Calcutta High Court
Circular Properties (P) Limited And ... vs Calcutta Municipal Corporation And ... on 3 November, 1995
Equivalent citations: AIR1996CAL271, AIR 1996 CALCUTTA 271, (1996) 2 CAL HN 34
ORDER Bhagabati Prosad Banerjee, JJ. 1. This is an appeal against the order dated 25 April 1995, passed by the learned trial Judge, disposing of the writ application, directing the Municipal Authorities to consider and dispose of the application filed by the appellant for extension of the period of the sanctioned plan. The facts of this case is briefly stated as follows:-- The Appellant No. 3, Williamson & Magor Co. Ltd. as owner of premises No. 22, Camac Street, Calcutta, applied for and obtained sanction of a plan from the Calcutta Municipal Corporation for construction of a building. The said plan was sanctioned on 8th April, 1985. The validity period of the said sanctioned plan was up to 7th April, 1990. 2. It is stated that after obtaining the sanction of the said plan, works for erection of the building as per the said plan was commenced by starting soil work, through a firm of Foundation Consultants, namely Technical Consultancy Services, with effect from 22nd January, 1986, and in respect of which, intimation was given to the. City Architect by a letter dated 15th January, 1986. 3. On 5th March, 1986, Williamson & Magor Co. Ltd. appointed the appellant No. 1, Circular Properties Pvt. Ltd., as contractor for construction of the building and the City Architect was informed by the letter dated 5th March, 1986, regarding the awarding of such contract and that the work would be commenced by the said contractor from 7th March, 1986. 4. It is further stated that the appellant No. 1, Circular Properties Pvt. Ltd., started work from 7th March, 1986. Excavation, Mud-mat dressing, Raft Foundation were done on a portion of the said land. 5. It is a case of the appellant that the further progress of the work was disrupted as a notice dated ..... under Section 269-UD(1) of the Income-tax Act, 1961, was served in January 1987. By the said notice, the Income-tax Authority intended to pre-emptive purchase of the said premises by the Central Government. In other words, by exercise of that section, the Central Government decided to opt for purchase of the said property. 6. The Williamson & Magor Co. Ltd., (then known as Moneill & Magor Ltd.) challenged the said order and the notice of the Income-tax Department in a Writ proceeding filed in this Court on 5 February 1987, whereupon this Court, on contested hearing, was pleased to issue a rule and pass an interim order to the extent that the transferor was restrained from making any construction or taking any action as per sanctioned plan in view of the provisions under the Income-tax Act. The transferor was also restrained from making any addition or alteration to the nature and character of the property. 7. As a result of the issue of the notice under Section 269UD (1), as well as the consequent interim order and injunction passed by this Court, the appellants were prevented from carrying out any further work on the basis of the said sanctioned plan and within the validity period of the said sanction. 8. The said writ application, challenging the validity of the notice under Section 269UD(1) of the Income-tax Act, 1961, was finally disposed of by an order dated 14 January, 1993, passed by the Hon'ble Justice Suhash Chandra Sen (as His Lordship then was), By that order, the order of the Income-tax Department, issued under that section, was quashed and the Income-tax Authority was given liberty to consider the matter afresh and pass order and to decide whether they would take over the property. The order further provided that if the appropriate authority failed to pass any order by 15 March 1993, for taking over the property, they should issue a 'no objection certificate' in favour of the owner, appellant Williamson & Magor Co. Ltd. The Income-tax Authorities did not issue any fresh order and on the contrary issued the 'no objection certificate' on 12 March, 1993. 9. After the 'no objection certificate' was issued by the Income-tax Authorities, pursuant to the order of Justice Suhash Chandra Sen (as His Lordship then was), the petitioner applied for extension of time to complete the construction on 23 March 1995. As there was no response from the respondents, a reminder was given by the appellant No. 1, acting under the authority of Williamson & Magor. Co. Ltd., to the Calcutta Municipal Authorities for the said extension by the letter dated 10 April 1995. 10. As the respondent Municipal Authorities remained completely inactive in the matter, the appellant petitioner filed a writ application, inter alia, for declaration that Rule 62A of Schedule XVI of the Calcutta Municipal Act, 1951, ultra vires the provisions of Section 399 of the Calcutta Municipal Corporation Act, 1980, with effect from January 1984, (on 4 January 1984, the Calcutta Municipal Corporation Act, 1980, came into force). Further prayer for declaration that sanction of the plan dated 8 April 1985, was to be treated as sanction without any period of limitation for completion of the work and the endorsement of the sanctioned plan time limit, limiting it to 15 April 1990, was invalid and in any event, the Municipal Commissioner was bound to oblige any law to extend the validity of the said sanctioned plan by at least for a further period of five years. Further prayer was made by the Circular No. 9 of 1994-95, which purported to restrict the operation of the power of extension under Section 399 of the Calcutta Municipal Corporation Act, 1980, to only those plans which were sanctioned under the Calcutta Municipal Corporation Rules, 1990, which came into force with effect from 8 December 1990, was arbitrary and ultra vires. 