Calcutta High Court
Thakkar Estate And Finance Co. Pvt. Ltd. ... vs The Calcutta Municipal Corporation And ... on 10 February, 1994
Equivalent citations: (1995)1CALLT382(HC), 1995 A I H C 6156, (1995) 2 CAL LJ 270 (1995) 1 CALLT 382, (1995) 1 CALLT 382
JUDGMENT Bhagabati Prasad Banerjee, J.
1. This is an appeal against the judgment and order dated July 10, 1990 passed by the learned trial Judge in Matter No. 2235 of 1988. By that order the learned trial Judge dismissed the writ application filed by the appellants writ petitioners.
The appellant company is the owner of premises No. 5, Pretoria Street, Calcutta (now known as Dr. Barendra Coomar Sarani, Calcutta) on which there is already a four storeyed building which had been constructed. The said construction was made on the basis of a sanctioned plan. The area of the said premises is 2533.3 square meters, the plinth area is only 693.094 square meters and the total covered area of all the floors is 1909.92 square meters. The height of the existing building is 13.5 meters. The floor area ratio calculated in accordance with the provisions in Rule 21 of Schedule XVI of the Calcutta Municipal Corporation Act, 1951 (hereinafter referred to as "the said Act") read with Section 635 is 2.3719. According to that ratio it was alleged that the permissible floor area of the said premises to be 6008.7 square meters, whereas the existing floor area is 1909.92 square meters. The dispute started when a proposed building plan for addition of two more floors on the existing building in the said premises was submitted. The same was submitted on or about May 3, 1986. On February 17, 1987 the appellants informed the municipal authorities that they had changed their Architects. Messrs. D.C. Ghosh & Associates and, instead, appointed a new Architect, Shri Amitava Raha and on or about February 23, 1987 the appellants submitted a fresh plan for construction of two additional stories instead and place of the proposed plan submitted on May 3, 1986 with the necessary fees. After taking into consideration of the existing and the additional two proposed floors as against the permissible floor area of 8008.734 square meters, the revised proposal was for construction of 2883.438 square meters only. The proposed height of the building was 19.09 meters. On September 23, 1987 the appellants received a letter from the respondent No. 4 in which it was stated that the application for sanction of building plan submitted by the appellants was placed before the Municipal Building Committee for construction on September, 2, 1987 when the said building committee passed the following resolution :
"This is a proposal for additional of 5th and 6th Storey over the four storeyed existing building. The site a huts on Pretoria Street which is very narrow. Due to the proposal, extra traffic flow will be generated. The Pretoria Street is already overloaded from traffic point of view. It is, therefore, recommended that the party be asked to leave so much of land to make Pretoria Street 13 meters wide and that strip of land should be free gifted to Calcutta Municipal Corporation. If the party agrees to comply with above and all other departmental requisitions, the case may be recommended for sanction."
2. On receipt of the said letter, the appellant by the letter dated October 16, 1987 informed the respondent No. 4 that no extra traffic flow would be generated with the addition of two additional storeys over the existing building, the same being a private residential house in the occupation of one family only. The appellant Writ petitioners, however, stated that they agreed to co-operate with the Calcutta Municipal Corporation for widening of Pretoria Street.
3. Thereafter, the appellant Writ petitioners did not receive any reply to the said letter whereupon the appellant Writ petitioners asked the Architect to discuss the matter with the Building Department of the respondent No. 1. The appellant Writ petitioners came to know through the Architect that the respondent No. 1 was insisting on a free gift of a certain portion of the land from said premises which was allegedly required for widening of Pretoria Street and making it 13 meters wide. The appellant's case is that although the appellant writ petitioners were not bound in law to make such free gift of land and although the respondent authorities had no jurisdiction to insist on such a precondition of making gift of land for sanction of building plan the applicant writ petitioners as a gesture of goodwilll agreed to make free gift of a portion of the said premises which would be required for widening of the road. The appellant writ petitioners whereupon recorded an undertaking for making free gift of a portion of the said premises as would be required to make Pretoria Street 13 meters wide. The said portion was shown in the plan which had been submitted to the Calcutta Municipal Corporation for sanction and the appellant writ petitioners undertook to keep the said portion vacant and not to make any pucca construction thereon. The appellant Writ Petitioners further undertook that whenever any scheme for widening of the Pretoria Street would be undertaken by the Calcutta Municipal Corporation, the appellant Writ Petitioners would execute and register necessary documents for gifting of the said open land in favour of the Calcutta Municipal Corporation or Calcutta Improvement Trust as may be necessary. The said undertaking was also presented for registration with the Registrar of Assurance, Calcutta. Thereafter, by the letter dated November 23, 1987, the appellant company forwarded a copy of the letter dated November 21, 1987 from Messrs, Jhunjhunwalla & Co. in advance of the receipt dated November 29, 1987 granted by the Registrar of Assurance. The said letter was duly received by the Respondent No. 1 on November 27, 1987.
4. The respondent No. 4 wrote a letter dated February 20, 1988 to the appellant company stating, inter alia, that the appellant company would have to make a free gift of some portion of land out of premises No. 5, Pretoria Street! was per resolution of the Municipal Builidng Committee dated September 2, 1987 before obtaining sanction of the building plan. The appellant company was requested to contact the Chief Valuer and Architect of the Respondent No. 1 to complete the work in relation to the handing over of the said land to the Calcutta Municipal Corporation at an early date. It was further stated in the said letter that if the appellants failed to comply with the resolution of the Municipal Building Committee, sanction cannot be made.
5. Thereafter, Messrs. Jhunjhunwailla & Co., Advocates on behalf of the appellant Writ petitioners wrote a letter dated March 18, 1988 addressed to the respondent No. 1 stating, inter alia, that the respondents had no jurisdiction to demand a free gift of a portion of premises No. 5. Pretoria Street, Calcutta as a precondition of sanction of the building plan in question since the Appellant Writ petitioners were entitled to such sanction under the law without fulfilment of such precondition. It was further stated that, however, the appellant Writ petitioners have without prejudice to the rights and contentions undertaken to make a free gift of a portion of the said premises as would be necessary for making Pretoria Street 13 meters wide. However, the appellant) Writ ptitioners would make a gift of the said land as and when scheme for widening of Pretoria Street is taken up since it would be futile to make such a gift when there is no such scheme. It was further stated in the said letter that making of such a free gift at this stage would only result in the said strip of land being used for purpose which would cause nuisance to the existing building and the locality. It was further stated that making of a gift at present would not serve any purpose since the Pretoria Street is not 13 meters wide at any point, and hence the said strip of land would not be of any use unless the Pretoria Street is made uniformly 13 meters wide. The advocates of the appellant Writ petitioners also stated that the appellant Writ petitioners had undertaken not to make any construction on the said strip of land.
