D. P. BANERJEE, J. ( 1 ) - This appeal, filed by the Appellant, is against the judgement delivered by Satyabrata Sinha, J. , passed on 26th September, 1991. In the writ application, the writ petitioner opposite party, infer alia, prayed for issuance of a writ in the nature of Mandamus, directing the appellants to grant formal sanction of the building plan in terms of the decision already taken in this behalf by the Municipal Authorities. The facts of this case for the purpose of this of this appeal is that the writ petitioner opposite party is the owner of the premises No. 39, Shakespeare Sarani, Calcutta, and filed an application for sanction of the building plan before the Calcutta Municipal Corporation on 11th October, 1988. 'no. Objection' Certificate from the Director of West Bengal Fire Services as well as from the Deputy Commissioner (Traffic) were obtained and filed. The Municipal Building Committee recommended the sanction of the said building plan on 30th December, 1988, subject to fulfilling of the three conditions and the same was communicated to the petitioner by letter dated 27. 01. 1989, by the District Building Surveyor, in which it was stated:"this is a proposal for erection of a new partly seven, partly eight and partly nine storeyed building for business-cum-Residential purpose. The Committee has considered the case and recommends for sanctioned subject to compliance with following requisitions: 1. Underground reservoir should be shifted beyond 3. 5 metres from the property boundary line abutting on Sarojini Naidu Sarani, i. e. Old Rowdon Street. 2. A strip of land fallen within 11 metres from the centre line of Shakespeare Sarani shall have to be thrown to C. M. C. Road. 3. The corner of widen Shakespeare Sarani and Rowdon Street shall have to be splayed by 2. 4 x 2. 4 metres and the splayed portion shall have to be thrown to C. M. C. Road. " 4. The Respondent writ petitioner duly compiled with all the requisitions and formalities stipulated in the said letter, dated 27th January, 1989, and the petitioner duly conveyed a part of its properly to the Calcutta Municipal Corporation by two separate deeds of gifts executed on February 2, 1989, and on August 11, 1989, respectively. The said gift of land, without any consideration, was accepted by the Municipal Authorities by the letter dated September 7, 1989. The said gift of land, without any consideration, was accepted by the Municipal Authorities by the letter dated September 7, 1989. ( 2 ) THE said proposed building would be constructed at the corner of two streets and in view of the conditions of section 405 of Calcutta Municipal Corporation Act and under Rule 18 (5) of the said Rules, the proposed plan had provided for splaying of corner sides of Shakespeare Sarani and Rowdon Street and marked as 'hatched Portion'. It also appear that in the outlined development plan of the Calcutta Metropolitan Development Authority, prepared under the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, that there was a proposal for widening of Shakespeare Sarani, whereby a strip of land falling within 11 metres from central line of Shakespeare Sarani would be necessary. This land, could have been acquired by the appropriate authority, measuring about one cottah two chattacks (85. 64 sq. metres) and substantial amount of compensation money for such acquisition if made. The plan that was submitted on 11. 10. 1988, was prepared in a way as if that the sanction of the said plan, 85. 64 sq. metres of land were left out all along Shakespeare Sarani, falling within 11 metres from the central line of Shakespeare Sarani and this was shown in the plan which was submitted to the Municipal Authority together with another boundary line after leaving aside aforesaid 85. 64 sq. metres, of land to be required for widening of the road in future. ( 3 ) AT back portion of the premises, the plan had provided for making an underground reservoir for 50,000 litres. In the plan, 60. 5% of the total area of the premises had been left open with sky on all sides around the proposed building, thus enabling the fire elements to move around the said proposed building. Even though under the rules only 50% of the total area of the premises are required to keep open space. After considering all the aspects of the matter and taking the view of the departmental observations, the Municipal Building Committee adopted a resolution in respect of the sanction of the said plan. Even though under the rules only 50% of the total area of the premises are required to keep open space. After considering all the aspects of the matter and taking the view of the departmental observations, the Municipal Building Committee adopted a resolution in respect of the sanction of the said plan. The said resolution is as follows:-"item No. 11 : Re: 39, Shakespeare Sarani this is a proposal for erection of a new partly seven, partly eight and partly nine storied building for business-cum-residential purpose. The committee has considered the case and recommends for sanction subject to compliance with the following requisitions (Emphasis supplied)*: 1. Underground reservoir should be shifted beyond 3. 5 metres from the property boundary line abutting on Sarojini Naidu Sarani i. e. Old Rowdon Street. 2. A strip of land fallen within 11 metres from Shakespeare Sarani shall have to be thrown to C. M. C. Road. 3. The Corner of Shakespeare Sarani and Rawdon Street shall have to be splayed by 2. 4 x 2. 