11. The writ application was heard on the affidavits by the learned trial Judge. The learned trial Judge, after hearing the parties, disposed of the writ application as the following: "In my opinion, it is not necessary at this stage to go into the aforementioned question. The petitioners have already filed an application for grant of extension of the said building plan. The said application is to be considered by the Municipal Commissioner in accordance with law. In my opinion, it will be proper if the Municipal Commissioner pass an appropriate order on the petitioners' application for extension of the period of the sanctioned building plan upon giving an opportunity of hearing to an authorised representative of the petitioners who may bring to its notice the said facts and circumstances of this case and dispose of the same in accordance with law at an early date and preferably within a period of four weeks from the date of communication of this order. It would be open to the petitioners to raise all other factual contentions before the Municipal Commissioner at the time of hearing." 12-13. The stand of the Municipal Corporation on the Affidavit-in-Opposition was that the validity period of the said plan of five years had expired on 7 April 1990, when the Old Building Rules were enforced and that no application for extension of the period of validity of the sanctioned plan was made within the validity period of five years and that the petitioner did not commence the erection of the building within the statutory period and as such the sanctioned plan stood lapse by the operation of law and in these circumstances, the appellant petitioners were required to obtain a fresh sanction of a plan and there is no question of extension of the period of the said sanctioned building plan. It was alleged that the petitioner sat tight over the matter for ten long years and if the validity period of the plan is extended, in that event, the whole purpose of the enactment of the relevant provisions of law will be defeated and/ or frustrated. 14. In order to appreciate the controversy at issue, certain provisions of the Act and/ or the rules are required to be looked into. These are: "393. Erection of building.-- (1) Every person who intends to erect a building shall apply for sanctions by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed. (2) Every such notice shall be accompanied by such documents and plans as may be prescribed. 399. Period for completion of building or work -- The Municipal Commissioner shall, when sanctioning the erection of a building or the execution of a work specify a reasonable period within which the building or the work is to be completed, and if the building or the work is not completed within a period so specified, it shall not be continued thereafter without fresh sanction obtained in the manner hereinbefore provided, unless the Municipal Commissioner, on an application made in this behalf, allows an extension of such period." 15. Rule 62A of Schedule XVI to the 1951 Act is reproduced below: "62A. Renewal of permission to erect a new building in certain cases,-- The permission to execute the work of erection of any new building (other than a hut) shall be valid for a period of five years from the date from which it is given and may be renewed thereafter for a further period of five years on payment of a fee of twenty rupees and on production of the previously sanctioned building plans." 16. The Corporation Authority, being the Municipal Authority, has issued several circulars in this behalf. The relevant circulars are Circular Nos.4 & 9 of 1994-95. The said circulars provide as follows: Circular No. (4) of 94-95. The Mpl. Commissioner now considers further extension of validity of the sanction plans after the lapse of ten years. In such cases of extension of validity all fees including sanction fees for the entire or part of the proposal, yet to be constructed, may be charged at the time of allowing such extension of period as will be granted by Mpl. Commissioner. This proposal is duly approved by the Mpl. Commissioner vide order dated 13-4-94. This Circular may be treated as a part of the Circular No. 1 of 1994-95". Circular No. 9(9) of 1994-95. In continuation of Circular No. 4 of 1994-95 dated 31-5-94 this is to state that extension of the validity of the Building permit under S. 399 of the C.M.C. Act will be considered only for the plans which were sanctioned under the Building Rules framed under C.M.C. Act, 1980 and if there is no infringement of the C.M.C. Rules, 1990". 17. In the context of the stand taken by the Municipal Authorities that the question of extension of time for making construction in respect of the plan obtained under the Old Act of 1951, is not permissible under the provisions of S. 399 of the present Act. The petitioner disclosed certain particulars showing a case of discrimination. The petitioner has given a long, list of premises in respect of which sanction was made under the provisions of 1951 Act, but the time to complete construction by way of extension of the plan was given after the new Act came into force. It is not necessary to highlight all the cases that have been cited as only few will be sufficient, which are set out below: (a) In case of Premises No. P-3. CIT Scheme V(M), the original plan was sanctioned on 24 February 1978, and the same was in respect of the four storeyed building. On 16 October, 1992, i.e., after the lapse of 14 years, five years' extension was given for the purpose of completion of the construction on the basis of the plan obtained in 1978. (b) In respect of the Premises No. 134, S. N. Banerjee Road, where the work has not yet commenced. The plan was originally sanctioned on 13 March 1978. The same was for a three storeyed building and on 5 May 1993, five years' extension had been