Calcutta High Court (Appellete Side)
WP/10282W/2012 on 18 January, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Protik Prakash Banerjee
W.P. No. 10282 (W) of 2012
Gora Dewan
--v--
State of West Bengal & Others
For the petitioner : Mr. Sankar Prasad Dalapati, Adv.
Mr. Satyajit Mahata, Adv.
For the Municipality : Mr. Mir Anuruzzaman, Adv.
Ms. Dipanwita Banerjee, Adv.
For the State : Ms. Sanghamitra Nandy, Adv.
Heard on : January 14, 2019
Judgment on : January 18, 2019
PROTIK PRAKASH BANERJEE, J.:
1. It's a pity if a statutory authority who has 60 days to take a certain step, allows that time to elapse, becomes functus officio, and then, when the consequence has already ensued, attempt to take that step. In 2 ordinary life, we say he is trying to shut the stable after the horse has bolted. If the writ petitioner had made out this short case - which is apparent from the face of the records - then this writ petition would not have haunted the cause list for the last 7 years.
2. Admittedly the writ petitioner owns land within the Rajpur- Sonarpur Municipality. He wanted to erect a building on such land. For this he applied for sanction of a building plan to the Board of Councilors of the Rajpur-Sonarpur Municipality. The application was made on December 12, 2011 and was received by the Board of Councillors, admittedly on December 13, 2011. The duty of the Board of Councilors in such a case is provided for under Section 207 of the West Bengal Municipal Act, 1993. Such provision is set out hereinbelow: -
Section 207: Sanction of building plan and permission to execute work: - Within sixty days after the receipt of any application with building plan or of any information or document which the Board of Councillors may reasonably require the applicant to furnish before deciding whether sanction shall be accorded in this regard, the1[Board of Councillors] shall, by written order,--
(a) either accord sanction to the building plan conditionally or unconditionally and give permission to execute the work, or
(b) refuse, on one or more of the grounds mentioned in section 210, to accord such sanction, or
(c) accord sanction but impose conditions for compliance before permission to execute the work.
(2) A building plan sanctioned under this section shall remain valid for three years from the date of such sanction, and may be renewed for such period, and on payment of such fee, as may be prescribed.] 3
3. The Board of Councillors allegedly did not respond nor ask for any clarification or information from the petitioner even though more 60 days expired. Since the said period of sixty days expired the Board of Councillors or anyone purporting to represent it, naturally became functus officio in terms of the above provision of Section 207 and lose any jurisdiction to do anything about it. This becomes clearer when one considers the scheme of the statute particularly Section 208 thereof. Section 207 provides as follows: -
"Section 208 - Sanction to be deemed to have been granted if the Board of Councillors defaults in according sanction: If, within the period referred to in section 207, the Board of Councillors has neither accorded nor refused to accord sanction to a building plan, nor granted permission to execute a work,1[the applicant may appeal to the Municipality, in writing, in this regard, and if the appeal as aforesaid is not disposed of within 30 days from the date of the appeal, such sanction or permission shall be deemed to have been granted; and the applicant may proceed to execute the work; so, however, that nothing in this section shall be deemed to have permitted the applicant to contravene any of the provisions of this Act or of the rules made under section 198 or of any rules or regulations applying to such work".
4. After seventy-seven days expired from the filing of the application on December 12, 2011 (received by the Board of Councillors on December 13, 2011) and since the Board of Councillors did nothing the petitioner filed an appeal in terms of Section 208 of the said Act of 1993 to the Municipality which was dated February 29, 2012 though received by the Municipality on March 4, 2012, as endorsed in Bengali. This is admitted by the respondents No. 2, 3 and 4 themselves at page 12 of their Affidavit-in-Opposition which is Annexure "A" thereto.
5. Immediately after such appeal was preferred, the petitioner has disclosed in the receipted copy an endorsement that a reply was required 4 to be made by the respondents. The municipality did not, however, consider and dispose of the statutory appeal. By the impugned order dated April 5, 2012 which is Annexure P/6 to the writ petition, the Chairman of the said Rajpur-Sonarpur Municipality "on behalf of the Board of Councillors" purported to direct, long after the expiry of the period of 60 days the things/requisites that the writ petitioner had to comply with for further process of the application for sanction of the proposed two storied building plan.
6. The period of sixty days in Section 207 within which the Board of Councillors has to act in any of the manners specified in it or the further period of thirty days in from the date of the appeal in which the Municipality is to dispose of the appeal under Section 208, does not appear to me to be directory. This is because a result has been provided as a mandatory consequence for default in taking specified steps within a certain time by each authority under statute.
