Calcutta High Court
Ram Nath Mehra And Ors. vs Calcutta Municipal Corporation And ... on 17 July, 1987
Equivalent citations: (1988)2CALLT347(HC)
JUDGMENT Ajit Kumar Sengupta, J.
1. The petitioners are the owners of a portion of premises No. 48/1B, Leela Roy Sarani, Calcutta. They submitted a plan to the respondent No. 1, Calcutta Municipal Corporation, for construction of a small one storeyed house for their own residential purposes.
2. The petitioners claim to have complied with all the formalities as required under the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) and the rules and bye-laws framed thereunder and furnished all information which were prescribed under the said Act or the said Rules and bye-laws. The respondent Authorities, however, have failed and neglected to sanction the said building plan even after the lapse of two months.
3. By a letter, dated 17th February 1987 the Municipal Authorities informed the petitioners that the 'plans and application submitted under Sections 393 and 394 thereof of the said Act and Rules 47 to 50 thereunder might be accepted conditional upon further scrutiny and subject to their fulfilling certain conditions. One of the conditions was compliance with the provisions of Urban Land Ceiling Act. Apart from the said condition, the petitioners complied with all other conditions as stated in the said letter, dated 17th February 1987.
4. In this application the petitioners' contend that the Calcutta Municipal Corporation cannot withhold the sanction of the plan on the ground that no-objection certificate has not been furnished from the Urban Land Ceiling Authority.
5. The question involved in the writ application is whether the Calcutta Municipal Corporation Authorities could compel the petitioners to submit no-objection certificate under the Urban Land Ceiling Act, and on failure of the petitioners to furnish the same, whether Municipal Authority could refuse or withhold sanction of the building plan. According to the writ petitioners, there is no provision under the Calcutta Municipal Corporation Act, 1980 which empowers the Municipal Authorities to call for and which obliges the writ petitioners to submit such certificate as a condition for sanction of a building plan in respect of the said premises.
6. It has been contended on behalf of the respondents that while dealing with the proposal for sanction of a building plan the Corporation Authorities have to look into various aspects of the matter keeping in view of the relevant provision of the said Act, and rules framed thereunder. The petitioners while submitting the application for sanction of the Building Plan categorically stated therein that no-objection certificate from Competent Authority under the Urban Land Ceiling Act, had been applied for and the said certificate would be submitted shortly. However that was not done. That apart, the petitioners have not complied with all the other conditions. A portion of the said premises No. 48/1B, Lila Roy Sarani has not yet been separated and mutated in favour of the petitioners. The said application was, therefore, accepted conditionally.
7. The application for building sanction is required to be submitted under Sections 393 and 394 of the Calcutta Municipal Corporation Act, 1980. read with Rules 47 to 50 of Schedule XVI of Calcutta Municipal Corporation (Amendment) Act, 1977. Section 393 of the said Act 1980 provides that every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed and every such notice shall be accompanied by such documents and plans as may be prescribed. Rule 47(2) of Schedule XVI provides that every person intending to erect a new building or re-erect or make addition or alteration to any building shall send to the Commissioner and application for permission to execute the work with the site plan of the site, a plan of the whole building, separate plans for such floor of the building complete elevations and sanction of the work, services plans, a specification of the work and such other particulars as may be prescribed by the corporation in this behalf from time to time.
8. Rule 48 of Schedule XVI provides that every application made under Rule 47 shall be written in printed form to be supplied by the Corporation and shall state the position of the site, the No. assigned to it in the Assessment Book and its dimensions and such other particulars as may be prescribed by the Corporation.
9. Rule 51 Schedule XVI provides that :
1. "All information and documents which it may be found necessary to require and all objection which it may be found necessary to make before deciding whether permission to erect a building (other than a hut) should be given, shall be respectively required and made in one requisition and the applicant shall be apprised thereof at the time of earliest possible date.
2. Within fifteen working days after the receipt of any application under Rule 47 for permission to execute any work, the Commissioner may require the applicant (i) to furnish him with any information on matters referred to in that Rule which has not already been given in the document received thereunder or with any document prescribed by the Rule which has not been sent in, or
(ii) to satisfy him in regard to any objection which may have been taken under these Rules to the grant of permission to execute the work.
3. If any information or documents furnished under sub-rule (2) are, in the opinion of the Commissioner, in complete defective, he may within fifteen working days after the receipt of the same, require further information or documents to be furnished.
