Calcutta High Court
Amalangsu Narayan Acharyya Chowdhury vs The Calcutta Municipal Corpn. And Ors. on 13 July, 1988
Equivalent citations: (1988)2CALLT325(HC)
JUDGMENT Paritosh Kumar Mukherjee, J.
1. The present writ petition was moved by the petitioner Amalangsu Narayan Acharyya Chowdhury challenging an Order of revocation of the sanctioned plan passed by the Municipal Commissioner, Corporation of Calcutta on October 1, 1985, communicated by memo., dated November 23, 1985, by the City Architect, which is Annexure 'I' to the writ petition.
2. Although the entire text of the Order has not been communicated to the writ petitioner by the City Architect, but the gist of the Order had been communicated, at the hearing Mr. Pradip Kumar Ghosh, learned Advocate appearing for the Corporation, since produced the entire records along with the said Order "in Original", this Court had given opportunity to Mr. Ghosh to file a supplementary affidavit, incorporating the entire Order, which has been submitted on July 4, 1988, by a supplementary affidavit and accordingly, which forms a part of the affidavit and the pleadings of this case.
3. It is the petitioner's case in this writ petition that earlier a sanction was granted in respect of premises No. 59/H, Turf Road, Calcutta-25, by the respondent, Corporation of Calcutta as contained in Building Sanction Plan No. 256 (IV), dated November 16, 1982, on the basis of submission of plan by the writ petitioner and construction of the premises proceeded, on the basis of the said sanctioned ,plan.
4. In the meantime, on the basis of a complaint lodged by Sri Benoy Kumar Mukherji, respondent No. 7 former Officer-in- Charge of Park Street Police Station, a resident of 59G, Turf Road, Calcutta before the Minister-in-Charge of the L.G. and U.D. Department, Government of West Bengal, on the allegations that constructions were made by the writ petitioner, not strictly in accordance with the sanctioned plan, a proceeding was started before the Deputy City Architect, and it appears that by a memo., dated March 23, 1985; (Annexure 'C') the Deputy City Architect informed Sri Benoy Kumar Mukherji, the respondent No. 7 herein as follows :
"Please refer to your Letter dated, 11-3-85 on the above subject addressed to the Hon'ble Minister-in-Charge, L.G. & U.D. Deptt. Govt. of West Bengal, which was only forwarded to the City Architect of the Calcutta Municipal Corporation. I being directed to give reply on the above subject do hereby inform you that a two-storied masonry building was sanctioned at the above premises in pursuance of building plan sanction No. 256, dated 16-11-82. The said sanction was accorded in compliance with all the prevailing Building Rules prescribed in this behalf. During inspection of the building it transpired that the first landing of the stair case was extended 0.2M. over the eastern side space towards the rear in deviation from the said building sanctioned plan and as such notice under Section 401 of the C.M.C. Act, 1980 was served upon the party.
With regards to your complaint on the apprehension of future construction by blocking the air & light of your building, situated to the Western boundary of the premises in question I am to inform you that in the joint inspection held on 14-3-85 when you were present, the measurement of the side space in between your building & that of the building already constructed at the premises in question was found to be 1.8M. which agrees to the sanctioned plan.
I do hereby assure you that strict vigilance has been ordered to be maintained over the premises and all subsequent action will be taken as per rules as & when circumstances will demand for the same."
5. Thus, it would appear from the above memo., that the Corporation Authorities were satisfied about construction of the Building, strictly in accordance with the plan.
6. Thereafter, the respondent No. 7 shifted his stand and going on lodging representations that the writ petitioner has obtained sanction for construction of building at premises No. 59/H, Turf Road, Calcutta, on suppression of facts, as it appears from "some documents", filed by the said respondent No. 7, that the petitioner submitted plan to the Corporation and finally obtained sanction, which infringed Rule 15 of Schedule XVI of the Rules. In that view of the matter, the Deputy City Architect, by his memo., dated May 13, 1985, asked the writ petitioner to show cause, within a fortnight from the issue of the letter, failing which threatened to proceed, in accordance with law.
7. Thereafter, the petitioner filed his reply, dated May 22, 1985 (Annexure 'E' to the writ petition) and disputed that there was material suppression of fact at the time of obtaining sanction of the plan infringing Rule 15 of Schedule XVI, as alleged by the Corporation Authorities in the said letter.
