JUDGMENT 1. THIS rule was issued at the instance of the Commissioner, Corporation of Calcutta, City Architect, corporation of Calcutta and the district Building Surveyer, District-II (P), corporation of Calcutta, and is directed against a judgment and order dated september 24, 1973 passed by the building Tribunal, Corporation of calcutta. 2. THE facts relevant for the purpose of the present rule are as follows : the opposite parties Nos. 5 to 12 who are the owners of premises Nos. 210 and 212, Jamunalal Bazaz Street, Calcutta, filed an application along with copies of a plan on March 21, 1970 for sanction to construct a six-storied build ing at the said premises. The said proposal involved building construction to the extent of 529921 cubic feet. The said application was not pursued as the petitioners insisted upon compliance with rule 5 (A) of Schedule XVI to the calcutta Municipal Act, 1951 (hereinafter referred to as the Act. Rule 5a of Schedule XVI to the Act provides that if a building having an area of 8500 cubic meters is proposed to be constructed within he special parking zone the owner of such building has to provide for parking space within the premises containing such building, a certain area as specified in the said rule. On May 23, 1970 the opposite parties Nos. 5 to 12 submitted a fresh application for construction of a three storied building at the said two premises. Sanction was accorded to the proposed construction on condition that prior to the commencement of work in accordance with the plan the aforesaid two premises would have to be amalgamated. On April 24, 1972, the said opposite parties filed another application with copies of plans for permission to construct 4 more stories on the aforesaid site over the 3 stories for which sanction had been given. On account of certain defects the said application and the plans submitted therewith were not in compliance with rules 50, 51 and 52 of Schedule XVI of the Act, On may 11, 1972 a letter was addressed to the said opposite parties were request ed to remove those defects before the application could be dealt with further. On account of certain defects the said application and the plans submitted therewith were not in compliance with rules 50, 51 and 52 of Schedule XVI of the Act, On may 11, 1972 a letter was addressed to the said opposite parties were request ed to remove those defects before the application could be dealt with further. The petitioner No. 3 in the usual course of consideration of the said application for building sanction caused a copy of the said plan to be sent to the Constructional Surveyer and also caused the connected filed to be put up before the Building Inspector concerned for his inspection and report with form 'c' containing the objection, if any, to the said application for sanction as contemplated under rule 54 of Schedule xvi of the Act. The Building Surveyor submitted a report after inspection in which it was pointed out that several shops had been started without sanction from the Corporation of Calcutta. On February 12, 1973 a requisition in form 'c' under Rule 54 of Schedule xvi of the Act was served upon the opposite parties requiring them to furnish certain information, to produce some documents, and to satisfy the commissioner, Corporation of Calcutta with regard to the objection mentioned therein. On March 1, 1973 the opposite parties Nos. 5 to 12 submitted along with a letter 3 sets of plan purported to be in compliance with the said requisition for the proposed construction of 4 more stories. No ground floor plan was however submitted by the opposite parties and the plan submitted by them contained slight modification of the plan which had been submitted by them earlier. By two letters dated July 10, 1973 and July 17, 1973 the opposite parties replied to the requisition made under Rule 54. By a letter dated July 26, 1973 the petitioner No. 3 informed the opposite parties that without compliance with the requisition made under rule 54 the plan case could not be further dealt with. The opposite parties Nos. 5 to 12 treated this letter as a refusal of plan under Rule 55 (1) (b) of schedule XVI of the Act and they filed an appeal before the Building Tribunal, corporation of Calcutta. Thereafter on the 23rd August, 1973 the opposite parties Nos. 5 to 12 re-submitted fresh plans for permission to construct 7 additional stories over the existing 3 stories. Thereafter on the 23rd August, 1973 the opposite parties Nos. 5 to 12 re-submitted fresh plans for permission to construct 7 additional stories over the existing 3 stories. But in this plan the ground floor plan was not submitted. On the 25th August, 1973 the said opposite parties were required to file a complete set of plans. Before this re-submitted plan could be taken up for consideration the appeal was proceeded with and by its judgment and order dated 24th September, 1973 the Building Tribunal allowed the appeal and and ordered as follows : - "ordered that the appeal be allowed on contest and the D. B. S's order that the plan case will not be dealt with unless and until all the requisition of the Building department be completed with, set aside and it be ordered that this application under rule 50 (1) of Schedule XVI of the act be granted on appellants' making necessary change in the proposed plan as submitted by them, for compliance with Rule 3 of schedule XVI of the Act. " Against this judgment and order the present rule has been obtained. 