6. Since the respondents failed to take any steps for sanctioning of the building plan for addition of the two storeys over the existing building at the said premises and were insisting on making of a free gift on the portion of the said premises in favour of the Calcutta Municipal Corporation by a registered conveyance as a precondition of sanction of such building the appellant Writ petitioners filed a Writ application before this Court on or about May 10, 1988 inter alia, praying for the following reliefs :-
(a) A writ of or in the nature of a Mandamus or appropriate directions do issue commanding and directing the respondents :-
(i) to withdraw, recall and cancel the said purported resolution dated 2nd September, 1987 and the said purported letter dated 20th February, 1988 and to forbear from giving any effect thereto or acting in terms thereof;
(ii) to forthwith sanction the building plan as submitted by the petitioners for construction of two additional storeys on the existing building at the premises No. 5, Pretoria Street, Calcutta without insisting on making a free gift of a portion of the said premises for alleged widening thereof;
(b) A Writ of or in the nature of prohibition or appropriate direction do issue prohibiting the respondents from giving any effect or further effect to the said purported resolution dated 20th September, 1987 or the said purported letter dated 20th February, 1988 and from taking any steps pursuant thereto or action in terms thereof;
(c) A writ of or in the nature of Certiorari or appropriate directions do issue calling upon the respondents to certify and send to this Hon'ble Court the records relating to this case so that the said purported resolution dated 2nd September, 1987 and the purported letter dated 20th February, 1988 may be quashed and conscionable justice rendered;
(d) An appropriate Writ, order or direction do issue for production of all relevant records and for protection of all the rights of the petitioners and for granting the petitioners such relief as in the circumstances of the case shall be just;
(e) Rule Nisi in terms of prayers (a) to (d) above :
(f) Injunction restraining the respondents and each of them their servants, agents and/or assigns from giving any effect of further effect to the said purported resolution dated 2nd September, 1987 or the said purported letter dated 20th February, 1988 and from taking any steps pursuant thereto or acting in terms thereof;
(g) Direction upon the respondents and each of them, their servants, agents, and/or assigns to forthwith sanction the building plan submitted by the petitioners on the existing building at premises No. 5, Pretoria Street, Calcutta without insisting on the making of a free gift by the petitioner of a portion of the said premises for alleged widening of Pretoria Street, Calcutta;
(h) Ad-interim orders in terms of prayers (f) and (g) above;
(i) Suitable orders as to costs be given;
(j) Such further or other orders be made and/or directions be given as to this Hon'ble Court may deem fit and proper.
The respondent, Calcutta Municipal Corporation filed affidavit-in-opposition in the matter-Affidavit-in-reply was also filed by the appellant Writ petitioners.
At the suggestion of the parties, the learned trial Judge inter alia passed the following order disposing of the Writ application; on 3rd July, 1989; "M/s. Thakkar Estate & Finance Co. P. Ltd., who are the lessees in respect of land and premises No. 5, Pretoria Street, Calcutta and the said M/s. Hograjuli (Assam) Tea Co. Ltd., who are represented by the Writ petitioners to be the owners of the said land and premises, have jointly agreed to execute a free gift in favour of the Calcutta Municipal Corporation of the strip of land which is contiguous to the said Pretoria Street including all the structures, constructions, trees and plants standing thereon, which will be sufficient to widen the existing Pretoria Street from its present width, to the width of 13 meters. It is made clear that the existing Street plus the strip of land, which is to be gifted by the joint petitioners, will, taken together, come to 13 meters in all. Immediately after this order is made the Engineers on behalf of the Writ petitioners and the respondent Corporation will jointly complete the demarcation of the strip of land that is intended to be gifted as mentioned in this order and the Corporation will be entitled to put its own pillars demarcating the Corporation land as against the land of the Writ petitioners after taking into account the said strip of land as Corporation land.
The Writ petitioners and each of them also undertake to court that they will put and maintain some demarcation pillars and/or wall above the ground level also which will show the identity of the Corporation portion of the land. But it is made clear that this is not intended to prevent the Writ petitioners from using the existing passages leading to the main building for ingress and agrees.
7. The area of the subject matter of the gift will also be assessed in presence of the Corporation Engineer who will be entitled to make a note of its and the same is to be mentioned in the gift deed of approximate basis. The Writ petitioners also undertake to Court that they will demolish all constructions which are within the gifted area, excepting the boundary walls and/or the passage and/or the main gates. The Writ petitioners will after such demolition make over possession of the said strip of land to the Municipal Corporation of Calcutta who will in turn grant leave and licence to the petitioners to use the same in accordance with the existing Corporation rules at charges as per the Corporation rules.
8. The writ petitioners will be entitled to use the said strip of land only for the purposes of lawn and/or as a flower garden. The existing trees in the said strip of land may continue but the same will be the absolute property of the Municipal Corporation of Calcutta.
9. The Writ petitioners or such of them who are in possession may submit a plan for alternative construction of the pump/generator room or servant quarter within their own land and no new constructions are to be made by the Writ petitioners in the gifted portion of the Corporation land.
10. The Writ petitioners will be permitted by the Corporation to instal a canopy at the entrance to and within the strip of land but such canopy is to be kept open in all sides and may have a cover at the top but the size is not to exceed about 30 square feet. This is also made clear that the said canopy which is to be constructed by the Writ petitioners will be the property of the Corporation and the Municipal Corporation will be entitled to demolish the same as and when occasion arises. After the deed of gift is executed and the possession is made over, the Corporation and the demarcation required under the order is completed and the existing construction are demolished and new plan with regard to the pump/generator room and the servants quarters showing the gifted land separately and distinctly thereon as Corporation land, is submitted to the Corportion, the Writ petitioners will intimate the Corporation in writing about the same.
11. Mr. Mitra appearing for all the petitioners including the added petitioner, will be entitled to shift the existing generator and/or pump room and/ or durwan's quarter to such other place within their own land as they like and no further constructions are to be made without sanction.
Under all the formalities which are to be complied with, in terms of the above order, are carried out, the Municipal Corporation will within a fortnight from the reciept of intimation as aforesaid sanction the existing plan excepting in respect of the existing constructions on the strip of land which is to be gifted to the Corporation of Calcutta.
12. Mr. Mitra's clients will submit a revised plan along with requisite number of copies to the Municipal Corporation of Calcutta within 7 days from date. The said revised plan will incorporate all the corrections as are shown in the plan produced by the Municipal Corporation of Calcutta, i.e. the plan which was submitted for sanction to the Municipal Corporation and thereafter corrected, and will also show thereon, the said strip of land, which is intended to be gifted to the Corporation of Calcutta separately and distinctly as Corporation land. The said revised plan is to be signed by the owners of the land as also by all the writ petitioners.