7. That the reference to the Board of Councillors and the Municipality in Sections 207 and 208 respectively of the Act of 1993 are deliberate and conscious and are not to be read interchangeably, can be understood from two things. First, the specific provisions as to who are the authorities under the Act of 1993 and second the specific enumeration of both authorities, separately in Section 208. Section 12 of the said Act of 1993 provides as follows: -
"Section 12 - Municipal authorities: The municipal authorities charged with the responsibility of carrying out the provisions of this Act shall, for each municipal area, be as follows:
(a) the Municipality, 5
(b) the Chairman-in-Council, and
(c) the Chairman.
Again Section 13 of the said Act provides as follows: -
Section 13 - The municipality (1) The Municipality established for a town shall mean the Board of Councilors charged with the authority of municipal government of the town, and shall consist of--
(a) such number of elected members as there are wards within the municipal area, and
(b) persons having special knowledge or experience in municipal administration as may be nominated by the State Government from time to time, provided that such persons shall not have the right to vote in the meetings of the Municipality.] (2) The Municipality shall be a body corporate with perpetual succession and a common seal, and may, by the name of the Municipality of the town by reference to which the Municipality is known, sue and be sued.
(3) All executive actions of the Chairman-in-Council shall be expressed to be taken in the name of the Municipality.
(4) Subject to the provisions of this Act, the Municipality shall be entitled to acquire, hold and dispose of properties.
8. It is true that the "municipality" means the "Board of Councillors"
under Section 13, but if the statute meant that an appeal from the Board of Councillors (meaning the municipality) would travel to the Municipality itself, then it would mean a decision by the municipality would be appealed to the municipality and then it would be nugatory and in violation of the basic principles of natural justice. Therefore, the only 6 reasonable interpretation saving the provision from being contrary to the basic principles of natural justice and thus Article 14 of the Constitution of India, would be that the power under Section 207 was to be exercised by the Board of Councillors through the Chairman, while the power under Section 208 was to be exercised by the Chairman-in-Council expressed to be that of the Municipality under Section 13(3) of the Act of 1993 read with Section 12.
9. If these two principles as in paragraph 6 of the judgment and paragraph 8 of the judgment are considered, it would appear that the impugned Annexure P/6 is clearly without jurisdiction by an authority which became functus officio - first because it was issued beyond 60 days for complying with certain requisites for processing of sanction of the building plan by the Board of Councillors and second because it was issued by an authority which was not the appellate authority and the appeal itself was not disposed of by the appellate authority. The Chairman on behalf of the Board of Councillors is not the "municipality" in terms of Section 208 of the Act of 1993 and the Board of Councillors had lost its jurisdiction over the matter once 60 days had expired from December 13, 2011 and particularly when the appeal had been preferred in March 4, 2012. At paragraph 12 of the Affidavit-in-Opposition the respondents no. 2, 3 and 4 have admitted that the appeal of the writ petitioner was to be disposed of within 5th April, 2012 though in fact, it was not so disposed - the appeal (called application) made on March 4, 2012 and received by the municipality is still pending.
10. The writ petitioner has challenged Annexure "P/6" on the ground that he was enjoying deemed sanction particularly when the appeal as in 7 Annexure "A" to the Affidavit-in-Opposition has admittedly not been disposed of within thirty days of the date of its filing and it having been filed after 60 days (in fact 77 days) had lapsed from the date of the application for sanction of the building plan and Annexure P/6 could not be issued by the Board of Councillors when 60 days had expired. For the reasons assigned by me in paragraph 6 of this judgment, and also those contained in paragraph 8 of this judgment, I agree with him and quash Annexure P/6.
11. Even though what has been stated in Annexure P/6, were they stated by the Board of Councillors within the period of 60 days from December 13, 2011 (the date when application for sanction of building plan was filed) or by the Appellate Authority within 30 days of preferring of the appeal (March 4, 2012) would have been weighty and serious objections to a deemed grant of sanction, as the said order dated April 5, 2012 is without jurisdiction for the reasons aforesaid, nothing contained therein shall be enforced or binding on the petitioner. This does not, however, mean that the writ petitioner under the deemed sanction will erect a building as proposed if it is contrary to the Act of 1993 or the rules made thereunder. This is because in terms of Section 208 itself, on which the writ petitioner relies, "so, however, that nothing in this section shall be deemed to have permitted the applicant to contravene any of the provisions of this Act or of the rules made under section 198 or of any rules or regulations applying to such work". The deemed sanction will be subject to the provisions of the Act of 1993, or the rules made under Section 198 thereof or any of the rules or regulations applying to such work, if there is any violation of any of the said rules, appropriate penal 8 actions, demolition and stoppage of work may issue, regardless of this order.
12. The writ petition is allowed to the above extent. There shall be no order as to costs.
(PROTIK PRAKASH BANERJEE, J.)