4. If any requisition is made under sub-rule (2), or sub-rule (2) is not complied with within three months the application received under Rule 47 of this schedule shall be refused."
10. Rule 52 of Schedule XVI provides for the grounds on which permission may be refused one of such grounds is that any information or documents required by the Commissioner under the Schedule have not been duly furnished.
11. Section 396 of the Calcutta Municipal Corporation Act, 1980 provides for provisional sanction or refusal of building or work. The sanction of the building may be refused on the grounds inter alia that the building or the work or the use of that site for the building or the work or any of the particulars comprised in the site plan, ground plan, elevation section or specification would contravene the provisions of the Act or the rules and regulations made thereunder or of any other law in force for the time being (Section 396(2) (a) of the said Act, 1980). And that any information or document required by the Municipal Commissioner under the act or the rules or the regulations made thereunder has not been duly furnished (Section 396(2) (c) of the said Act, 1980).
12. It is contended by Mr. Ghose that in view of the above provisions of law the Corporation prescribed an application form for building sanction. In the said prescribed application the petitioner categorically mentioned of those authorities where from certificates are necessary for consideration of the proposal. One of such certificates is from the Competent Authority under the Urban Land (Ceiling and Regulations) Act 1976 and the petitioner undertook to submit the same shortly. Under the law the petitioners are required to submit the application for building sanction in prescribed form and they are bound to furnish such other particulars and documents as may be prescribed by the Corporation. In the present case certain certificates including the certificate from the Competent Authority under the Land Ceiling Act, 1976 as specified in the said application form are required particularly because the fact that the proposed for construction of the building has been made on the plot of land measuring about 12 cottahs which is admittedly in excess of the ceiling limit as provided under Urban Land (Ceiling and Regulation) Act, 1976. On inspection it was found that the small structure standing there upon had already been demolished. In view of the above position of law, it cannot be contended that the Authorities of the Corporation cannot require for no- objection certificate from the Competent Authority under the said Act, 1976. As a matter of fact in this particular case it has been prescribed that the said certificate is necessary and in that view of the matter the petitioners are required to furnish the document when required. That apart the petitioners failed to comply with their undertaking as regards submissions of the said certificate shortly after furnishing the said application. The said application for building sanction is liable to be rejected in view of the said Section 391 of the said Act, 1980 as well as Rule 52 of Schedule XVI as referred to herein above.
13. Mr. Ghosh, learned Advocate for the Calcutta Municipal Corporation has submitted that on a correct reading of the provisions of Sections 393 and 394 and Rules 47(2) and 48 it would appear that the Corporation may ask for such particulars as may be prescribed before sanction is given. In other words, the submission is that person who applied for sanction is under obligation to furnish particulars as may be provided in the form.
14. It is, however, contended on behalf of the petitioners that nothing has been prescribed in terms of Section 393 or Rules referred to above and in any event nothing has been shown to have been prescribed by the Calcutta Municipal Corporation under the said Act or the Rules framed thereunder requiring the writ petitioners to furnish such certificate under the Urban Land Ceiling Act. It is submitted that there is no form prescribed under the said Act by which such certificate may be called for.
15. I have considered the rival contentions. Section 396(1) of the said Act stipulates that the Municipal Commissioner shall sanction the erection of a building or execution of a work, unless such building or work contravenes any of the provisions of subsection (2) or sub-section (3) of the Section or Section 405 or Section 406 of the said Act. Sub-section (2) of the said Section lays down the grounds on which such sanction of a building or a work may be refused. It is submitted that none of the Clauses under the said sub-section has been infringed by the petitioners in respect of the said plan which could have entitled the respondents; to refuse or withhold sanction of the building plan. It is not the contention of the respondents that in terms of Section 396(2) of the Agt, the building or the work or the use of the site for the building or the work of any of the particulars comprised in the Site Plan, Ground Plan, Elevation, Section or Specification mentioned in the said plan submitted for sanction contravenes the provision of the said Act or ths Rules and Regulations made thereunder or any other law in force for the time being, nor has it been shown by the respondents that in contravention of Section 393(2) (b) the notice for sanction did not contain the particulars or has not been prepared in the manner required under the Rules and Regulations made on this behalf. Since the clearance certificate under the Urban Land Ceiling Act is neither an information nor a document which could be required by the Municipal Commissioner under the said Act or Rules and Regulations made thereunder, it cannot be contended that there has been contravention of Section 396(2) (c) by reason, of non-furnishing of the said certificate. Admittedly, sub-clauses (d), (e) and (f) of Section 396(2) have not been infringed, and hence the sanction of the building plan submitted by the petitioners could not be withheld on such grounds.
