Whether deemed sanction of the construction plan is permissible if it is in contravention of municipal law?

 In , Uma Shyam Parivar Trust v. State of Bihar, Division Bench of said High Court has observed:

63. However, there cannot be any doubt that the plan cannot be sanctioned which is against the mandatory provisions of the master plan and, in this view of the matter, there cannot be any deemed sanction of plan which would be in contravention of the provisions of the Act and/or mandatory provisions of the bye-laws. In other words, if a plan cannot be sanctioned by the authorities, in terms of Section 37(1) of the Act, no plan can be deemed to have been sanctioned even if the same was in violation of the mandatory provisions of the Act and the building bye-laws framed therein. Further, in any event, in case of misrepresentation or fraud as envisaged under Section 38 of the said Act, such a deemed plan may also be cancelled. The Vice Chairman of the respondent No. 2 authority in appropriate cases will also have the power to take recourse to the provisions contained in Section 40 of the said Act.

8. It is obvious that if construction itself cannot be sanctioned under Development Control Rules or Building Bye-laws, the concept of deemed sanction is not applicable to such construction. Provision for deemed sanction is made in these rules or bye-laws to induce sanctioning authority to act promptly. However, said promptness is introduced considering the fact that consequent work to be undertaken after sanction is to be completed within stipulated time by its owner. Owners also wish to avoid rising costs of construction. The concept of deemed sanction is therefore not available to presume that sanctioning authority has done something or permitted something which it itself could never have done or permitted. Thus construction which could never have been sanctioned is never deemed to have been sanctioned under this concept. Said concept is attracted when plan is perfectly in accordance with law and still the sanctioning authority does not consider it within 60 days. Some relief in equity can be considered if unauthorised construction made by invoking this principle is only irregular and compoundable under law. 

Bombay High Court

Ghanshyam S/O Chandumal Harwani ... vs State Of Maharashtra And Ors. on 8 June, 2007

Equivalent citations: 2007 (5) MhLj 25

Author: B Dharmadhikari

Bench: J Devadhar, B Dharmadhikari

Read full Judgment here: Click here

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