Mr. Mitra's clients will be at liberty to file a copy of such revised plan in this Court at least after 48 hours' notice, to the Advocate-on-Record for the Municipal Corporation of Calcutta. If there is any dispute as to whether such revised plan is in accordance with the directions given by this order then and in that event, Mr. Mitra's clients will obtain a certificate from M/s. Talbot & Company, who will certify that the revised plan is in terms of this order in the context of the plan already submitted and showing the corrections shown therein. So far as the charges for the licence in respect of the strip of land are concerned, the Municipal Corporation of Calcutta may charge in accordance with the Corporation Rules from time to time.
13. All expenses with regard to the execution of Deed of Gift are to be paid and borne by Mr. Mitra's client.
If there be any dispute with regard to the revised plan and/or as to whether the said revised plan is in accordance with this order or not, the Writ petitioners as also the Municipal Corporation of Calcutta will be at liberty to apply.
The Municipal Corporation of Calcutta will be entitled to revoke the licence, in case the Municipal Corporation of Calcutta starts executing the work of widening of the Pretoria Street.
It is made clear that the Municipal Corporation of Calcutta will be entitled to use the gifted portion of the land, only for the purpose of widening the road, namely the said Pretoria Street and for all works connected therewith and incidental thereof and for no other purpose.
14. So far as the petitioner's underground connections with regard to the telephones, electricity or sewerage etc., are concerned, the same will be deemed to be belonging to the petitioner, only to the extent of the petitioner's land boundary and the rest will be deemed to belong to the Municipal Corporation of Calcutta subject to the petitioner's right to have normal supplies of domestic facilities through Corporation land.
The existing boundary wall and the existing passages in the boundary wall will continue until the Corporation takes over the possession on revocation of the licence for the purpose of widening the road,
15. The sanction is to be granted by the Municipal Corporation of Calcutta within a fortnight from the date when all the formalities as required by the Writ petitioners under this order are completed and intimation thereof is given to the Corporation. However, this is subject to the condition that the Writ petitioners will submit the revised plan within one week from today as required by this order.
16. In case the revised plan is not sanctioned in terms of this order, the writ petitioner will be at liberty to apply before this Court for suitable direetions to protect their interests. In case of default in the sanction of the plan within the time as stipulated by this Court and/or the extended time, if any, the Corporation will be bound to recovery the gifted portion of the land to the Writ petitioners at the cost of the Municipal Corporation.
This order is made at the suggestion of and request of the learned counsel appearing on behalf of the writ petitioners including the added Writ petitioner Mr. B. C. Dutt appearing on behalf of the Municipal Corporation of Calcutta does not object to the order being passed as above."
After the said order dated July 3, 1989 was passed, the appellant Writ petitioners made a further application before this Court praying, inter alia, as follows :-
"the order dated July, 3, 1989 passed by His Lordship the Hon'ble Mr. Justice Baboo Lall Jain be modified to the extent that your petitioners need not demolish any pucca construction within the area to be gifted on the undertaking of your petitioners to make over actual physical possession of the gifted area as well as the existing structures thereon to the Calcutta Municipal Corporation as and when the scheme for widening Pretoria Street to 13 meters, is undertaken by the said Corporation.
The respondents be directed to allow inspection and note down the corrections on the submitted plan and time be allowed to file revised plan with 7 days from such inspection.
Such further and other order and/or orders be made as your Lordships may deem fit and proper."
17. After hearing all the parties on affidavits, His Lordship the Hon'ble Mr. Justice Baboo Lall Jain was pleased to pass an order on September 1, 1989, inter ilia, as follows :-
"It is recorded that Mitter's clients have sent a draft Deed of Gift. The Advocate-on-Record for the Municipal Corporation of Calcutta has already considered it and the same will be forwarded by him for approval to the Building Committee of the Municipal Corporation of Calcutta and will be approved as early as possible subject to any reasonable alternation, if any, Mr. Mitter's clients will also submit their revised plan in accordance with the orders already made by to-day and the time is extended accordingly. Mr. Mitter's clients will also forward a cheque for Rs. 2000/- in favour of the Municipal Corporation of Calcutta through the Advocate-on-Record of the Municipal Corporation of Calcutta in course of this day. The amount is being paid as security for demolition charges, if at all, the Corporation has to demolish the structures within the gifted land. However, this order will not disturb the obligation of Mr. Mitter's clients to demolish all the structures within the gifted land as and when the Corporation decides to take possession for the purpose of widening of the road.
It. is recorded that M/s. Jhunjhunwalla & Co., the Advocates for the plaintiff, has this day filed the warrant of attorney on behalf of Messrs. Hoograjuli (Assam) Tea Co. Ltd., Who are the owners of the said land and premises and who are added as co-petitioner in this proceedings. The time to file such warrant of attorney is extended till to-day.
18. The Municipal Corporation of Calcutta will forward the approval Deed of gift to Mr. Mitter's Advocate-on-Record within a week and Mr. Mitter's clients including the added petitioner will execute and register the said Deed of Gift within a week thereafter. It is also directed that the sanction of the plan will be given by the Municipal Corporation of Calcutta immediately after due execution and registration of the Deed of Gift as approved by the Municipal Corporation of Calcutta with or without alteration. The plan which is to be sanctioned is to be in conformity with the orders already made."
19. Thereafter, the appellant Writ petitioners forwarded to the respondents six sets of revised building plans for construction of two additional storeys on the existing building at 5, Pretoria Street, Calcutta, for approval and sent a cheque for Rs. 2000/- in favour of the Calcutta Municipal Corporation in terms of the said order dated September, 1, 1989 which was duly received and the said cheque was encashed by the Calcutta Municipal Corporation.
Thereafter, by the letter dated September 18, 1989 written by the said Advocate-on-Record of the appellant Writ petitioners, the Appellant Writ petitioners requested the Calcutta Municipal Corporation to return the draft Gift Deed duly approved as considerable delay had already taken place. The draft Gift Deed proposed to be executed by the appellant Writ petitioners in favour of the Calcutta Municipal Corporation was forwarded to the Calcutta Municipal Corporation by the appellant Writ petitioners under the cover of their Advocate-on-Record's letter dated August 25, 1989. It appears, thereafter that Mr. A. K. Basu, Advocate-on-Record for the Calcutta Municipal Corporation by his letter dated September 18, 1989 No. L 449 Law Department addressed to the said Advocate-on-Record of the appellant Writ petitioners stated, inter alia, as follows :-
"I am in receipt of your letter under reference No. T 14 dated 18th September, 1989. I regret the delay in sending the Deed of Gift duly approved by us as ordered by the Hon'ble Mr. Justice Baboo Lall Jain on 14.09.1989. However, I am now sending herewith the said Deed of Gift duly approved by me which may kindly be received and acknowledged."