granted for the purpose of completion of the work by extending the time under S. 399 of the said Act. (c) In respect of Premises No. 11 Dr. U. N. Brahmachari Road, (now known as. If, Loudon Street), the plan was for G+8. The plan was sanctioned in April, 1981, and two years' extension had been granted, revalidating the plan for a period from April, 1991. (d) In respect of 3C, Albert Road, which is for G+5, plan was sanctioned on 10 March, 1983, and the plan was revalidated and the time was extended by five years with effect from 9 March 1993. (e) In respect of 51, Radhanath Choudhury Road, which was for a ten storeyed building, the plan was sanctioned on 12 April, 1982, and the plan had been revalidated for a period of five years with effect from 12 April 1992. (f) In respect of 28, Hemanta Basu Sarani (8. Old Court House St.) which was for B+5, the plan was sanctioned on 18-8-1980, and the extension was given for five years with effect from 18-8-1990. (g) In respect of Premises No. 128, CIT Scheme IV (M), the plan was sanctioned on 25 February 1976, and the revalidity period of the plan was extended for a period of two years with effect from 24-2-1993. (h) In respect of 56/2A, Jubilee Park, the plan was sanctioned on 21-12-1978, and the revalidity period of the plan was extended by a period of one year with effect from 15-6-1992. (i) In respect of 9/ D, Deb Lane, the original plan was sanctioned on 26-11-1982. and it was extended up to 31 December, 1995, with effect from 14-1-1994. In the instant case, admittedly because of issue of an order by the Income-tax Authorities under S. 269UD(1) of the Income-tax Act, 1961, which was served in January 1987, and thereafter because of an interim order of injunction passed by this Court on 5 February 1987, the petitioner was prevented from making any construction whatsoever, on the land in question on the strength of the said plan which was sanctioned on 8 April, 1985, and which was valid up to 7 April, 1990. It was only after the writ application was disposed of b) the Hon'ble Justice Suhash Chandra Sen, (as His Lordship then was), of this Court, by the order dated 14 January 1993 and on the strength of the said judgment the Income-tax Authorities issued 'no objection certificate'. On 12 March 1993, the right of the appellant to make construction on the land in question, had been suspended, not on account of any fault or latches on the part of the appellant petitioner, but on account of operation of a statute and because of an interim order passed by this Court. In this connection, Mr. Pal submitted, relying upon the well-known maxim: "Actus Legis Nemini Est Damnosus.-- An act in law shall prejudice no man." "Actus Curiae Neminem Gravabit.-- An act of the Court shall prejudice no man." 18. A party may suffer because of the act of the party, but a party cannot be made to suffer because of an act of law. Similarly, because of an act of the Court, a party cannot be allowed to suffer. Mr. Pal submitted that if any right is suspended because of an interim order passed by the Court, or by an act of the law, in that event, the Court should restore that right in the interest of justice and not to penalize the party for obeying the provisions of the law and/or carrying out the interim order of injunction passed by the Court. Accordingly, in this case, admittedly the construction could not be completed under the circumstances beyond the control of the petitioner. It is an act of the law and the act of the Court which stood in the way of making the construction. The question is whether the same is a relevant factor for extension of time for making construction on the basis of a sanctioned plan by extending the period of its validation. Can the appellant be unjustly deprived of his right to make any construction, when he was prevented for grounds mentioned above? In our view, the statute in question, under which the Municipal Authority had to exercise power, has to be examined to show whether the said section enables the Court to restore the lost time and/or to restore the benefit which he has lost. Section 399 of the Act is the only provision in which a power of renewal and/ or extension of time could be made by the Municipal Authority. Section 399 of the said Act provides that the Municipal Commissioner shall, when sanctioning the plan for the execution of the work, specify a reasonable period within which such building or work has to be completed and if the building or the work is not completed within the period so specified, there are two alternative courses left in the matter. First alternative course is that "it shall not be continued thereafter without fresh sanction obtained in the manner provided". The second alternative is that "the Municipal Commissioner, on application made in this behalf, allows an extension of such a period." 19. So on true and proper construction of the said (provision), it is clear to us that no time limit is fixed by the Legislature. It has been left at the discretion of the Municipal Commissioner to fix the initial time for completion of the work and/or the building and when it could not be done within that period, in that event the work has to be completed on taking a fresh plan unless the Municipal Commissioner, on an application made to it in this behalf allows an extension of such period. The Legislature had not provided any guidelines and/or any conditions and/or restrictions in this behalf with regard to the time which is to be granted initially or extension thereof. The fixed time limit that was there under the Old Act, in which the provision was that initially a plan would be granted for a period of five years and the extension is only for another period of five years, so total time that the Municipal Authority will grant for completion of the construction was