8. In the reply, it was also specifically asserted that the Corporation people having earlier satisfied with the construction of the building being proceeded strictly in accordance with the plan obtained in respect of premises No. 59/H, Turf Road, and in accordance with the building rules and regulations, the question of violation of the rules did not arise at all.
9. It was further alleged in the said reply that Benoy Kumar Mukherji, former Officer-in-Charge was bent upon to create all sorts of obstructions to prevent the petitioner from proceeding with the construction work, which was being carried out strictly in accordance with the sanctioned plan obtained from the petitioner's end. It was also asserted that the sanctioned plan was obtained in respect of a distinct and separate premises, having separate municipal holding number, for more than 5 years and it will further appear from the records that the said land was sold to the petitioner's elder brother Sitangshu Narayan Acharyya Chowdhury after mutation of the name in the Corporation records as a "separate premises", altogether and afterwards the said premises was gifted to the petitioner.
10. Moreover, before granting the sanction of plan in respect of the premises, "a site plan" of the premises was duly submitted to the Corporation Authorities, as per provisions of law and after proper inspection and/or verification of the same both physically as well as through the records maintained by the Corporation, the respondent authorities had sanctioned the building plan. As such, the question of infringement of any Rule 15 of Schedule XVI did not arise at all.
11. At the time of admission of the wit petition before this court, U.C. Banerjee, J, on December 11, 1985, directed the parties to maintain status quo, until further orders and passed directions for affidavits.
12. Mr. S. N. Chowdhury appearing in support of the writ petition submitted that at the time of moving of the writ petition, 2/3rd of the construction of the building in the said premises was almost complete and after the order of status quo, no further constructions have been made. Mr. Chowdhury submitted that the respondent Corporation Authorities being statutory authorities, are not entitled to alter the case from time and again having sanctioned plan, on the basis of the draft sketch submitted by the petitioner and on the basis of the inspection made by the Authorities of the Corporation, after looking into the pros and cons of the site and the building, and as such, it is not open for the Corporation Authorities to shift their stand time and again at the behest of private respondent No. 7, more so. at the instance of the Minister-in- Charge of the department, which would be evident from the letter of the Deputy City Architect set out at page 34 of the writ petition (Annexure 'C') referred to hereinabove.
13. In the second place, he submitted that the Corporation Authorities and the Deputy City Architect having satisfied that the construction was being made in accordance with the plan at the time of joint inspection made in presence of respondent No. 7, made on March 14, 1985 are not entitled to take a different stand that the plan was obtained by material suppression of fact, although there was no particulars of suppression of fact and documents supplied by the respondent No. 7.
14. Mr. Pradip Ghosh, learned Advocate appearing for the Corporation on the second day of hearing has referred to the history of the case and sanction of the plan of Original Holding No. 54/1, Goaltuli Road, from the affidavit-in-opposition affirmed on June 13, 1986, on behalf of the Corporation.
15. The case of the Corporation is as follows : -
The premises No. 54/1, Goaltuli Road was originally one composite holding. The building sanction plan being numbered as 539, dated 9th March 1926 was sanctioned in respect of the said original premises, in which certain portion of land on the rear was shown as back "open space", which was required to be kept "vacant", under the building rules, then in force under the Calcutta Municipal Act, 1923. This back "open space" is statutorily required to be always kept open to sky and vacant and no construction whatsoever is permissible thereon.
16. The said premises No. 54/1, Goaltuli Road was subsequently sub-divided into 7 Blocks and was renumbered as 55A, Turf Road. The number was subsequently changed to 59A, Turf Road, Calcutta-25. It should be stated in this connection that a three storied building running into different Blocks was constructed as per the said sanctioned plan of 1926, each having an independent stair case and the said original "open space", as shown in the plan was kept open just as side space and other space was kept open.
17. The original owners of the said composite holding was Dr. Sisir Kumar Paul and Rabindra Nath Paul. The said two Pauls sold each of the said 7 Blocks to different persons. The said 7 Blocks were renumbered as 59A to 59G, Turf Road.
