Calcutta High Court
Sujoy Biswas And Ors. vs Kolkata Municipal Corporation And Ors. on 3 March, 2006
Equivalent citations: 2006(2)CHN404
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. Challenging the inaction on the part of the authorities of the Kolkata Municipal Corporation for not considering the petitioners' application for renewal of the building plan in respect of premises No. 15, Netaji Subhas Chandra Bose Road, Ashok Nagar Market, Kolkata, the instant writ petition was moved by the owners of the said premises.
2. The petitioners have prayed for issuance of the direction upon the authorities of the Kolkata Municipal Corporation for early consideration of the petitioner's said application for renewal of the building plan in accordance with Rule 62 (A) of the Building Rules, 1977 for a further period of five years from the date of renewal, on payment of fees as prescribed therein.
3. The grievance against the inaction on the part of the Municipal authorities can be redressed by making them active by order of the Court. But the entire grievance of the petitioners cannot be redressed unless the incidental prayer as referred to above is granted.
4. In fact, the real issue before this Court is as to whether the petitioners' prayer for renewal of the building plan can be considered in accordance with Rule 62 (A) of the Building Rules, 1977 or not.
5. Let me now consider the said issue first.
6. A building plan was submitted by the petitioners during the financial year 1987-88 to the then concerned authority of the Kolkata Municipal Corporation for sanction. At the time of submission of the said building plan, Building Rules, 1977 was in vogue. Accordingly, the petitioners prayed for sanction of the said building plan under the said Building Rules, 1977.
7. Pending consideration for grant of such sanction, the Calcutta Municipal Act, 1951 was repealed with effect from 4th January, 1984 i.e., the date when the Kolkata Municipal Corporation Act, 1980 came into operation. The Building Rules, 1990 which was framed under the Kolkata Municipal Corporation Act, 1980 came into force with effect from 8th December, 1990.
8. Under normal circumstances, when an Act is repealed, no one can seek any benefit and/or right under the repealed Act unless such benefits and/or rights are saved by the subsequent legislation. The provisions contained in Schedules III, VIII, IX, XI, XII, XIII, XIV, XV, XVI, XVII, XIX, XX, XXI and XXII of the Calcutta Municipal Act, 1951 were saved under Section 635(2)(f) of Kolkata Municipal Corporation Act, 1980 only to the extent that those provisions will continue to remain in force until corresponding provisions are made under the W.B. Act 59 of 1980.
9. I have already indicated above that Building Rules, 1990 came into operation with effect from 8th December, 1990 and as such the provisions contained in the various Schedules of the Calcutta Municipal Act, 1951 as referred to above, ceased to operate with effect from the said date. Thus, the prayer for grant of sanction was required to be considered under the Building Rules of 1990 with effect from 8th December, 1990.
10. The Government, however, granted certain relaxation to the plans which were submitted on or before 11th December, 1990 vide Annexure 'P-5' to the writ petition which was issued on 2nd March, 1991 by the Chief Secretary, Government of West Bengal to the Municipal Commissioner, Calcutta Municipal Corporation. The direction which was given in the said document with regard to the plans which were submitted on or before 11th December, 1990 was as follows:
(2) The plans which were submitted on or before 11th December, 1990 should be disposed of in accordance with the Building Rules which were in force on the date of submission of plans. No reference should be made to the CMDA for the purpose of clearance of ODP.
11. Admittedly, the building plan of the petitioners which was submitted during the financial year of 1987-88 was sanctioned by the Kolkata Municipal Corporation on 10th June, 1996 by following the aforesaid direction of the Government as contained in Annexure "P-5" to the writ petition.
12. The said plan remained valid till 9th June, 2001. The petitioners, however, could not complete the entire construction within the validity period as they were prevented by the Municipal authorities from carrying on construction repeatedly during the said validity period.
13. The Municipal authorities, however, justified their action by submitting that since the petitioners raised illegal construction in deviation of the sanctioned plan in the said premises, the Municipal authority had no other alternative but to compel the petitioners to stop raising further construction in the said premises. Demolition proceeding was also initiated and ultimately demolition order was passed in respect of the unauthorised construction viz., extended portion of building in the southern side beyond sanction measuring 3 metre X 13.400 metre which was described in the precis as item No. 11 and the rest portion of the unauthorised construction was allowed to be retained as per Building Rules 40 (1)(c) of KM.C. Building Rules, 1990 under the head of "other fees'. The said order was passed by the Special Officer, Building, K.M.C. in demolition Case No. 24-D/2001-2002, Br. X on 27th December, 2004.
14. The petitioners applied for renewal of the sanction before the concerned authority on 21st May, 2001 i.e., within the validity period of the sanctioned plan.
15. The petitioners now claim that since their plan was sanctioned under the Building Rules, 1977, renewal of the sanction should be granted under the said rules.