3. MR. Banerjee, learned Counsel on behalf of the petitioners, has, in the first place, contended before us that in the present case there was no refusal to sanction the plan, so as to give the petitioners a right of appeal to the building Tribunal. Alternatively, he has argued that refusal, even there was any, was under Sub-rule 4 of Rule 54 of Schedule XVI, and as such the petitioners has no right of appeal. It was contended that Section 391a gives a right of appeal against an order passed, inter alia, under Rule 55 (1) (b) of Schedule XVI and not under Rule 54 (4. Mr. Dutt, learned Counsel on behalf of the opposite parties, has, on the other hand, argued that the power of the Commissioner to refuse sanction is limited by rule 57 of Schedule XVI. He contended that a refusal under Rule 54 (4)is also a refusal under Rule 55 (1) (b)and therefore, there is a right of appeal even if the refusal is on account of non-compliance with the requisition within the time mentioned in Rule 54 (4. In order to appropriate the contentions of the respective parties it would be necessary to set out the relevant provisions of these Rules, which are as follows :- "54. In order to appropriate the contentions of the respective parties it would be necessary to set out the relevant provisions of these Rules, which are as follows :- "54. (1) 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 new building (other than a hut) should be given, shall be respectively required and made in one requisition, and the applicant shall be apprised thereof at the earliest possible date. (2. Within fifteen working days after the receipt of any application under rule 50 for permission to execute any work, the Commissioner may require the applicant- (i) to furnish him with any information on matters referred to in that rule which has not already been given in the documents received thereunder, or with any document prescribed by that rule which has not been sent in; or (ii) to satisfy him in regard to any objections which may have been taken under these rules to the grant of permission to execute the work. (3) If any information of documents furnished under sub-rule (2) are, in the opinion of the Commissioner, incomplete or defective, he may, within fifteen working days after the receipt of the same, require further information or documents to be furnished. (4) If any requisition made under sub-rule (2) or sub-rule (3)is not complied with within three months, the application received under rule 50 shall be refused," "55. (1) Within one month after the receipt of any application made under rule 50 for permission to execute any work, or of any information or documents or further information or documents required under this schedule, or within one month after the Commissioner has been satisfied that there are no objections which may lawfully be taken to the grant of permission to execute the work, the Commissioner shall, by written order, either- (a) grant permission conditionally or unconditionally to execute the work, or (b) refuse, on one or more of the grounds mentioned in rule 57 or rule 61, as the case may be, to grant such permission. "57. "57. The only grounds on which permission to erect a new building (other than a hut) may be refused are the following, namely : - (5) that any information or documents required by the Commissioner under this schedule have not been duly furnished; or 4. IT would appear from the provisions of the Act quoted above that rule 54 (4) contemplates the refusal of an application received under rule 50. Rule 50 requires that every person who intends to erect a new building (other than a hut) shall send to the Commissioner an application for permission to execute the work. Therefore, when there is a refusal under rule 54 (4) it is the refusal of the application for permission to execute the work. Rule 55 (1) (b) on the other hand speaks of refusal to grant such permission. In other words, what is refused under rule 54 (4) is the application itself on account of its not being in compliance with the requirements of rule 51. Therefore, there is no question of the application being taken up by the Commissioner for consideration whether permission should be granted or not. It is only when all particulars required under the act have been given in the application that the application can be taken up for consideration by the Commissioner, and if there is a refusal to grant such permission, it is a refusal after the application was entertained and considered by the Commissioner. If the arguments advanced by Mr. Dutt is accepted, namely, that a refusal under rule 54 (4)is also a refusal under rule 55 (1) (b)so as to give the applicant a right of appeal before the Building Tribunal the effect would be that one stage in the process in granting sanction would be given a go-bye, that is to say, the stage when the application comes up for consideration before the Commissioner under rule 55, when permission is either granted or is refused. Again, it is to be noticed that rule 54 (4) does not speak of any order refusing the application whereas rule 55 clearly mentions that the Commissioner shall by written order either grant permission or refuse to grant such permission. It was argued on behalf of the opposite parties Nos. Again, it is to be noticed that rule 54 (4) does not speak of any order refusing the application whereas rule 55 clearly mentions that the Commissioner shall by written order either grant permission or refuse to grant such permission. It was argued on behalf of the opposite parties Nos. 5 to 12 that the requisition not having been made within fifteen days from title date of the application for permission to build there was no requisition under rule 54 (2), and