18. Sri Sitangsu Narayan Acharya Chowdhury purchased the Block No. 2 of the said 7 Blocks from the said two Pauls, which has since been numbered as 59B, Goaltuli Road. It appears that the said open space which was the rear "open space" of the composite holding was included in the land purchased by the said Sitangsu Narayan Acharyya Chowdhury and the said "open space" was subsequently numbered as 59H, Turf Road.
19. By a Deed of. Gift, dated 19th December 1980, the said Sitangsu Narayan Acharyya Chowdhury is alleged to have made a gift of the said open space now numbered as 59H, Turf Road to Amalangsu Narayan Acharyya Chowdhury, being the petitioner herein.
20. It was further stated in the said affidavit that the writ petitioner having acquired the said land, being "open space", as per original sanctioned plan under 1926, plan, had applied for building sanction, representing that the said open space is an independent Plot of land, by suppressing the fact that the said land was in fact "open space", as per original sanctioned plan.
21. It was the further case of the Corporation that under Rule 15 of Schedule XVI, no sanction could be granted for construction on any land which is already allotted as "open space", in respect of another building, as the impugned sanction was granted by the respondent Corporation, without knowing that the site in question being open space as per original plan sanctioned, could not be used as building site for making construction thereon.
22. As such, when a complaint was received from Sri Benoy Kumar Mukherji of 59G, Turf Road, to the effect that the petitioner obtained building sanction by suppression of material facts that the . open land lying at premises No. 59/H, Turf Road, is actually the statutory open back space of another premises No. 54/1, Goaltuli Road (now Turf Road) and the said fact would be evident from the sanctioned plan No. 439, dated March 9, 1926 (original plan). It was also alleged by the said respondent No, 7 that the width of the common passage, as shown in the plan did not agree with the deed plan and the schedule of deed plan. It is 5 feet, whereas, the deed plan shows 8 feet 10 inches but the schedule says 12 feet, that is, 3.6 metres.
23. It was in these circumstances, that the Corporation served show cause notice on May 13, 1985, upon the petitioner why suitable action should not be taken against the petitioner for suppression of material facts and after hearing the petitioner and the respondent No. 7 and also the records of the case, the Municipal Commissioner by his order, dated November 22, 1985, revoked the plan. But it appears from Annexure 'I' at page 43 that such revocation order has been passed by the Commissioner on October 1, 1985, and not on November 22, 1985, as stated in the affidavit.
24. Mr. Ghosh has further drawn my attention to Rule 62B of Schedule XVI from Annexure 'A' of the writ petition, wherefrom it would be evident that if any time after the permission to erect any masonry building has been given, the Corporation are- satisfied that such permission was granted in, consequence of any material misrepresentation or fraudulent statement contained in the application made under Rule 50 of Schedule XVI or in the plans, elevation, sections, or specifications, submitted therewith in respect of such building they may cancel such permission, and any work done thereunder shall be deemed to have been done without permission.
25. On July 11, 1988, a supplementary affidavit was filed on behalf of Calcutta Municipal Corporation annexing the entire Order of the Municipal Commissioner passed on October 1, 1985.
26. It appears from the said Order that the Municipal Commissioner, Calcutta Corporation, has acted solely or the basis of departmental observations, as quoted in the said order, which is as follows :-
"Departmental observation :
The department has examined the B. S. Plan No. 539 dt. 9-3-26 in respect of mother premises No. 54/1, Goaltuli Road now Turf Road as produced by complainant, Sri Mukherjee and the department reports that the open land lying at premises No. 59H, Turf Road is actually the statutory open back space of the mother premises No. 54/1, Goaltuli Road now Turf Road as per sanction No. 539, dated 9-3-26. So, Sri Amalangshu Narayan Acharyya, owner of 59H, Turf Road has obtained the sanction plan No. 256, dated 16-11-82 by suppression and material representation of facts.
As such, this is a fit case for revocation in the ground as stated above."
and arrived at the conclusion that the buildnig sanction plan No. 256, dated November 16, 1982, was obtained for the "open space" of the original premises No. 54/1, Goaltuli Road, and by suppressing the said fact from the Corporation of Calcutta.