20. The said approved draft deed send by Calcutta Municipal Corporation to the appellant Writ petitioners was blank at some places and it was wrongly stated in the approved deed of gift by the Calcutta Municipal Corporation that a single storeyed structure was occupied by the tenant. It was further alleged by the Calcutta Municipal Corporation in the said approved deed of gift that the clause 7 should be deleted on the ground that the same was contrary to the provisions of Section 126 of T.P. Act. That the said points raised by the Calcutta Municipal Corporation was immediately clarified by the appellant writ petitioners' Advocate-on-Record by his letter dated September 27, 1989. In the said letter the appellant Writ petitioner's Advocate called for comments of Calcutta Municipal Corporation on the clarification made by the appellant Writ petitioners and stated that no sooner the comments of the Calcutta Municipal Corporation are received, the appellant Writ petitioners would take necessary steps for execution of the deed of gift.
On or about October 17, 1989 the said Advocate-on-Record of the appellant Writ petitioners wrote a letter to the Calcutta Municipal Corporation stating, inter alia : -
"Please refer to our letter dated 27th September, 1989 to which we have not received your reply from your end so far. It may, however, be mentioned that a typographical mistake crept in paragraph 2 of our letter under reference. In the last line of paragraph 2 of our letter, the amount should have read as 'Rs. 1/Rs' instead of 'Rs. 1 lakhs'.
The comments and/or suggestions made by our clients are fair and reasonable and should be acceptable to your clients. Please let us have your client's immediate approval to enable us to take necessary steps for engrossing the Gift Deed for execution by the parties."
21. It is alleged that despite repeated reminders and requests made by the appellant Writ petitioners, the Calcutta Municipal Corporation failed and/or deliberately neglected to return the said draft deed of gift to the appellant with comments as called for by the appellant Writ petitioners vide its letter dated September 27, 1989, so that the appellant Writ petitioners could execute and register the same in terms of the order dated July 3, 1989 and September 1, 1989 passed by this Court.
It is alleged that since the respondents failed and/or neglected to comply with the orders dated July 3, 1989 and September 1, 1989 and to grant sanction of the building plan as submitted by the appellant Writ petitioners, the matter was mentioned before Baboo Lall Jain, J. on March 26, 1990. The learned Judge directed the Calcutta Municipal Corporation to intimate to the appellant Writ petitioners as to whether the appellant Writ petitioners have executed the Deed of Gift and the ground, if any, for non-sanction of the revised plan. Such intimation was to be sent by a letter to the Advocate-on record of the appellant Writ petitioners within a period of a fortnight from the date of service of the said order. In spite of the said order being duly communicated to the respondents, no intimation was received by the Advocate-on record of the appellant Writ petitioners as to ground, if any, for non-sanctioning of the proposed building plan.
On May 3, 1990 the appellant Writ petitioners filed another application before the learned trial Judge praying, inter alia, as follows :-
"(a) That the draft gift deed contained in Annexure 'D' hereto be treated as approved and the respondents be directed to accept the Gift Deed if executed in the said Form;
(b) The revised building plan submitted by the petitioners in September, 1989 be treated as approved and the petitioners be given liberty to make further consideration in accordance therewith immediately after execution of the said gift deed in favour of the Calcutta Municipal Corporation;
(c) Costs of and incidental to this application be paid by the respondents;
(f) Such further order and/or orders be made as to this Hon'ble Court may fit and proper."
22. By an order dated July 10, 1990, Baboo Lall Jain, J. disposed of the application filed by the appellant Writ petitioners on May 3, 1990 whereby and whereunder the learned Judge was pleased to pass no order on the said application dated May 3, 1990 on the ground that on December 18, 1989 the Calcutta Municipal Corporation (Amendment Ordinance) 1989 came into force which provided, inter alia, that any application for sanction of any plan to erect a building exceeding 13.5 meters in height submitted by any person before the coming into force of the said ordinance and lying pending for such sanction on the date of coming into force of the said Ordinance shall stand rejected forthwith and the appellant Writ petitioners had not executed the Deed of Gift for land in favour of the Calcutta Municipal Corporation terms of the order dated July 3, 1989 and the question of sanction or revised plan could only arise after the Deed of Gift was executed in favour of and delivered to the Corporation. The learned Judge held that the law to be applicable could only be the law as on the date of the sanction and not the law as on the date of the order. Being aggrieved by the order dated July 10, 1990 the instant appeal was filed by the appellant Writ petitioners.
At the material time the sanctioning of plans for construction of building were governed by the provisions of schedule XVI of the Calcutta Municipal Act, 1951, containing elaborate Building Rules as framed by the West Bengal Legislature under the said Act. Even though the said Act had been repealed by the new Act. Viz, the Calcutta Municipal Corporation Act, 1980 which came into operation on Jannuary 4, 1984, by virtue of Section 635(2) (f) of the provisions of Schedule XVI of the Calcutta Municipal Act, 1951 continued to remain in force. The relevant Building Rules which govern the making of an application for sanction and consideration thereof by the commissioner of the said Corporation are Rules 47,48,51,52,54 and 55.
On behalf of the Corporation it was contended that the revised plan had not been submitted in accordance with the Rules and therefore, there was no obligation on the part of the Corporation to consider the plan. In this connection it was stated on behalf of the Corporation that the revised plan could not be accepted by the Department due to want of submission fee of Rs. 10/- from the applicant reference was made to the provisions of the Building Rules as contained in Schedule XVI wherein it does not appear that there was any specific provision relating to payment of any submission fee of Rs. 10/-. The learned Judge in his judgment referred to Rule 48 of Schedule XVI in this connection. But rule 48 does not contemplate the payment of any submission fee of Rs. 10/- Sub-rule (1) of Rule 48 only requires that every application under Rule 47 will be written on a printed form to be supplied by the Commissioner on payment of an amount not exceeding Rs. 5/- for each form as may be determined by the corporation. There is no other Rule requiring the payment of any submission fee of Rs. 10/-. It was alleged that the submission fee of Rs. 10/- was being collected by the Corporation not on the basis of any Rule but under an administrative circular. It was alleged that said administrative circular was ultra vires and unenforceable in view of the decision in Ajoy Kumar Das v. State of West Bengal and Ors. reported in Calcutta Law Times 1993 (1) HC 411. In the said decision it was held by Susanta Chatterji J. inter alia, as follows :-
"... No circular can be issued which would be otherwise inconsistent with the rule. Even if there is any circular it amounts to an executive instruction having no statutory force. The argument that there is no scope for consideration of the plans unless there will be deposit of Rs. 10/- for scrutiny, has no merit. This aspect appears to be thoroughly misconceived as contended in the application for recalling and/or reviewing the order. If a plan has been filed and/or an application has been filed as contemplated under Rule 47 and processed under Rule 81, the same has to be considered under Rule 55". "The concept must be very clear that the application need not accompany Rs. 10/- for scrutiny charges, nor it is binding upon any applicant nor it is open to the Corporation to refuse considering the plan since Rs. 10/- was not deposited because it is neither permitted under the Act nor under the Rule and the circular in this behalf is contrary and inconsistent with the law and as such the said circular his no legal force at all."
