Calcutta High Court
Ajoy Kumar Das vs State Of West Bengal And Ors. on 15 February, 1993
Equivalent citations: (1993)1CALLT411(HC), 97CWN766
ORDER Susanta Chatterji, J.
1. By order dated 17.8.1992 this Court disposed of a writ application after considering the submissions made on behalf of the writ petitioner and the Calcutta Municipal Corporation authorities. It appears from the said order that Mr. Bikash Ranjan Bhattacharjee, the learned counsel appearing for CMC authorities, has brought it to the notice of this Court that the writ petitioner had made a representation for withdrawal of the earlier application. If the said representation is not pressed then the earlier 'Building Plan' cannot be considered. It was fairly submitted by the learned counsel appearing for the respective parties that this Court may grant liberty to the petitioner regarding withdrawal of such representation. Recording said submission, this Court granted liberty to the petitioner for not pressing the representation for withdrawal. This Court further made it clear that the pending application for grant of sanction of the Building plan be considered by the respondent Calcutta Municipal Corporation authorities within a period of three months from the date hereof in accordance with the prevailing law.
2. An application for recalling and/or reviewing of the order has been made. Mr. Aloke Kumar Ghose and Mr. Satyabrata Majumdar, appearing for the CMC authorities, have argued, inter alia, that there is difficulty in considering the earlier application for sanctioning the plan in accordance with the rules. It is contended that the earlier application since filed by the petitioner was not accepted by the CMC authorities. A fine distinction is sought to be made for difference between filing of the application and accepting the same. It is contended further that "tender" cannot be equayed with the "acceptance".
3. Attention of this Court has been drawn to Rule 55 under Schedule XVI of the Calcutta Municipal Corporation Act, 1980 that within two months after the receipt of any application made under Rule 47 for permission to execute any work or for any information or document of further information or document required under this Schedule, the Commissioner by a written order either, "(a) grant permission conditionally or unconditionally to execute work, or
(b) refuse, on one or more of the grounds mentioned in Rule 52y to grant such permission;
(2) When the Commissioner grants permission conditionally under cl. (a) of sub-rule (ii) be made, on regard thereto to impose such condition, consistently within the Act, as he may think fit......".
4. According to Mr. Ghose Rule 55 is very much expressive as the word "receipt", does not mean to tender. The word, "receipt" denotes something more than tender and according to him it must be acceptance on scrutiny. In this regard attention of this Court has been drawn to a Circular dated 18.1.1982 being Circular No. 30 of 1981-82 issued by the City Architect's Department Corporation of Calcutta (copy of which is Annexure 'B' to the application for recalling order).
5. It is provided thereto that Plans will be received for table scrutiny by special cell between 11 A.M. and 2 P.M. on the working days.
6. "Stamp token for the plans received for tabble scrutiny will be issued by the Clerk-in-charge of the Spl. Cell. The Clerk will make necessary entries in the register and submit the same to the concerning D.B.S. for scrutiny and observation. The concerning D.B.S. of the cell with the endorsement of Dy. C.A. of the respective area should intimate the applicant as far as practicable within the same day the departmental observation regarding acceptance or non-acceptance on the basis of the information furnished by the applicant in.the application form".
7. It is further provided that in case "the plans are found acceptable this should be placed before the concerning Dy. C.A. and on his endorsement, the observation D.B.S. Cell, plans and application will be received by the Receiving Clerk on payment of usual charges i.e. Rs. 10/- for submission. Receiving Section and Cash Section will forward to concerning department to take step for sanction".
8. Mr. Ghose further submitted that Rule 55 read with the Circular dated 18.1.1982 will indicate, inter alia, that the petitioner has to do something more than what has been done on filing the present form and several items in the form have not been filled up. In fact, said plan was tendered but not received and the question of acceptance of the same and/or consideration of the same according to the previous law does not arise. Since these facts were not brought to the notice of this Court at the time of disposal of the writ petition on 17th August, 1992, there are certain erros apparent on the face of the record and the case should be reviewed and it may be heard again on merits.
9. Mr. Majumdar appearing for the writ petitioner has tried to draw attention to the provisions of Rule 58 along with Rule 47 and Rule 51. He has opposed the prayer for recalling and/or- review of the order dated 17.8.92. Upon perusal of the materials on record and considering the submission of Mr. Ghosh for the CMC authorities and Mr. Majumdar for the writ petitioner, this Court is of the. view that, under Rule 47 there is scope for application for permission to erect new buildings. It is indicated that no person shall erect a new building or re-erect or make and additions and/or alterations to any building or cause the same to be done without first obtaining the written permission from the Commissioner under Rule 55. Rule 47(2) provides that every person intending to erect a new building or re-erect or make addition and/or alteration to any building shall send to the Commissioner an application for permission to execute the work together with the site plan of the whole building, separate plan for each floor of the building, complete elevations and sections of the work, service plans, a specification of the work and such other particulars as may be prescribed by the Corporation in this behalf from time to time. Rule 48 envisages particulars to be furnished with such an application. It is provided that every application made under Rule 47 shall 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 and shall state the position of the site, the number assigned to it in the assessment book and its dimensions and such other particulars as may be prescribed by the Corporation. All building plans, site plans, elevations sections etc. shall be made out on drawing sheets which shall be in any of the sizes specified in the table. Rule 51 thereafter provides for all information and documents which it may be found necessary to require and all objections which it may be found necessary to make before deciding whether permission to erect a building 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. Rule 51(2) provides that within fifteen working day after the receipt of any application under Rule 47 for permission to execute a new 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 that documents received thereunder or with any document pres cribed by that 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. Rule 51(3) provides that if any information and/or document furnished under sub-rule (2) are in the opinion of the Commissioner incomplete or defective, he may, within 15 working days after the receipt of the same require further information or documents to be furnished. 51(4) provides that if any requisition made under sub-rule (2) or sub-rule (3) is not complied with within 3 months, the application received under Rule 47 of the Schedule shall be refused. These are the clear provisions for filing an application for grant of the sanction under Rule 47 and the consideration to be made under Rule 55. There cannot by any water-tight compartment for tendering the document and/or consideration of the said document after receiving in view of the circular dated 18th January, 1982. 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 51, the same has to be considered under Rule 55. In the instant case this court has only disposed of the petition that the earlier plan filed, should be considered in accordance with law prevailing at the time of filing of the plan. If upon consideration according to the previous and prevailing law, a plan was defective and the application was misconceived, it was open to the Corporation Authorities reject the same strictly complying with the order of this Court made on 17th August, 1992. It was no longer upon to CMC Authorities to come to recall the order as there is no error apparent on the fact of the record nor there is any discovery of new material nor there is any sufficient reason to review and/or recall the order. The concept must be very clear that the application need not accompany Rs. 10/- for scrutiny charge 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 to and inconsistent with the law and as such the said circular has no legal force at all.
For the aforesaid reasons, the application for recalling and/or reviewing is rejected. No order as to costs.
All parties to act on a signed copy of this dictated order on usual undertaking.