16. Schedule XVI of the Act contains Rules as to the use of a building site and execution of building work thereon. Rule 47(1) stipulates that no person shall erect a new building without first obtaining a written permission from the Commissioner under Rule 55. Rule 47(2) lays down that every person intending to erect a new building shall send to the Commissioner an application for permission to the work together with the site plan of the site, a plan of execute the whole building, separate plan for such floor of the building, complete elevision and sections of the work services plans, specification of the working and such other particulars as may be prescribed by the Corporation in this connection from time to time. Rule 48 specify the particulars to be furnished in and with such application made under Rule 47. This Rule again mentions "such other particulars as may be prescribed by the Corporation."
17. The petitioners are required to furnish all particulars and supply all informations as enjoined by Rules 47 and 48, and no particulars which have been prescribed by the Corporation in terms of the said Rules have been left out or withheld by the writ petitioners, since clearance certificate under the Urban Land Ceiling Act is not a document or a particular required to be furnished or information required to be supplied as prescribed by the Corporation.
18. Rule 52 lays down the grounds on which permission may be refused. Unless the respondents can show that the application of the petitioners for permission did not contain particulars or is not prepared in the manner prescribed in the Schedule [Rule 52(2)] or that any information or documents required by the Commissioner under the Schedule have not been duly furnished [Rule 52(5)] or that the non-furnishing of the clearance certificate under the Urban Land Ceiling Act is an objection which can be taken by the Commissioner under the said Rules [(Rule 56(6)] the Municipal Authorities are obliged to grant sanction of the plan and permission to erect building on the said premises and the writ petitioners are entitled to succeed on this application.
19. Mr. Ghose also contended that the proposal as made by the petitioners contravences the said Section 29 of the said Act, 1976 as a result of which the Corporation Authorities may refuse the sanction of the building or the work in terms of Section 396(2) (a) of the said Act, 1976 for contravention thereof. It is submitted that the Sections 393 and 394 of the said Act, 1980 read with the relevant rules particularly Rules 47 to 50 of Schedule XVI clearly provide that the Corporation has the power to specify the particulars as indicated to be filled in the application for sanction of a building plan. Therefore the Corporation Authorities have not committed in the wrong in requiring the particular regarding no objection from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 supported by the document. This action of the Authority concerned is absolutely within his competence and jurisdiction under the law. Reliance has been placed on a decision in the case of (1) Dinesh Ch. Banerjee and Ors. v. Corporation of Calcutta and Ors. . He further submitted that the application as submitted by the petitioners was not a proper and valid application as the same did not certain relevant particulars with supporting documents as indicated hereinbefore but the Corporation instead of rejecting the said application in limine accepted the same conditionally and asked the petitioners to furnish other relevant particulars.
20. I am, however, unable to accept the contention of Mr. Ghosh. Section 29 of the Urban Land (Ceiling & Regulation) Act, 1976 provides that no person shall construct a building with dwelling units having plinth area.
(a) Where the building proposed to be constructed is situated in an urban agglomeration falling within category A or category B specified in Schedule I, in excess of three hundred square metres.
(b) Where the building proposed' to be constructed is situated in an urban agglomeration falling within category C or category D specified in Schedule I, in excess of five hundred square metres."