therefore, the refusal was under rule 57 (5. Mr. Banerjee on behalf of the petitioners on the other hand contended that the letter dated July 26, 1973 from the petitioner no. 3 to the constituted attorney of the opposite parties was not a refusal but it merely gave the opposite parties an opportunity to furnish the required particulars although it was after 3 months. Mr. Banerjee, therefore, contended that even assuming that the said letter amounted to a refusals it was not a refusal under rule 55 (1) (b) and as such the appeal before the tribunal was not maintainable. In the present ease the opposite parties failed to comply with the requisition made under rule 54 (2. Therefore, there was no occasion for the Commissioner to consider the application on merits, and naturally in such a case there could be no question of making any order under rule 55 granting or refusing to grant the permission to execute the work. Section 391a of the Act which provides for an appeal opens with the words "any person dissatisfied with an order under" and several sections and rules are mentioned thereafter, of which rule 55 of schedule XVI is one. Therefore, if there is no order under rule 55 there can be no appeal to the tribunal. Rule 55 provides that "the Commissioner shall, by written order, either grant or refuse to grant permission". Clause (b) of sub-rule (1) of rule 55 empowers the Commissioner to refuse to grant permission to execute any work on one or more of the grounds mentioned in rule 57 or rule 61. Mr. Rule 55 provides that "the Commissioner shall, by written order, either grant or refuse to grant permission". Clause (b) of sub-rule (1) of rule 55 empowers the Commissioner to refuse to grant permission to execute any work on one or more of the grounds mentioned in rule 57 or rule 61. Mr. Dutt argued that since rule 57 enumerates the grounds on which the permission to erect the new building (other than a hut) may be refused, and one of such ground being failure to furnish any documents required by the Commissioner, as provided for in clause 5 of rule 57 refusal in the present case must necessarily be taken to be one under rule 55. We are unable to accept this contention of Mr. Dutt. No doubt the commissioner has power to make an order in writing refusing to grant permission under rule 55 on the ground that the information or documents required by him have not been furnished, but if this is interpreted to mean that in every case in which the information or the documents have not been furnished there must be a refusal to grant permission under rule 55 then the provision in rule 54 (4) would become superfluous and the purpose for which sub-rule (4) of rule 54 has been made would be rendered nugatory. In this connection it must also be noted that the expression used in rule 54 (4) is "the application received under rule 50 shall be refused" whereas the expression used in rule 55 and rule 57 are "permission to execute any work" and "permission to erect a new building" respectively. This difference in language must, in our opinion be given some meaning in interpreting these rules. We are accordingly unable to accept the contention advanced by Mr. Dutt on behalf of the opposite parties, and we hold that there was no refusal to grant permission under rule 55 so as to give the petitioners a right of appeal to the tribunal under section 391a. The next point urged in support of the rule is that there are a number of shops on the ground floor which were not shown in the ground floor plan. The next point urged in support of the rule is that there are a number of shops on the ground floor which were not shown in the ground floor plan. It is stated in paragraph 12 and 13 of the petition that the Building inspector, District II (P) inspected the site and submitted a report dated 5th february, 1973 in which he pointed out the aforesaid fact. According to the petitioner these shops exceeding 45 in number had been unlawfully and illegally constructed on the ground floor of the aforesaid premises. It was contended on behalf of the petitioners that the opposite parties did not disclose how these shop rooms were being used. It was further contended that when sanction was prayed for to build upon the existing three stories these rooms were shown by the opposite parties as office rooms although these were being used as shop rooms. It was argued by Mr. Banerjee on behalf of the petitioners that the existence of the shops and the non-disclosure thereof by the opposite parties Constituted a violation of the provisions of the provisions of the Act as contained in Section 451 read with section 5 (42) (b. Section 451 provides inter alia that no person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf keep open any private market, or wilfully or negligently permit any place to be used as a private market. Clause 42 of section 5 which defines a market reads as follows : (42. The expression market' shall be deemed to be synonymous with the expression 'bazar' and means- (a) a place where persons assemble for the sale of meat, fish, fruit, vegetable, livestock, or any other article of food of a perishable nature, whether or not there is any collection of shops, or warehouses or stalls for the sale of other articles in such place, or (b) any place of trade other than a place referred to in clause (a)where there is a collection of shops or ware-houses or stalls exceeding a number to be prescribed by the Corporation by rules, which is declared and licensed by the Corporation as a market. " it appeals from the Calcutta Gazette supplementary, page 1172 dated 29th december, 1955 