R.S. Pathak, C.J.
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--
'Not withstanding anything contained In Sub-section (1) of Sub-section (3) but subject to the provisions of Sub-section (2) of Section 200 and Sub-section (2) of this section, if the committee neglects or omits, within sixty days of the receipt from any person of a valid notice of such person's intention to erect or re-erect a building, ............ to Pass orders sanctioning or refusing to sanction such erection or re-erection, such erection or re-erection shall unless the land on which it is proposed to erect or re-erect such buildings belongs to or vests in the committee, be deemed to have been sanctioned, except in go far as it may contravene any bye-law, or any building or town planning scheme sanctioned under Section 202'.
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.
4. The next question which arises is whether the communication of the order was effected within the aforesaidperiod of sixty days. The Deputy Com-missioner has relied upon the cicum-stance that a copy of the order was sent through the peon and he tried to serve it on the petitioner on August 30, 1971 but that service was refused. The petitioner complains that he was not given an opportunity to show that the report made by the peon of refusal by him was incorrect The averment contained in the writ petition has not been specifically, denied in the return. The petitioner was clearly entitled to an opportunity to rebut any material sought to be used against him in the appeal before the Deputy Commissioner. I am told by learned counsel that according to the practice generally followed. the Municipal Corporation sends its comments along with the record to the Deputy Commissioner in respect of the points raised by the appellant It would be conducive to a proper disposal of the appeal and the interest of justice if a copy of the comments was sent beforehand to the appellant to enable him to know what the case of the Municipal Corporation is in respect of the points taken by him in that appeal Admittedly, a copy of the comments was not sent to the petitioner, in the present case. The Deputy Commissioner, before reiving upon the report of the peon, should have given an opportunity to the petitioner to show that the report was incorrect.
5. A question was raked by Teamed counsel for the Municipal Corporation whether the appeal was maintainable in-asmuch as it has been directed against an order of the Executive Officer. That is a question which can be easily disposed of by the Deputy Commissioner now that the appeal will be heard by him, again.
6. Upon the aforesaid considerations, it seems to me that the impugned order of the Deputy Commissioner cannot be maintained,
7. Accordingly, the writ petition is allowed, the order of the Deputy Commissioner, dated January 19. 1972 is quashed. The appeal will now be dis-posed of afresh by the Deputy Commissioner. As the case has been pending for a long time, it is desirable, in the interests of justice, that the appeal should be disposed of forthwith. In the circumstances, I make no order as to costs.