23. Even otherwise the contention of the Corporation which found favour with the learned Judge in the trial Court that the revised plan should have been accompanied by an application in the prescribed form was not wrong as Rule 47 requires an applicant to make an application for written permission to the Commissioner.
The application is to be accompanied by the relevant plans relating to the site, the whole building, the plan in respect of each floor, elevation and sections etc. The plans are to be drawn up in accordance with Rule 48. Once an application along with necessary plans is submitted to the Corporation, the Corporation is required to deal with the said application in terms of Rule 51 of Schedule XVI of the said Act. Rule 51 require that all information and documents which may be found necessary to require and all objections which may be found necessary to make shall be respectively required and made in one requisition by the Commissioner at the earliest possible time within a period of 15 working days. Once such requisition is issued the applicant for sanction is required to comply with the same. While such compliance is required on the part of the applicant, his application as originally made in the prescribed form remains pending. It is quite possible that in a given case in view of the objections raised and/or requisition issued the applicant would be required to submit a revised plan in order to make the plan free from the said objections and/or to comply with the specific requisitions of the Corporation authorities. Such filing of a revised plan pursuant to the objection taken and/or requisition issued under Rule 51 has to be made in the pending application in connection with which the objection has been raised and/or requisition has been issued. Necessarily, there is no question of filing a fresh application along with the revised plan as the original application is already there and remains pending as the same not yet been disposed of.
24. Rules 47,51,52,54 and 55 of Schedule XVI make it clear that once an application is filed, two courses of action are open to the Corporation, one is to refuse application under Rule 51(4) of Schedule XVI and the other to keep the pending application for being considered on merits and thereupon to consider the same on merits and either to grant permission or to refuse permission. So long as the application is not refused under Rule 51(4) the application remains pending with the Corporation and all subsequent action taken thereon either by the applicant or by the Corporation must necessarily be in connection with the said pending application.
25. Rule 54 provides for the making of a fresh application under Rule 47 when the permission to erect a new building has been refused. Obviously, such refusal can be made under Rule 51(4). It is alleged that until such refusal of the original application is made by the Commissioner, the applicant is not required to file a fresh application. In the instant case no such order of refusal had been made by the Commissioner.
It was further alleged that when the revised plan was filed pursuant to the order of this Hon'ble Court it was in continuation of the application which was then pending before the Corporation and which had not yet been disposed of. Therefore, there was no question of filing of a fresh application in the prescribed form after obtaining the printed form for that purpose. This is also clear from the order of the learned .trial Judge earlier dated July 3, 1989.
26. In the order dated July 3, 1989, the learned Judge directed the corporation to sanction the existing plan excepting in respect of the existing constructions on the strip of land which was to be gifted to the Corporation. The learned Judge also directed the appellant Writ petitioners to submit a revised plan along with requisite number of copies to the Corporation within 7 days (a) incorporating II corrections as required by the Corporation, (b) showing therein the strip of land to be gifted. The learned Judge further allowed the appellant Writ petitioners to file a copy of such revised plan in Court with at least 48 hours' notice to the Advicate-on-record of the Corporation and also permitted the appellant Writ petitioners to use a certificate from Messrs. Talbot & Co. as to the correctness of the said revised plan. In the said order the Corporation was given the liberty to apply if there was any dispute with regard to the said revised plan. It is significant that nowhere within the four corners of the said elaborate order was any requirement of filing a fresh application in the prescribed form, nor did the Corporation apply in terms of paragrah 17 of the said order to point out any defect or deficiency as to the said revised plan or as to the absence of a fresh application or as to non-payment of any submission fee.
27. Apart from the failure of the Corporation to apply to this Hon'ble Court in terms of the liberty granted in paragraph 17 of the said order, the Corporation also failed to comply with the statutory requirements as per Rule 51 of Schedule XVI of the said act.
Assuming though not admitting that there was any defect in the revised plan filed by the applicant pursuant to the order of this Court, whatever the defect might be, it was clearly incumbent on the Corporation authorities in terms of Rule 51 of Schedule XVI of the said Act to inform, the applicant within 15 working days as to the defect and/or deficiency. As the Corporation failed to communicate the said defect in terms of Rule 51 of Schedule XVI of the said Act, it would no longer be open to the Corporation to refuse to deal with the application on the ground of such defect. This shows that the objection taken by the Corporation was not a bona fide objection but the product of an afterthought and such objection was only a ploy to justify its own inaction.
28. The next contention of the Corporation was with regard to the non-execution of the Deed of Gift. The factual position in this regard is that on September 1, 1989 it was recorded by the learned Judge by his order that the Draft Deed of Gift had already been forwarded to the Corporation and the same was to be approved by the Corporation as early as possible subject to any reasonable alternation, if any. The learned Judge also directed that the approval be given within a week and the Deed of gift be executed within a week thereafter. If appears that in spite of several reminders the Advocate-in-record of the Corporation did not return the approved draft till September 18, 1989. When the Deed of Gift was returned it was found that certain unwarranted objections had been taken to some of the provisions of the said Draft Deed of Gift by the Advocate-on-record of the Corporation. The Advocate-on-record of the appellant Writ petitioners clarified the matter by writing letters to the Advocate-on-record of the Corporation and requested for an early action so that the Deed of Gift could be executed as early as possible, but the Corporation did not take any action thereon. The appellants Writ petitioners were ready and willing to execute the Deed of Gift in terms of the order of the trial Court and provided the Draft Deed of Gift was duly approved by the Corporation. This, however, should not stand in the way of sanctioning the plan as it is really a matter of sorting out certain clauses in the proposed Deed of Gift.
The main objection of the Corporation seems to be that on December 18, 1989 the Calcutta Municipal (Amendment) Ordinance, 1989 was promulgated whereby Section 398A was added to the principal Act according to which no sanction could be accorded to a proposal for construction exceed the height of 13.5 meters and all pending applications relating to plan for construction exceeding the height of 13.5 meters shall stand rejected. It is stated in paragraph 32 of the affidavit-in-opposition that the Chief Municipal Law Officer gave his opinion that the plan in the instant case was hit by the said Ordinance.