21. The Urban Land Ceiling Authorities have to consider independently whether the land in question comes within the mischief of Land Ceiling Act. A sanctioned plan is not a relevant factor in determining the question. Assuming a sanction was obtained prior to the promulgation of the Land Ceiling Act, it could not have been contended by the person concerned that although the land in question upon which construction is proposed to be made comes within the mischief of Land Ceiling Act, he having got the permission from the Calcutta Municipal Corporation before the Land Ceiling Act come into force is entitled to construct on the said land. If the land in question conies within the mischief of Land Ceiling Act, no construction can be made without the sanction of the Competent Authorities. Therefore in granting sanction of the plan the question whether the provision of the Land Ceiling Act would be attracted or not, cannot be a factor. That apart under Section 396(2) (a) of the Calcutta Municipal Corporation Act sanction of a building may be refused if the building or the work or the use of the site for the building or the work or any of the particulars comprised in the Site Plan, Ground Plan, Elevation, Section or Specification would contravene the provisions of the said Act or the rules and the regulations made thereunder or to any other law in force for the time being. Such contravention must relate to matters specified in Section 396(2) (a). It cannot contemplate a contravention of the Land Ceiling Act. Sanction by itself cannot lead to any contravention of the Land Ceiling Act. Had it been provided under the Land Ceiling Act that Calcutta Municipal Corporation shall not sanction any plan for construction on any land coming within the Urban agglomeration without first obtaining the permission of the Competent Authority under the Land Ceiling Act. In that event the sanction could have been made subject to the permission of the Competent Authority. But that is not the case here. Sanction of the plan would authorise the person to construct a house in accordance with the sanction. If any restriction is imposed by any other Act, it is for the Authority under such Act to ensure that no construction is made without complying with the provisions of that Act. But this cannot be a ground of refusing sanction because the sanction has to be made by the Calcutta Municipal Corporation on the basis of the particulars furnished as required under the Calcutta Municipal Corporation Act and the Rules and regulations framed thereunder. Calcutta Municipal Corporation in this process cannot enforce the provision of another Act and they are not the Competent Authority to do so. In my view the direction of the Municipal Corporation asking the petitioners to furnish no objection certificate from the Competent Authority is without jurisdiction.
22. Reliance has been placed in the case of Municipal Board v. Mohd Jaki and Ors. reported in AIR 1945 Allahabad 393 where it has been held that when an application for sanction is made, it is a duty of the Municipal Authority to see whether the proposed construction in any way contravene the building bye-laws. If they do not, it is the duty of the authorities to grant the sanction.
23. The subsequent decision in the case of Mahadeo Prasad and Ors. v. The Government, United Provinces reported in AIR 1949 All 56 a Division Bench of the Allahabad High Court considered abovementioned earlier decision and explained that the Municipal Authorities have to exercise their discretion in terms of the statute and independently, and the primary consideration before it, when dealing with an application for sanction, is public health, safety and convenience or any manner relating to subjects mentioned in the Act. Hence, where a Municipal Board passed an order refusing to give sanction for the intended construction, unless the applicant first obtained the permission of the District Magistrate, on the ground that the intended construction would cause breach of the peace, such order could not be sustained, as it was illegal.
24. Reliance has also been placed in the case of Krishna Narayan Mukherjee v. State of West Bengal and Ors. reported in 1979(1) Cal. High Court Notes 484, this Court had to consider a case where the writ petitioner, after purchasing 1 1/2 cottahs of land out of a big garden, submitted before the Calcutta Corporation a building plan. The garden was recorded in the Revenue and Land Records as for the purpose of agriculture. The Competent Authority under the Urban, Land Ceiling Act wrote a letter to the City Architect of the Corporation asking him to take adequate precaution to see that no building plan in respect of the said premises were accepted. The City Architect wrote to the petitioner that in view of the communication received from the Competent Authority the plan case could not be dealt with. The petitioner challenged the communication of the Competent Authority by a writ petition. The Learned Judge struck down the said impugned communication as being unsustainable in law, and directed the Calcutta Corporation to consider the plans submitted and to grant sanction in accordance with law, provided other conditions were fulfilled as required by the law, ignoring the communication or the notice from the Competent Authority.
25. Reliance has been placed in the case of Subhas Kumar Lohade and Anr. v. The Special Officer, Municipal Corporation . There the petitioner, who was the owner of a certain plot applied in Form prescribed in Appendix A to Hyderabad Municipal Corporation Layout Rules for sanction of Layout in respect of the said plot along with a plan demarcating the roads, plots and boundaries. He also paid betterment charges. Inspite of this the Corporation did not accord sanction, but insisted on obtaining "No Objection" certificate from the District Collector with respect to his title. The Corporation insisted on production of the certificate in pursuance of a Circular issued by it on the strength of a letter of the District Collector. On a writ application of the petitioner for direction against the Corporation restraining it from insisting upon production of such a certificate, the Court held that though the Authority competent to sanction layout has the power to make enquiry and for that purpose call for further information, this power must be read in the context of the Layout Rules as also Zoning Regulation, otherwise the permission asked for should be granted. The Court held that the Circular was ultra vires the powers of the Corporation, since it was not within the four corners of Hyderabad Municipal Corporation Act and any other statutory provisions governing it. The Corporation, it was held, could not have acted beyond the said Act and other statutory provisions governing the Corporation, and therefore the said Circular is neither justified nor warranted. Accordingly, the said Circular was quashed.