27. Mr. S. N. Chowdhury, on the resumed day of hearing, on the basis of the supplementary affidavit, submitted that the Order of the learned Municipal Commissioner suffers from perversity and the same is opposed to the law laid down by the Division Bench in the case of Lalit Mohan Mitra v. Samirendra Kumar Ghosh reported in A.I.R. 1977 Calcutta 174. In the facts of that case, in construing provision of Section 388, Schedule XVI, a sanction of a plan in respect of premises divided and renumbered as different premises belonging to different owners, the Division Bench of this Court consisting of N. C. Mukherji and B. C. Ray, JJ (as His Lordship then was) held as follows :-
"In the Municipal Act and the Building Rules contained therein there is no such thing as a "mother premises". The unit of computation under the said Act and the rules is a holding numbered as premises. When a plan is submitted for the sanction of the construction or reconstruction of a building, in a particular premises, the Building Rules must be applied to the plan in connection with the said premises. There is no scope for deeming the said premises to be a part of a larger premises, which it formed in the past, but which now has been divided and renumbered as different premises and belongs to a different owner. When accordingly the back space of certain original premises cannot be said to exist after the original premises is divided into two separate parts between two brothers after partition between them and is treated as a separate premises, the ordinary rules relating to the back space of a premises will not apply to such a case."
28. It appears that the said Division Bench has relied on a single Bench judgment of this Court of D. N. Sinha, J. in the case of Kanai Lal Paul v. Corporation of Calcutta reported in 68 Calcutta Weekly Notes 1049. Of course, in the single Bench judgment in Kanai Lal Paul's case (supra), Corporation of Calcutta was not a party, but it has been held in the said judgment of the Division Bench in no uncertain terms that in Calcutta Municipal Act, and Building Rules, there is no such thing like "mother premises".
29. Mr. Pradip Ghosh, learned Advocate appearing for the Corporation submits that on the face of the Division Bench judgment and on the basis of the interpretation made by the Division Bench, there is little scope for the Corporation Authorities to make any argument, but this court is to record his submission that the concept 'building' as denned in Section 5 sub-section (6) of the Calcutta Municipal Act, 1951, and the concept 'premises' are not same, as the expression 'premises' can only be found in fixation of a consolidated rate in Section 185(e) of the said Act, where it has been provided for keeping of municipal assessment books in respect of number of each premises and the amount payable quarterly on account of the consolidated rate. As such, the terminology 'building' and 'premises' are not synonymous, according to Mr. Ghosh.
30. After having heard all the parties at length, I am of the view that the impugned order of revocation passed by the Commissioner of Corporation of the sanctioned plan, which was passed on October 1, 1985, and communicated by memo, dated November 23, 1985, which was sanctioned on November 16, 1982, at the instance of respondent No. 7, was passed at a very belated stage when 2/3rd construction of the building was almost complete and cannot be sustained in law and is set aside.
31. Further, in my view, it is a case where the Inspectors of the Corporation of Calcutta and Surveyors, having sanctioned the impugned plan, of their own accord, should not be allowed to rise from the slumber to find out, their own lapses to detect the mistake committed by the Plan Sanctioning Department, although there is no suppression, but they have risen on the basis of the complaint of the adjoining owner, being respondent No. 7, moreover the adjoining owner is not affected in any way by his right of passage, air, light, etc., and the Division Bench decision in Lalit Mohan Mishra's case (supra) applied with full force in this case.
32. In my opinion, the Corporation authorities, by reason of grant of earlier sanction of plan, had given a 'promise' and on the basis of the promise the petitioner having constructed the building which is almost complete, acted to his detriment by spending huge sum of money and, as such, at this belated stage the Corporation Authorities should not be allowed to back track by revoking the sanction of such plan on the alleged material suppression of fact, on behalf of the petitioner, when on the face of it there is no material suppression.
33. Accordingly, in my view the Municipal Commissioner had committed error of law in arriving at the relevant conclusion in view of the judgment reported in Lolit Mohan Mitra's case (supra), as stated above.
34. Therefore, the impugned order of revocation dated October 1, 1985, communicated by the memo, dated November 23, 1985 (Annexure 'I' to the writ petition) is set aside.
35. The writ petition is thus disposed of.
36. The Order of status quo granted by this Court on December 11, 1985, is vacated.
37. There will be no order as to cost.
38. Prayer for stay of operation of my judgment, made by Mr. Barin Banerjee, appeared on behalf of the Corporation of Calcutta, is considered and refused.