The Effect of the said Section 398A was considered by a Division Bench of this Court in (Atmaram Kanoria and Ors. v. L.R.K. Prasad and Ors.) reported in 1990(1) CAL LT (HC) 102 it was held, inter alia, as follows :
"(a) Section 398A of the Calcutta Municipal Corporation Act 1980 which was inserged by the said Ordinance is not retrospective in operation. It is prospective.
(b) As there is no non-obstantee clause in Section 393A referring to any judgment, order or decree of a Court there is nothing in the provision which may be seen as setting at naught even otherwise the effect of any judgment rendered by a Court and the binding character of the direction therein issued. The individual rights which have crystallized and obligations which have incurred as a result of the binding character of a judicial decision cannot, therefore, be taken away in an indirect fashion by enacting a provision like Sub-section (2) of the said Act.
(c) Any order or writ or direction issued by a competent Court of law or any judgment, rendered prior to the promulgation of the said Ordinance cannot be affected in any way by virtue of the said Ordinance and the said judgment or order would be binding between the parties."
29. The said decision of the Division Bench of this Court was challenged by the Corporation by way of a Special Leave petition in the Supreme Court. After a contested hearing the said challenge failed as the special Leave petition was dismissed.
It is alleged that the learned Judge in the instant case clearly erred in holding that the decision of the Division Bench in (Atmaram Kanoria and Ors. v. State of West Bengal and Ors.) is distinguishable of facts, thereby the learned Judge failed to appreciate the true ratio of the said decision.
"By virtue of the order dated July 3, 1989 the learned Judge in paragraph 13 of the said order directed the Corporation to sanction the plan in the following terms :
"After all the formalities which are to be complied with in terms of the above order, are carried out, the Municipal Corporation will within a fortnight from the receipt of intimation as aforesaid sanction the existing plan excepting in respect of the existing construction on the strip of land which is to be gifted to the corporation of Calcutta."
The learned Judge further directed in paragraph 14 that the appellants would submit a revised plan within 7 days from the date incorporating all the corrections and showing the strip of land intended to be gifted to the Corporation separately. The Corporation was given liberty to apply if there was any dispute with regard to the revised plan. In paragraph 22 a time bound programme was fixed by the learned Judge as under :
"The sanction is to be granted by the Municipal Corporation of Calcutta within a fortnight from the date when all the formalities as required by the writ petitioners under this order are completed and intimation thereof is given to the Corporation. However this is subject to the condition that the writ petitioners, will submit the revised plan within one week from to-day as required by this order."
The effect of the aforesaid order was to clearly declare the right of the appellant writ petitioners to get the revised plan sanctioned by the Corporation subject to their compliance of the following conditions :
(a) the submission of a revised plan.
(b) the execution of the Deed of Gift.
by a further order dated September 1, 1989 the learned Judge recorded the fact of sending of the draft Deed of Gift by the appellant writ petitioners and also directed the appellant writ petitioner to forward a cheque for Rs. 2000/-to the Municipal Corporation as security for demolition charges. The learned Judge further directed the Municipal Corporation of Calcutta to forward the approval to the Deed of Gift to the Advocate-on-Record for the appellant writ petitioners within a week and directed the appellant writ petitioners to execute and register the Deed of Gift with a week, thereafter. The Corporation was also directed to accord sanction to the plan immediately after due execution of the registration of the Deed of Gift as approved by the Municipal Corporation. The aforesaid two orders clearly amounted to a declaration of the right of the appellant writ petitioners to get the plan sanctioned in terms of the said order to the Court subject to the compliance of the conditions as stipulated therein.
30. It is alleged that on the basis of the said order a valuable right accured in favour of the appellant Writ petitioners to get the sanction on the compliance of the conditions as mentioned in the said order. When there was no laches and/or failure on the part of the appellant writ petitioners in the matter of compliance of the said conditions the said right cannot be taken away by the provisions of Section 393A of the said Act as added to the principal Act by virtue of the said Ordinnce. The said right of the appellant writ petitioners to have the plan sanctioned and the obligation of the Calcutta Municipal Corporation to accord sanction to the said plan had already become crystallized and acquired a legally binding character and are enforceable under the law. The appellant writ petitioners' right to obtain sanction was recogniesd by the said judgment and order of the learned Judge and the obligation to grant such sanction was incurred by the Corporation by virtue of the said judgment and order. It is alleged that the said right as well as the corresponding obligation accordingly cannot be interferred with or set at naught or defeated by Section 393A(2) and the said provision is inapplicable in this case. Such right and/or obligation cannot and is not intended to be taken away by Sub-section(2) of Section 393A as held in (Atmaram Kanoria v. L.R.K. Prasad) 1990(1) CLJ 169.
It was also alleged that when the court directs the Corporation to sanction the plan subject to the compliance of certain conditions as laid down in the said order, the order is no less final and binding on the party than an order whereby the Court directs the Corporation to sanction the plan without imposing any conditions. The only difference is that when the Court imposes conditions to be complied with by the appellant Writ petitioners, unless the conditions are fulfilled the appellant writ petitioners cannot insist on the grant of sanction whereas in the absence of such conditions the appellant writ petitioners are immediately entitled to a sanction without anything more. It is true that when the Court declare the rights and obligations of the parties, the mutual rights and obligations to be performed by the parties and the binding nature of the declaration made by the Court is neither lost nor diminished in any way because of the mutually of the obligations. If one party fails to fulfil its obligations the other may not be called upon to fulfil its corresponding obligation on the basis of the judgment of the Court. It is also alleged that even if the conditions are not fulfilled the judgment and order of the Court retains their finality and binding character as between the parties, even though a party who is guilty of fulfilment of its obligation may not be able to insist on the enforcement of its rights on the basis of the judgment and order.
31. In the instant case in view of the conditions imposed upon the appellant writ petitioners the appellant writ petitioners were entitled to get the sanction upon their fulfilment of the conditions imposed by the Court and once such conditions are fulfilled, the obligation of the Corporation to accord sanction is, thus, directly from the order of the Court and not any provisions of the statue.
32. The learned Judge it is alleged that erred in appreciating that the obligation of the Corporation to accord sanction in the instant case was based on the judgment and order of the Court and the said obligation is no longer rested simply on the statutory provisions. Had it rested simply on the statutory provisions, as it would have, in the absence of a prior Court! proceeding, resulting in the final order of the Court, in that event a subsequent change of the law as introduced by the said Ordinance could have led to an extinguishment of the said right of the appellant writ petitioners and consequent extinguishment of the obligation of the Corporation. But because of the existence of a prior binding Judgment and order of a Court of competent jurisdiction declaring the rights and obligations of the parties, a subsequent change of the law could have no effect on the rights and obligations of the parties unless the change in the law was made restrospective effect taking the basis of the judgment. This is the true ratio of Atmaram Kanoria's case based on the decision of the Apex Court in (Madan Mohan Pathak v. Union of India) .