ten years in all, and there was no power to grant any further time in the matter. In the instant case, it appears that the Legislature had thought it fit that the hands of ths Municipal Authority could not be tied by prescribing any time limit but should be left to the authority and the authority concerned would consider what would be the reasonable period which will be required to complete the construction and/ or extension was necessary to complete the work. It appears to us that no express power has been conferred upon the Municipal Commissioner to refuse to grant extension, as in the case of consideration of a plan for the first time under Sec. 396 of the said Act, the Municipal Commissioner has been provided with the power to sanction a plan and also laid down the conditions and existence of grounds for which the sanction of a building or work may be refused on certain specified grounds. Under S. 396, plan may be sanctioned, if the grounds of refusal specified therein were absent. But in case of extension of time, under S. 399 of the said Act, for completion of work, no such grounds for refusal have been provided, and it also appears that no discretion has also been left to the Municipal Commissioner to reject an application for extension of period. 20. Mr. Pal, in this connection, submitted that it cannot be said and it cannot be the legislative intention to confer an uncontrolled and unguided power upon the Municipal Commissioner to refuse to grant extension and direct submission of a fresh plan. No guideline has been provided in which case fresh plan would be required for completion of the work and in which cases the Commissioner would grant extension of time. Can it be said that it is at the sweet will of the Municipal Commissioner? The Municipal Commissioner will adopt either of the two courses of action, one stringent and disastrous and the other is the most beneficial and convenient for the party. 21. Under S. 399, if the construction could not be completed, in that event it is provided firstly, that it should not be continued thereafter without a fresh plan obtained in the manner hereinbefore provided. But Mr. Ghosh, learned counsel appearing on behalf of the Municipality, could not draw our attention that any of the provisions of the Act which provides such a contingency, namely when a construction on the basis of a sanctioned plan which was sanctioned according to the law as prevailing at the time when the sanction was made, but could not be completed. In respect of such a situation, no such provision has been made for obtaining a fresh plan in respect of a building which is half finished or the work is not completed. In as much as S.393 provides that every person who intends to erect a building, shall apply for sanction, giving his notice in writing of his intention to the Municipal Commissioner, in such form and containing such information as may be prescribed. In case of a half-finished or incomplete construction, the intention to make application in the prescribed form, declaring his intention to construct, is not there as in respect of unfinished work, the mention part is over, and the intention was followed up by an act and further the execution had started. Before obtaining a fresh plan, one might have an intention and on the basis of the intention, it may be submitted and when the plan is sanctioned, in that event, the intention ceases and thereafter the intention ceases by the act of the Municipality and by payment of sanction fees and thereafter the execution of the work begins, and when the works are not completed, if any frosh application for a fresh plan is required to be made, in that event, the existing structure would become invalid and unlawful and cannot cease to exist. The Building Rules may change and the fresh plan has to be sanctioned or, the basis of the law existing and the date when a fresh sanction has to be made. In such fresh sanction, there is no question of preserving the structures made on the basis of a lapsed plan, firstly because there was no provision in the Act and/or the rules framed thereunder and secondly, in view of the subsequent changes in the law, the old structures, as it is could not be allowed to be regained and no permission to be granted to complete the construction on the basis of a plan sanctioned at a previous point of time. Or in other words, a party has to demolish the entire structure and apply for a fresh plan with fresh sanction fee and that the sanction fee is of a very substantial amount. It is a well-settled principle that the Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have the indention of the Parliament. Sometimes, however, there are overriding reasons for applying for such a construction. (See Para 321 Bennion's Statutory Interpretation). 22. It is also well-settled principle that Court seeks to avoid a construction that causes unjustifiable inconvenience to the persons who are the subject to the enactment. (See Paragraph 322 (supra)). 23. Paragraph 323 (supra) provides that the Court seeks to avoid a construction that creates an anomaly or otherwise produces an irrational or illogical result. Lord Reid said in Gill v. Donald Humberstone & Co. Ltd., (1963) 1 WLR 929, at p. 933, that: "If the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result." Lord Reid also said in Coutts & Co. v. IRC, 1953 AC 267, that: "In general if it is alleged that a statutory provision brings about a result which is so startling, one looks for some other possible meaning of the statute which will avoid such a result, because there is some presumption that Parliament does not intend its legislation to produce highly inequitable results." 24. The public authorities are required to act fairly and reasonably, the principle of fairness is a part of the principles of natural justice. 