26. P. C. Borooah, J. in Matter No. 1686 of 1981 (Y. D. Properties & Investment Pvt. Ltd. v. Competent Authority) has held in his judgment delivered on 14th January, 1982 that for the purpose of consideration of a building plan, no provision is there either in the Municipal Act or in the Rules. or Bye-laws framed thereunder or in the Urban Land Ceiling Act, which entitles the Corporation to ask for clearance certificate of the Competent Authority along with the plan submitted for sanction.
27. A plan has to be sanctioned strictly in accordance with the provisions of the Calcutta Municipal Corporation Act and the Rules and Bye-laws thereunder. In a recent decision of this Court in the case of Samaresh Das v. Calcutta Municipal Corporation reported in 1986(2) CHN Cal. Bhagabati Prasad Banerjee, J. held that S. 396 of the Calcutta Municipal Corporation Act does not provide that sanction of the plan can be refused in the absence of 'No objection' certificate from the CMDA.
28. A question came up for consideration before me in CR No. 11300(W) of 1982 (Chandrajit Dutt Roy v. State of West Bengal and Ors.) where the Urban Land Ceiling Authority directed the South Dum Dum Municipality not to sanction any building plan without the consent of the Municipal Authorities. There I held in my judgment delivered on 19th April 1985 that this direction was beyond the jurisdiction of the concerned Authority. The Municipal Authority have to proceed strictly in accordance with the provision of the Act and they cannot refuse sanction of the building plan if the conditions prescribed in the Act are satisfied.
29. The sanction has to be accorded if the conditions laid down are satisfied by the person who is asking for such sanction. The contention, of the respondents is that the Municipal Corporation under the law is entitled to ask for such particulars as may be relevant for grant of such sanction. But such particulars must be in connection with the land and the building to be constructed thereon and it cannot be particulars regarding certain other matters extraneous to the issue :
30. The decision in the case of Dinesh Chandra Banerjee (Supra) relied on by the respondents has no bearing on the question that has fallen for consideration in this case. There a revised building application form as approved by the Corporation was directed to be filled up by the licenced Building Surveyors. In the schedule to the said application form there are certain particulars which are required to be given and these particulars are required to be signed both by the owners and licenced building Surveyors. The Court held as follows :
"It was contended on behalf of the applicants that the particulars which were required to be furnished by the annexure to the application for sanction were really imposition of duties upon the licensed building surveyors and not merely specification of more particulars required to be given to the plan or to the application. It was, therefore, submitted that the Corporation of Calcutta has no right or authority or power under Sections 378 to 380 of the Calcutta Municipal Act, 1951, as well as Rules 50 and 51 of Schedule XVI to impose additional duties on the buildings surveyors without rules being framed under Section 532 of the Act. It was submitted that Section 380 made at clear that plans were different from the application forms. Reading the provisions of Sections 378 to 380 together, it appears to me that the Corporation has the power to specify the particulars as indicated to be filled in the application for sanction of a building plan. It is true that a new obligation has been imposed to give certain particulars in the plan for sanction but these obligations are really enforcement of additional particulars and for the verification, of the correctness of additional particulars under Rule 51(1) under sub-rule (2) of Rule 51 the other particulars have been required to be given and the fact that these are required to be given in the application to ensure that these are correct particulars by verification of1 the licensed building surveyor, does not, in my opinion, impose any additional duties which the Corporation was not competent to impose by virtue of powers under Section 378 to 380 of the Act. In the aforesaid view of the matter, I am of the opinion that the impugned letter was not beyond the power of the Corporation or ultra vires the powers of the Corporation of Calcutta."
31. For the reasons aforesaid, this application is allowed. The Calcutta Municipal Corporation shall proceed to accord sanction to the plan in accordance with the provisions of the Act and the Rules without requiring the petitioner to produce any 'No objection' certificate from the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976.
32. Such sanction shall be made within eight weeks from the date of communication of this order. This Order," however, will not prevent the Urban Land Ceiling Authority to proceed in accordance with the provisions of the Urban Land Ceiling Act against the petitioner, if they are so advised.
33. Let all parties act on the operative part of this judgment and order on the undertaking of the Advocate on Record for the petitioner to apply for and obtain a certified copy of the order and judgment made herein.