It was also alleged that the learned Judge in our view was wrong in holding that the right to obtain the sanction of the plan could not be said to have accrued in favour of the appellant Writ petitioners at any time even until now. To say so is to render nugatory the entire effect of the judgment and order dated July 3, 1989 and September 1, 1989 made by the learned Judge himself. It would render the said two judgments and orders wholly futile, if it is held that no rights and obligations were created by the said two judgments and orders.
33. The power must be exercised bona fide and without negligence. The statutory corporation can in law do only those things, they are permitted by the statute to do. Anything else done, beyond their powers in ultra vires. They have no general power to Act. They must be able to point specific statutory authority for everything they do. This is established by the House of Lords in Hazell v. Hammersmith and Fulham, London Borough Council, (1991)2 All. E.R. 545. It was also held in this case that the object of the doctrine of ultra vires is the protection of the public and ultra vires act could not be remedied. Ultra vires is public law whereas contract is under private law. In the instant case by memo dt. 23rd September, 1989 the municipal authority communicated the writ petitioners about the decision that was taken by the municipal authority in respect of the said plan. It was stated that the said plan was placed before the Municipal Building Committee for consideration and on 2nd September, 1987 the said committee took the following resolution :
"This is a proposal for addition of 5th & 6th, storey over the four-storyed existing Building. The site abuts on Pretoria Street which is a very narrow. Due to the proposal, extra traffic flow will be generated. Pretoria Street is already over loaded from traffic point of view. It is therefore, recommended that the party be asked to leave so much of land to make Pretoria Street 13 Mts. and that strip of land should be free gifted to the Calcutta Municipal Corporation. If the party agrees to comply with above and all other departmental requisitions, the case may be recommended for sanction."
Under the Calcutta Municipal Corporation Act and Rules and Regulations framed thereunder, there is no provision for insisting upon making of a free gift of land to the municipality as a condition precedent for sanctioning of any plan. The plan is 'for the site in question and that the question is whether taking into consideration of the size and situation of the land, the plan could be sanctioned or not under the law. The object of the building regulation is for making construction in the manner which is designed to have a planned city strictly in accordance with such rules. In the instant case, the land, could be acquired for the purpose of widening of the road or the street in question and that possibly the persons concerned whose land is would be acquisitioned cannot have any defence. But in the instant case, it was clearly evident that the putting of a condition for making free gift of land was an Act which, in fact, under the law the municipality authority had not been vested with such power. The Municipal Corporation could not point out any specific statutory author for making such a decision that unless the free gift of a strip of land was made, the plan could not be sanctioned. In Hall & Co. Ltd v. Shoreham-By-Sea ULC. reported in (1964) 1 All E.R. 1, it was held that while considering the power of local authority in granting planning permission to impose 'such conditions as id thinks fit'. It was also held that on the basis of the power the right to prop of any applicant could not be taken away by planning authorities, that case the defendant granted the plaintiff planning permission subject to conditions which required them to construct a road on their land and decided it use to the public. No compensation was payable to them for the loss of the land to be used for the road. The court could not find 'clear and unambiguous words in the Town and Country planning Act authorising the defendant's in effect to take away the plaintiffs' right of property without compensation by the imposition of conditions such as those sought to be imposed'. The conditions were therefore ultra vires in pursuance of the principle that a statute is not to be construed as taking away rights of property without compensation unless the intent to do so is clearly expressed. They were also held to be unreasonable and unnecessary. When an application for sanction of a plan is made, the municipality has the power to sanction the same if it is found that the plan conforms with the conditions and restriction imposed under the Building Regulations and if it is found that it does not conform or violate any of the rules and regulations, the municipality as a matter of course, can reject the application and may ask the party concerned to submit a fresh plan making it consistent with the statutory provision and conforming with the Building Rules. But in the instant case even though the municipal authority acted beyond the scope and ambit of the law in asking for making free gift of a strip of land for the purpose of widening of the road when there was no plan for widening of the said road and that there is nexus between the sanction of the plan and the gift of the land. The applicant initially raised objection but subsequently, agreed to comply with the same for the purpose of getting the plan sanctioned and ultimately, pursuant to the order of the Id. trial Judge submitted the deed of gift for approval by municipal authority and that the municipal authority by memo dt. 18th September, 1989 returned the draft deed of gift duly approved by them stating, inter alia, that I regret the delay in sending the deed of gift approved by us as ordered by the Hon'ble Mr. Justice Baboo Lall Jain on 14.9.89." From the xerox copy of the draft deed of gift as approved it appears that the municipal Authority had approved after making some hand correction. Thereafter, certain clarification was sought for regarding those hand corections but the Municipal Corporation kept significantly silent. Now, the question, is whether by the operation of the said ordinance the decision already taken by the municipal authority sanctioning the plan on the condition which was fulfilled by the party has been made invalid or inoperating. We have to decide whether in the context of the resolution and/or decision of the municipality to sanction the plan subject to the condition of making a free gift of a strip of land, which was ultimately made, eves though such a condition is illegal and void, the Calcutta Municipal Corporation (Amendment, Ordinance 1980, the said resolution stands nullfied or have been rendered inoperative. The said ordinance introduced Section 393A in the Act which provides that no person shall apply for sanction of any plan to erect a building exceeding 13.5 meters in height. The application for sanction of any plan to erect building exceeding that height, submitted before corning into force of the Ordinance shall stand rejected. What the said Ordinance provided in clear words is that application for sanction of a plan exceeding that height shall stand rejected and the said applicant has to file an application for sanction of the plan to erect building exceeding thirteen and a half meter in height afresh. The said Ordinance did not affect the decision or resolution already taken for sanctioning a plan long before the date of coming into force of the said ordinance. The said Ordinnce had not been given any retrospective effect so as to nulify the decision already taken for sanctioning a plan but not formally handed over to the party. If the words of the said Ordinance are clear, the Court must follow them. In R.V. City of London Court Judge, reported in (1892)1 Q.B. at p. 290 Lord Esher MR said that "If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court had nothing to do with the question whether the legislative has committed an absurdity." The provision of the said Ordinance did not affect the steps or decision already taken pursuant to the order of the learned trial Judge dated 3rd July 1989 in Atmaram Kanoria and Ors. v. L.K.E. Prosad and Ors. the Division Bench of this Court held that "upon a true construction of Section 298 and more particularly, Sub-section (2) thereof, in a proper perspective, there is no manner of doubt, therefore, that it is not attracted on facts and in the circumstances of the present case. The application for sanction of the Building plans was made long before the said section was enacted and came into force. The protracted proceeding of such application without any effective outcome gave rise to a writ petition instituted in this Court in which a direction was issued by the trial Court to the Corporation Authorities to sanction the Building plans submitted by the petitioners. An appeal carried by the Corporation Authorities against the said judgment failed and the