application has to be decided in accordance with the law
H applicable on the date on .which the authority granting the registration
COMMNR. OF MUNICIPAL CORPN, SHIMLA "·PREM LATA SOOD [S.B. SINHA, .I.] 919

is called upon to apply its mind to the prayer for registration" A
43. In SB. International Ltd. v. Asstt. Director General of Foreign
Trade, [ 1996] 2 SCC 439, this Court repelled a contention that the authorities
cannot take advantage of their own wrong viz. delay in issuing the advance
licence, stating :
B
"We have mentioned hereinbefore that issuance of these licences
is not a formality nor a mere ministerial function but that it requires
due verification and formation of satisfaction as to compliance with
all the relevant provisions."

[See also Ku/deep Singh v. Govt. of NCT of Delhi, [2006] 5 SCC 702] C
44. Mr. Ganguli, however, submitted that whereas in the case of State
of West Bengal etc. v. Terra Firma Ir.vestment & Trading Pvt. Ltd. etc., [1995]
I SCC 125, the amended statute itself provided for rejection of all pending
applications, no such provision has been laid down in the notification and,
thus, the said decision is distinguishable. D
45. Ganges Rope Co. Ltd. (supra) was also sought to be distinguished

r by Mr. Ganguli, submitting (i) in the Howrah Municipal Corporation Act, 1980
there was no deeming provision; (ii) the said law had been amended; and (iii)
therein the statute used the word 'ordinarily'.
E
46. It is difficult to agree with the aforementioned contention of the
learned Senior Counsel.

4 7. There cannot be any doubt whatsoever that an owner of a property
is entitled to enjoy his property and all the rights pertaining thereto. The
provisions contained in a statute like the 1994 Act and the building bye-laws F
framed thereunder, however, provide for regulation in relation to the exercise
and use of such right of an owner of a property. Such a regulatory statute
must be held to be reasonable as the same is enacted in public interest.
Although a deeming provision has been provided in sub-section (I) of Section
24 7 of the 1994 Act, the same will have restricted operation. In terms of the G
said provision, the period of sixty days cannot be counted from the date of
the original application, when the building plans had been returned to the
applicant necessary clarification and/or compliance of the objections raised
therein. If no sanction can be granted, when the building plan is not in
conformity with the building bye-laws or has been made in contravention of
the provisions of the Act or the laws, in our opinion, the restriction would H
920 SUPREME COURT REPORTS [2007] 6 S.C.R.

A not apply despite the deeming provision.
48. A legal fiction, as is well-known, must be construed having regard
to the purport and object of the Act for which the same was enacted. [See
Ishikawajma-Harima Heavy Industries Ltd v. Director ofIncome Tax, Mumbai,
(2007) 1 SCALE 140-Para 36].
B
49. It is in the light of the aforementioned principle that the question
as to whether the respondents had acquired any vested right or not must be
considered. Strong reliance, in this behalf, has been placed by Mr. Ganguli
on a decision of the Division Bench of this Court in Live Oak Resort (P) Ltd.
C and Anr. v. Panchgani Hill Station Municipal Council and Anr., [2001] 8
SCC 329. The said decision was rendered on its own facts. In that case a
building plan had been granted; construction had been started in terms of the
building plan as also the rules which were applicable at the relevant point of
time. The question which arose for consideration therein was as to whether
a subsequent amendment to the rules, in respect of additional FSI shall have
D any effect on the sanctioned building plan, it was contended that keeping in
view the environmental question, the same will have not.

50. The said decision having been rendered in the fact situation obtaining
therein, which has no similarity to the facts of the present case, which in our
·opinion, cannot be said to have any application whatsoever. The submission
E of Mr. Ganguli that despite expiry of the period of sanction of the development
plan by the State under the 1977 Act, the same should be held to be extended,
in our opinion, cannot be accepted. Reliance has been placed by Mr. Ganguli
on MC. Mehta (Badkhal and Suraj Kund Lakes Matter). v.. Union of India
and Ors., [1997] 3 SCC 715. Therein, it was held:
F "2. No construction of any type shall be permitted, now onwards,
in the areas outside the green belt (as shown in Ex. A and Ex. B) up .,.
to one km radius of the Badhkal lake and Surajkund (one km to be
measured from the respective lakes). This direction shall, however, not
apply to the plots already sold/allotted prior to I0-5-1996 in the
G developed areas. If any unallotted plots in the said areas are still
available, those may be sold with the prior approval of the Authority.
Any person owning land in the area may construct a residential house
for his personal use and benefit. The construction of the said plots,
however, can only be permitted up to two and a half storeys (ground,
first floor and second half floor) subject to the Building Bye-laws/
H Rules operating in the area. The residents of the villages, if any, within
COMMNR. OF MUNICIPAL CORPN., SHIMLA v. PREM LATA SOOD [S.B. SINHA, J.] 921

, this area may extend/reconstruct their houses for personal use but the A
J,
said construction shall not be permitted beyond two and a half storeys
subject to Building Bye-laws/Rules. Any building/house/commercial
premises already under construction on the basis of the sanctioned
plan, prior to 10-5-1996 shall not be affected by this direction"

51. The restriction therein was imposed by the court, which was a B
judge-made law and not a statute law. Relaxation, therefore, was granted
keeping in view the rights of the parties in terms of the order passed by the
court. However, in this case, we are bound by the provisions contained in a
. .;, statute .

52. In T. Vijayalakshmi and Ors. v. Town Planning Member and Anr.. c
[2006] 8 sec 502, although exercise of jurisdiction by a statutory authority
within a reasonable time has been emphasized, but there again the applicability
of existing law has been emphasized referring to Ganges Rope Co. Ltd. (supra)
and Ho Po Sang (supra). The said decision was rendered having regard to
the fact that only a proposal of amendment was made, and no amendment as D
such had come into effect. A right of a citizen under a statute, therefore, could
not have been taken away only because a proposal was in the offing. In that
case, the State had not given its final approval having regard to the
r development of the plan. The said decision, therefore, cannot be said to have·
• any application in the instant case.
E
53. Furthermore, since special regulations have been framed in the town
of Shimla, the core area as provided for in the regulation is required to be
protected. The area in question has been declared to be a heritage zone, and
hence no permission to raise any construction can be issued, which would
violate the ecology. Such regulations have been framed in public interest.
Public interest, as is well-known, must override the private interest. [See F
..., Friends Colony Development Committee v. State of Orissa and Ors., AIR
"[
(2005) SC I para 22].

54. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. In the facts G
and circumstances of the case, however, there shall be no order as to costs.

A.KT. Appeal allowed.