that the number of stalls prescribed by the Corporation by rules is 30 shops or ware-houses. " it appeals from the Calcutta Gazette supplementary, page 1172 dated 29th december, 1955 that the number of stalls prescribed by the Corporation by rules is 30 shops or ware-houses. On behalf of the opposite parties Mr. Dutt pointed out that in order to be a market there must be a declaration to that effect by the Corporation under clause (42) of section 5 of the Act. According to him there was no such declaration in the present case. He argued that even if there were more than 30 stalls in the premises that did not constitute a market, and as such there has been no violation of section 451. Nothing was produced before us to show that there has been such a declaration. Under the circumstances we are unable to hold that the opposite parties are guilty of violation of the provisions of section 451 of the Act. 5. THE next point raised on behalf of the petitioners is that there has been a violation of rule 5a of Schedule xvi of the Act. Rule 5a provides that when a building having an area exceeding 8,500 cubic meters is proposed to be constructed then the owner of such building has to provide for a certain area as parking space as specified in the said rule. Rule 5a was introduced in Chapter XVI by a notification bearing No. 2206/lsg IA-14/72 dated 7th September, 1972 published the Calcutta Gazette Extraordinary page 1814 (27. According to the petitioners this subsequently introduced rule was incorporated in the Act when the opposite parties resubmitted fresh plan on the 23rd August, 1973. It was accordingly argued that without providing for the required parking space the permission to execute the work could not be granted. It was further argued on behalf of the petitioners that rule 5a was amended by a notification bearing No. 441/lsg IA-14/72 dated 28th February, 1973, and under the provisions of the amended rule 5a the owner of any building of 6 or more storey is also required to provide for parking space, and the commissioner has been given a discretion to insist upon parking space being provided for in respect of a building of the description mentioned in the rule, even if it is situated outside the special parking zone. It was contended that since the amended rule 5a gave a discretion to the Commissioner to insist upon parking space being provided for, even if a building is proposed to be constructed outside the special parking zone it was open to the Commissioner, in the present case to insist upon parking space being provided for in the proposed building. With regard to the aforesaid alternative argument of Counsel for the petitioners, Mr. Dutt contend ed that the petitioners should not be allowed to raise this point in view of the fact that this argument was never advanced before the tribunal. He submitted that the petitioners proceeded on the basis that the building in question was within the special parking zone as specified in sub-rule (6) of rule 5a. He submitted further that this hypothetical question of Commissioner using his discretion under the proviso to the amended rule 5a does not arise in this case at all as the Commissioner himself was not aware of the provision. In our view this contention of Mr. Dutt is well-found and it must be accepted. With regard to the other objection raised by the petitioners about the non-compliance with rule 5a mr. Dutt seriously challenged the petitioners case that the building in question is within the special parking zone as specified in sub-rule (6) of rule 5a counsel for the parties tried their best to establish their respective cases with the help of the plans prepared by them, and which were handed up to us. We tried in vain to find out from these plans whether the building in question falls within the special parking zone or not. It seems to us that this confusion has been created because the boundaries mentioned in sub-rule (6) of rule 5a is with reference to the old Ward numbers and the boundaries of the present wards having been considerably changed in the meantime it is impossible to delineate the special parking zone. We accordingly express no opinion on this point and we keep it open for decision in future, if and when occasion arises. Before parting with this point we wish to point out that the view taken by the tribunal that in the present case, even if the building is within the special parking zone compliance with rule 5a of Schedule XVI of the Act is not physically possible, is not correct. Before parting with this point we wish to point out that the view taken by the tribunal that in the present case, even if the building is within the special parking zone compliance with rule 5a of Schedule XVI of the Act is not physically possible, is not correct. If this view is taken then the requirements of rule 5a can easily be avoided by constructing a building piecemeal, and in that event the provisions of the said rule can easily be rendered nugatory. In fact, in the present case. the opposite parties Nos. 5 to 12 applied under rule 50 on March 21, 1970 for sanction to construct a six-stories building at the premises in question. This application was not pursued by them. as compliance with rule 5a was insisted upon by the petitioners. There after on May 23, 1970 the said opposite parties submitted a fresh plan for construction of a three-storied building at the said premises. We are, therefore, of the opinion that if the disputed premises falls within special parking zone as mentioned in rule 5a (6) it is open to the petitioners to insist upon compliance with rule 5a (1. But in