4 metres and the splayed portion shall have to be thrown to C. M. C. Road. 4. However the applicant will get the advantage of ground coverage. F. A. R. , obligatory space etc. as he could get prior to throwing that strip of land. All other departmental requisitions shall have to be complied with. P. A. to City recommended by the Chairman Dated. . . . . Architect 10. 1. 89 Municipal Building Committee, The calcutta Municipal calcutta Municipal Corporation corporation approved by the Mayor-in-Council Dated ?. . 19. 1. 89 the Calcutta Municipal Corporation sd/- Illegible 25. 1. 89 p. A to City Architect, The Calcutta Municipal corporation" ( 4 ) THE said recommendation was thereafter forwarded to the Mayor- in-Council by the Chairman. Calcutta Municipal Building Committee, who is the Commissioner of the Calcutta Municipal Corporation. After approving the said recommendation on 10th of January, 1989, Chairman of the Municipal Building Committee signed the same and on 19th January, 1989, the Mayor-in-Council of the Calcutta Municipal Corporation approved the said recommendation in toto. It is the case of the writ petitioner that though the owner was not required under the Building Rules or the Act to shift underground reservoir beyond 3. 5 metres from the operative line from Sarojini Naidu Sarani (Old Rowdon Street ). It is the case of the writ petitioner that though the owner was not required under the Building Rules or the Act to shift underground reservoir beyond 3. 5 metres from the operative line from Sarojini Naidu Sarani (Old Rowdon Street ). The Respondent writ petitioner followed the said suggestion and in acknowledgement of such proposal delivered to the Municipal Corporation a revised plan on 14. 02. 1989, after readjusting the underground reservoir according to the desire of the Municipal Building Committee, dated 30. 12. 1988, which was approved by the Mayor-in-Council. It was the case of the writ petitioner Opposite Parties that since the writ petitioner had complied with all the legal requirements necessary for sanction of the plan and the Calcutta Municipal Corporation and all its appropriate authorities which are the decision making authorities after scrutinising the matter in its various departments as provided in proviso to sub-section (5) of section 396 of the Calcutta Municipal Corporation Act, finally approved by the Mayor-in-Council on 19. 01. 1989 and further having accepted from the writ petitioner apposite party, a free gift of land made by two registered deeds of gift and the respondent writ petitioner, having agreed to shift the underground reservoir in accordance with the recommendation of the Municipal Building committee, nothing remained for the parties for any fresh or further consideration but the same amounts to due sanction of the said plan. It was submitted that the plan had been sanctioned and deemed to have been sanctioned prior to coming into force of the provision of section 398a of the Calcutta Municipal Corporation (Amendment) Ordinance, 1989, in law and in equity. The stand of the Municipal Corporation was that there was no formal sanction given by the Municipal Commissioner, under section 396 before the said restriction imposed under section 398a of the said Amendment Act came into force and accordingly the building plan could not be sanctioned in violation of the provisions of the said amended section 398a of the said Act. ( 5 ) 1. ( 5 ) 1. It was further submitted on behalf of the Municipal-Authorities that neither the recommendations of the Municipal Building Committee nor the approval of the said recommendations of the Mayor-in-Council can be equated with sanction by the Municipal Commissioner in exercise of the power under section 396 of the said Act, and that there is no scope for sanction in the matter which is outside the purview of the statute. The learned Trial Judge, after considering the matter in his judgement, recorded the following facts :-"from the records of the case, therefore, the following facts emerge. " a) The Municipal Building Committee recommended sanction of the said building plan subject to the condition mentioned therein on 30. 12. 88. (b) The Proposal of the Municipal Building Committee was also approved by the Mayor-in-Council who admittedly is the appropriate authority. (c) Except handing over the vacant possession of the lands gifted by the petitioner to the Calcutta Municipal Corporation in terms of the two deeds of gifts, the petitioner has fulfilled other requisitions. In relation to the handing over actual possession of the gifted lands, the petitioner has given an undertaking. (d) The proposal of the petitioner also appears to have been accepted by the Commissioner of the Calcutta Municipal Corporation. " ( 6 ) IN this view of the matter, the approval of the order dated 30. 12. 88 being a conditional one and the said conditions having been fulfilled by the petitioner, the building plan itself would be deemed to have been sanctioned on 30. 12. 88, that is, prior to the coming into force of the Calcutta Municipal Corporation Amendment Ordinance which was promulgated on 18th December, 1989 by Ordinance No. IX whereby and whereunder section 398a was added in the said Act. ( 7 ) THIS Court as noticed hereinbefore in the case of Atmaram Kanoria and Ors. v. L. K. P. Prasad and Ors. , reported in 1990 (1) CLJ 169 , has clearly held that the provision of section 398a is prospective in nature. ( 8 ) IN view of the fact that in terms of the recommendation of the Municipal Building Committee dated 30. 12. v. L. K. P. Prasad and Ors. , reported in 1990 (1) CLJ 169 , has clearly held that the provision of section 398a is prospective in nature. ( 8 ) IN view of the fact that in terms of the recommendation of the Municipal Building Committee dated 30. 12. 