25. The intensity of judicial scrutiny by the High Court will vary according to the statutory context. Where the interest in the property is liable to be directly affected by the exercise of a discretionary power, the Courts will examine the decision maker's actions more rigorously than where such interests are not directly affected by the action taken or where there is a large policy element in the exercise of a discretion. (See Paragraph 79, Halsbury's Laws of England, Volume 1 (1)). 26. The Court will review the exercise of a discretionary power to ensure that it is lawful and reasonable. The intensity of judicial review will be more rigorous in case it interferes with the right of property. The right of property will only be interfered with under the law, which is clear. But by exercise of the discretionary power, right of property could not be left in an uncertain position and cannot be left at the whims and caprice of the authorities concerned. 27. Accordingly, on true construction of the provisions of S. 399 of the said Act, and right in the light of the provisions of S. 396 of the said Act, it cannot be said that the Municipal Commissioner has no power to grant extension of time, in case where the construction of the work could not be completed for situation beyond the control. 28. The contemporary exposition may refer, firstly, to the way a text was interpreted by Courts, legal writers and others in the period following its enactment. This shows how the statute was understood by those to whom it was addressed. Contemporary exposition may refer, secondly, to statements or statutory instruments issued by the Government contemporaneously with the Act. This shows how the Act was understood by those responsible for its enactment. (See Cross Statutory Interpretation, 2nd Edition, p. 145) 29. Accordingly, contemporary official statements and circulars and/or notifications should be regarded by the Court as the form of contemporary exposition as an aid to interpreting the statute. 30. Further, the grant of extension of time to complete the construction in respect of cases referred to clearly also indicates that the Municipal Commissioner understood the scope and ambit of power under S. 399 in that manner by granting extension that the construction could not be completed within time in view of the wide power conferred upon the Municipal Commissioner under S.399. Mr. Ghosh could not advance any argument why in this case extension had been granted and why the extension should not be granted excepting by saying that those actions were taken contrary to law. In our view, the Municipal Commissioner cannot make any discrimination according to his whims and caprice by granting extension in one case and refusing to grant in other cases when no such clear power has been conferred upon the Municipal Commissioner to refuse extension on any grounds specified therein. 31. In that view of the matter, it is a case of hostile discrimination in the case of the appellant/petitioner by taking the stand that the appellant petitioner is not entitled to get any extension of time in the facts and in the circumstances of this case. The facts of this case clearly indicate that the petitioner was compelled by operation of law and because of an order passed by this Court not to make any construction and on the face of the powers conferred under S. 399 of the said Act, there was no bar upon the power of the Municipal Commissioner to make good the loss of time which the appellant had lost by preventing them from making any construction by operation of law and/or by operation of the order passed by the High Court. Section 399 enables the Municipal Commissioner to grant extension and accordingly, we do not see any bona fide reasons and ground for taking their stand that the appellant is not entitled to grant any extension and on the contrary he is to make a fresh application for a fresh plan which would be disastrous in the facts and in the circumstances of this case. The Municipality has taken the sanction plea before formally sanctioning the plan and without preliminary steps for making construction work, but because of the fact stated above, the appellant was prevented from making any construction and as soon as the restriction imposed by the Court was lifted, an application for extension of time was made and in the facts and in the circumstances of this case, the Municipal Commissioner is bound to grant extension, but what would be the period of extension, has to be decided by the Municipal Commissioner on consideration of the factors, namely, the size of the construction and/or the nature of the construction. On that he will assess a reasonable period which will be required for the purpose of completion of the said construction in an usual manner. This Court is not in a position to fix up any time limit. But the fixing of the time limit should be left in the hands of the Municipal Commissioner, who will exercise his judgment and skill in a bona fide manner and consistent with the spirit of the Act, which is constructive and not destructive. Accordingly, the appeal is allowed. The order of the learned Trial Judge is set aside as no useful purpose would be served by directing them to consider the application when they have come up with a clear-cut stand that no such removal and/or extension could be given and the order of the learned Trial Judge would become a mere idle formality. Accordingly, the same is set aside and the appeal is allowed. The Municipality is directed to renew and to extend the period of complete the construction and fix up the time on consideration of the application which was already made by the appellant on 23 March 1995 within six weeks from date. There will be no order as to costs. A.K. Chakravarty, J.
32. I agree.
33. Appeal allowed.