view of the fact that the Commissioner never insisted upon parking space being provided for in terms of the amended Rule 5a at any previous stage of the proceedings. We do not think that it would be proper for us to allow the commissioner to use his discretion under the said Rule in the present case. 6. THE next point urged on behalf of the petitioners is that in the application filed on April 24, 1972 all material portions were left blank, and on account of this irregularity the application for permission to construct the building was liable to be refused. On behalf of the opposite parties Nos. 5 to 12 it was contended that the provisions of rules 50 and 51 are not mandatory and the omission in the application, if any, were not fatal. It appears from the Annexure 'a' to the petition of motion which is a copy of the application filed by the opposite parties nos. 5 to 12 that some of the items mentioned in the form were left blank. It appears from the Annexure 'a' to the petition of motion which is a copy of the application filed by the opposite parties nos. 5 to 12 that some of the items mentioned in the form were left blank. We, however, refrain from expressing any opinion on this aspect of the case because this point was not urged before the tribunal and the tribunal had no occasion to deal with the point now sought to be raised and we accordingly leave this question open to be decided in future. On behalf of the opposite parties Nos. 5 to 12 it was argued by Mr. Butt that the petitioners are not persons aggrieved so as to entitle them to move this Court under Article 227 of the Constitution. It was accordingly contended that the present application is not maintainable at the instance of the petitioners. We are unable to accept this argument advanced by Mr. Dutt. In the present case the petitioners insisted upon compliance with some provisions of the Act before the sanction prayed for could be granted. The opposite parties Nos. 5 to 12 failed to comply with the requisitions made by the petitioners and the petitioner No. 3 informed the opposite parties Nos. 5 to 12 that unless the requisition was complied with the application could not be dealt with. Against this communication received from the petitioner No. 3 the opposite parties Nos. 5 to 12 went up in appeal to the Building Tribunal and obtained an order to sanction the plan which was submitted by them. The petitioners, therefore, can certainly question the jurisdiction of the tribunal to entertain the appeal and the validity of its judgment under Article 227 of the Constitution. Mr. Dutt also referred to certain decisions regarding the scope of Article 227 of the Constitution and the power which the High court can exercise under that Article. The decisions cited are : AIR 1960 S. C. 137; AIR 1963 S. C. 1895; AIR 1968 s. C. 222 and AIR 1972 S. C. 171. Mr. Dutt also referred to certain decisions regarding the scope of Article 227 of the Constitution and the power which the High court can exercise under that Article. The decisions cited are : AIR 1960 S. C. 137; AIR 1963 S. C. 1895; AIR 1968 s. C. 222 and AIR 1972 S. C. 171. It is not necessary for us to discuss these cases in detail as it is well-established that the High Court cannot assume a power of Appellate Court and cannot direct every mistake of law but the power of superintendence under Article 7 been only be exercised if the tribunal has committed an error appellant on the face of the record, or it has assumed jurisdiction where it had none, or if it has acted arbitrarily or capricously in the exercise of its discretion. In the present case we have already found that the tribunal had no jurisdiction to entertain the appeal, and therefore, it is perfectly competent for this Court to interfere with the order passed by the tribunal. 7. THE last point urged on behalf of the opposite parties Nos. 5 to 12 is that the present application should fail on the ground of delay inasmuch as the judgment of the tribunal was passed on the 24th September, 1973 but the present application was moved on march 18, 1974. In the petition it has been stated that the certified copy of the judgment of the tribunal was sent to the petitioner No. 1 on 30th November, 1973 and it has been stated in the affidavit-in-reply that after the certified copy was received by the petitioner No. 1 some notes were exchanged between the City Architect and the Chief Law Office of the Corporation of Calcutta for the later's opinion as to whether this Court should be moved against the order of the tribunal or not, and ultimately the Deputy Commissioner-III granted the necessary permission to move this Court on 20th february, 1974 and then the application was moved on 18th March, 1971. Considering the facts and circumstances of the present case we do not think that there has been such an inordinate delay in moving the application for which the relief sought for by the petitioners should be refused. Mr. Dutt's contention in this regard is accordingly overruled. For the reasons mentioned above, this rule is made absolute. Considering the facts and circumstances of the present case we do not think that there has been such an inordinate delay in moving the application for which the relief sought for by the petitioners should be refused. Mr. Dutt's contention in this regard is accordingly overruled. For the reasons mentioned above, this rule is made absolute. The order of the tribunal is set aside. The opposite parties Nos. 5 to 12 are given three month's time from this date to comply with the requisition made by the petitioners. There will be no order as to costs.