Appeal Bench of this Court also issued a direction to accord sanction to the revised Building plans submitted by the petitioners. The said judgment has become final and binding on the parties since the remedy by way of an appeal or review has not been availed of. The right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Appeal Bench which still stands. The said right as well as the corresponding obligation required and incurred accordingly cannot be disregarded or ignored by invoking the aid of Sub-section (2) of Section 393A which is inapplicable in such cases. Such right and/or obligation cannot and is not intended to be taken away by subsection (2) of Section 393A". It was further held in that case that "The individual rights which have crystalised and the obligations which have been incurred as a result of the binding character of a judicial decision cannot, therefore, be taken away in an indirect fashion by enacting a provision like sub-section as interpreted by the Corporation Authorities". In that case an order was made on May 18, 1989 directing the Municipal Corpn. to accord sanction to the plan already submitted, as expeditiously as possible preferably within a period of two weeks from May 18, 1989 subject to payment of necessary dues and that ultimately, the Corporation failed to comply with the order within time as directed. An application for contempt was also filed. Applying the principles laid down in Atmaram's case it must be held that in the instant case in view of the express order of the learned trial Judge dated 3rd July 1989 and in view of the fact that the appellant petitioner performed all the duties and obligations under the said order and even though the municipal authorities have approved the draft deed of gift and in view of the adoption of resolution already passed for sanctioning of plan on condition of gift of plan, the individual rights have been crystailsed which was not intended to be interfered with nor which could be interfered with by Ordinance. The principles laid down in. Atmaram's case are fully applicable to the facts and circumstances of the present case and that the said Ordinance subsequently passed could not take away the rights and obligation of the parties created by the order dated 3rd July 1989 and the action already taken by the parties in terms of the said order. Admittedly, it cannot be said that at the date of the commencement of the said Ordinance no application for sanction of the plan was pending. Under the Ordinance all pending application for sanction of a plan for construction of a building beyond that highest shall stand rejected. In the instant case application for sanction as duty considered by the municipal authority and who had already decided to sanction the plan submitted which was found to be strictly in accordance with the provision of building rules at the time when the plan was considered for sanction but it had only imposed condition that the appellant should make a free gift of certain land. Under such circumstances it was a case where decision was already taken for sanctioning of plan and the formal sanction was awaiting only for the purpose of executing a deed of gift of a strip of land. The plan could have been formally sanctioned and banded over to the appellant before the Ordinance had come into force but the same could not be done because of the delay and laches of the municipal authority. The delay that was done was for not having accorded the plan to the draft deed of gift in time in terms of the order passed by the learned trial Judge. It is well settled principle that a party can never taken an advantage of his own wrong putting into difficulty to other who was not at fault and who had complied with all the duties and obligations on his part according to the order passed by the ld. trial Judge. It is a case where the respondent municipal authority had caused some delay in approving the draft deed of gift in contravention of the order of the ld. trial Judge. In our opinion, the resolution of the Municipal authority dated 2nd September, 1989 clearly established a case of deemed sanction of the plan and that formal sanction of the plan could not be handed over because the municipal authority imposed a condition travelling beyond the provision of the law for the purpose of making a free gift of a strip of land. But after the appellant had already filed a deed undertaking to execute the necessary deed of gift and sanding the draft deed of gift which was not finalised and completed due to the default of the Corporation and due to the laches on the part of the appellant. On the basis of the decision already taken the appellant is entitled to have the plan which was deemed to have been sanctioned long before the Ordinance had come into force. We are unable to hold in the circumstances that the application for sanctioning of a plan was pending at the date when the ordinance had come into force.
34. We are also of the view that the ld. trial Judge has failed to appreciate that there was no laches and negligence on the part of the appellant/ petitioner in complying with the conditions as laid down by the learned trial Judge and that it was the municipal corporation who was guilty of laches and negligence as it appears from the facts and circumstances of the case from which it is evident that the delay might have been made with the intention of crossing the crucial date of promulgation of the said Ordinance and to withhold the formal sanction of the plan which is not permissible but that course of action is not available in the facts and circumstances of the case. The appellant could not be penalised for the default of the Municipal Corporation. A party could not be made to suffer the deliberate fault or mistake committed by the other party and a valuable right accrued under order of the court could not be allowed to be taken away. That the said ordinance did not and should not affect the right of the appellant to get the formal sanction of the plan was in view of the fact that the decision was taken long before the Ordinance had come into force. The respondent-municipal authorities are public authorities and as public authorities they are required to act fairly and reasonably. Reasonableness and fairness implies the application of the principles of equity. Writ court is a court of equity. The principles of equity is that equity looks on that as done which ought to be done.
35. In Snell's Equity at paragraph 10 the doctrine has been explained as follows:
"Equity looks on that as done which ought to be done. This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing was already one, though only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers. Agreements for value thus often treated as if they had been performed at the time when they ought to have been performed, with the same consequences as if they had 'then been completely performed. For example, a person who enters into possession of land under a specifically enforceable agreement or a lease is regarded in any Court which has jurisdiction to enforce the agreement as being in the same position as between himself and the other party to the agreement as if the lease had actually been granted to him.
Other examples of the maximum will be found in the enforcement of an imperfect trust made for value, the qualified trust for value, the qualified trust for a purchaser imposed by equity upon the Vendor, the rule in Howe V. Eral of Dartmouth and the Doctrine of Conversion."
36. Applying the above principles to the facts and circumstances of the case, if must be held that it will be inequitable and unjust to hold that the appellant was not entitled to have the plan sanctioned on the basis of the order dated 31st July 1989 read with the order dated the September, 1989.
Accordingly, we are of the view that when the appellant had in compliance with the order passed by the learned trial Judge send the draft deed of gift for approval but because of not taking an action by the municipal authority within the time given in this behalf and the draft deed was sent back with some hand-correction some portion of which is illegible, the appellant could not formally execute the deed in question. We direct the appellant to execute the same as it is and that because of the delay on the part of the municipal authority in the peculiar fact of this case the time to execute the same is extended to ten weeks from today and file necessary receipt from the Registrar of assurances before the municipal authority and the municipal authority shall accord the formal sanction of the plan in respect of which the decision has already been taken within two months from the date of the receipt of showing the execution and registration of the deed of gift. The order of the learned trial Judge dated 10th July 1990, is set aside and the appeal is allowed to the extend indicated above. There will be no order as to costs.
All parties to act on a signed xerox copy of this judgment on usual undertaking.
A.K. Chakravarty, J.
37. I agree.