16. Mr. Chatterjee, learned Senior Counsel, appearing for the petitioners, submitted that various changes have been brought in under the present Building Rules of 1990. Thus, if prayer for renewal is to be considered under the Building Rules of 1990, then the entire construction which has been made so far as per the sanctioned plan, is required to be demolished altogether as further construction on the existing structure cannot be made in conformity with the present Building Rules of 1990. Mr. Chatterjee further submitted that such a situation cannot be conceived of in reality.
17. Mr. Chatterjee further pointed out that the present Building Rules of 1990 does not contain any provision under which renewal can be granted to the plan which was sanctioned under the old Building Rules of 1977. According to Mr. Chatterjee under such situation renewal should be granted under the Building Rules of 1977 particularly in view of the fact that initial sanction was granted to the said building plan under the Building Rules of 1977 as per the direction of the State Government as contained in Annexure 'P-2' to the writ petition.
18. Mr. Das Adhikary, learned Senior counsel appearing for the Kolkata Municipal Corporation, refuted the submission of Mr. Chatterjee by submitting that the petitioners' prayer for renewal of sanction cannot be considered under the Building Rules of 1977 which stood repealed by virtue of the provision as contained in Section 635 of Kolkata Municipal Corporation Act, 1980 with effect from 8th December, 1990.
19. Mr. Das Adhikary further submitted that the prayer for renewal of sanction of such building plan can be considered by the Municipal authority under Section 399 of the Kolkata Municipal Corporation Act, 1980. According to Mr. Das Adhikary when construction has commenced but remains incomplete during the validity period of the sanctioned plan, construction cannot be continued after the expiry of the validity period without fresh sanction obtained in the manner as provided under the said Act, unless the Municipal Commissioner, on an application made in this behalf, allows an extension of such period under Section 399 of the said Act.
20. Mr. Das Adhikary contended with all emphasis that apart from Section 399, there is no other provision under which the petitioners' prayer for renewal of sanction can be considered by the Municipal authority.
21. Mr. Das Adhikary further pointed out from the demolition order appearing at page 46 of the writ petition that even the portion of the unauthorised construction was allowed to be retained subject to payment of penalty as per the Building Rules 40(1)(c) of K.M.C. Building Rules, 1990 under the head of 'other fees'. Mr. Das Adhikary contended that since the petitioners accepted the said order and deposited the penalty as per the Building Rules of 1990, the petitioners cannot claim that their prayer for renewal should be considered under the Building Rules of 1977.
22. Both the learned Advocates of the respective parties placed strong reliance on the Division Bench decision of this Court in the case of Circular Properties (P) Ltd. v. Calcutta Municipal Corporation .
23. Let me now examine the said Division Bench decision of this Court to find out its applicability in the facts of the present case.
24. On perusal of the said decision, this Court finds that exactly a similar question was decided by the Division Bench in the said case. The facts before the Division Bench in the said case were as follows:
A building plan was sanctioned on 8th April, 1985, under the Building Rules, 1977. The said building plan remained valid till 7th April, 1990. Building could not be completed within the validity period because of various Court cases between the petitioner therein and the Income Tax Authority. Renewal of the sanction was prayed for under the Building Rules, 1977, at a point of time when the Building Rules, 1990 came into operation. Such prayer was refused by the Corporation.
25. A question came up for consideration as to whether such renewal can be granted under Rule 62A of Schedule XVI to the 1951 Act or not ?
26. The Division Bench ultimately held as follows:
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.
27. It was further held therein that --
Accordingly on true construction of the provision of Section 399 of the said Act and right in the light of the provisions of Section 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 control.
28. The Division Bench further held that --
Section 399 enables the Municipal Commissioner to grant extension and accordingly, we do not see any bona fide reason 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 circumstances of this case.
29. The Municipal authority was, thus, directed to review and to extend the period for completion of the construction by fixing up a time.
30. The ratio of the said decision is binding upon this Court. As such, this Court holds that the petitioners' prayer for renewal of the sanction of their building plan can be considered under Section 399 of the Kolkata Municipal Corporation Act, 1980.
31. The reason which prevented the petitioners herein from completing the said constructions within the validity period of the sanctioned plan is wholly attributed to the wrong done by the petitioners who admittedly raised illegal construction in deviation of the sanctioned plan. As such, the petitioners cannot claim the benefit of any equitable right from this Court of Equity.
32. Mr. Das Adhikary informs this Court that his client is agreeable to extend the period of completion of the construction by maintaining the plan which was sanctioned on 10th June, 1996 provided the petitioners pay the renewal fees as per the Building Rules, 1990.
33. In the aforesaid circumstances, I dispose of this writ petition by directing the Municipal Commissioner to extend the period of completion of the construction by maintaining the plan which was sanctioned on 10th June, 1996 in the light of the provision under Section 399 of Kolkata Municipal Corporation Act, 1980 upon payment of necessary renewal fees under the Building Rules, 1990. The Municipal authority is directed to assess the renewal fees as per the Building Rules, 1990 within two weeks from the date of communication of this order. The Municipal authority is further directed to grant such extension within one week from the date of payment of the renewal fees by the petitioners.
34. The writ petition, thus, stands allowed.
35. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.