88 and as subsequently approved by the Mayor-in-Council and other competent authorities of Calcutta Municipal Corporation, a right been crystalised in favour of the Petitioner and thus, the said right could not have been taken away except by an appropriate legislation. In view of the fact that the said right has accrued in favour of the petitioner prior to the coming into force of the provision of section 398a of the Calcutta Municipal Corporation Act, the petitioner is entitled to a direction from this Court upon the respondent Corporation to sanction the building plan in terms of its recommendation dated 30. 12. 88. It may, however, be recorded that the petitioner is bound by the undertaking given by him in relation to the aforementioned matter as also the undertaking given by him with regard to the handing over of the vacant land to the Calcutta Municipal Corporation immediately on demolition of the building in question. The Calcutta Municipal Corporation will be entitled the sold land gifted to it by the petitioner for its own use. This order is, however, not subject to any order that may be passed by the Supreme Court of India in the appeal which is pending before it against the judgment of this Court in the case of Terra Firma Investment and Trading Pvt. Ltd. and Ors. v. The State of West Bengal and Ors. reported in 1992 (1) Calcutta High Court Notes P. 415. ( 9 ) MOREOVER, in terms of section 396 of the Act read with Rule 55 of the Building Rules, the respondent Corporation was bound to accord or refusing its sanction within a period of three months from the date of submission of the building plan. ( 10 ) IN any event it should have sanctioned the building plan within the aforementioned period from the date of acceptance and compliance of the condition stipulated in the said letter dated 22. 1. 1989. ( 10 ) IN any event it should have sanctioned the building plan within the aforementioned period from the date of acceptance and compliance of the condition stipulated in the said letter dated 22. 1. 1989. ( 11 ) THE respondents, as in evident from the records delayed the grant of sanction of the said building plan and then it cannot take advantage of its own wrong, nor the petitioner can suffer owing to acts of commission and omission on the part of the respondent. ( 12 ) FOR the reasons aforementioned this writ application is allowed and the respondents are directed to sanction the building plan submitted by the petitioner in terms of the aforementioned recommendation by the Municipal Building Committee dated 30. 12. 88. It is, however, made clear that the said building plan is to be sanctioned subject to the fulfilment of conditions mentioned therein except that the petitioner shall hand over actual physical possession of the land's gifted by him to favour of the Calcutta Municipal Corporation in terms of the two deeds of gift dated 2. 2. 89 and 11. 3. . 89 immediately upon demolition of the building in question without any demur whatsoever. In case the petitioner fails and/ or neglects to hand over vacant possession of the said land in favour of the Calcutta Municipal Corporation, it would be open to it to take steps against the petitioner in accordance with Law including stopping of construction of the building and/or demolition of the constructed portion of the building. ( 13 ) " Let a writ of mandamus be issued accordingly. However, keeping in view the facts and circumstances of the case the parties are directed to pay and bear their own costs. " ( 14 ) ON behalf of the Appellant, Mr. Arun Prakash Sirkar submitted that the Municipal Corporation, who is the appropriate authority, had not accorded sanction to the building plan of the premises No. 39, Shakespeare Sarani, as required under section 396 of the Act, and further submitted that the learned Trial Judge was not right in holding that the plan in question was in essence and substance approved. It was further submitted that the power of the Municipal Building Committee or Mayor-in Council is not the same with the power of the Municipal Commissioner to accord sanction of a building plan. It was further submitted that the power of the Municipal Building Committee or Mayor-in Council is not the same with the power of the Municipal Commissioner to accord sanction of a building plan. The power to accord sanction is statutory and the Municipal Commissioner can only exercise the said power and none else. There is no scope for 'formal' or 'deemed' sanction as the said concept is outside the scops of the Act. It was submitted that the matter was placed with the Municipal Commissioner on 5. 12. 1989 for considering architectural feature only and that the same does not constitute and that the approval thereof does constitute sanction of the plan and that in the facts and circumstances of this case it must be held that the proposed building plan was pending consideration before the Municipal Commissioner. It was further submitted that as soon as the provisions of section 398a of the Act was promulgated on April 12, 1989, the said plan could not be sanctioned under the new law. On behalf of the respondents, the decision of this Court, in the following cases had been referred to :-1)atmaram Kanoria v LKR Prosad reported in 1990 (1) CLJ 169 2) terrafirma Investment and Trading Pvt. Ltd v State of West Bengal and Ors. 199 (1) CHN 415 3)trimplex Industries Pvt. Ltd. v State of West Bengal, 1992 (2) CLT 475 ( 15 ) IN Atmaram Kanoria's case the Division Bench of this Court held that section 398a of the Act was not retrospective in operation but the same was prospective in operation. It was further stated that in the Terrafirma's case the Division Bench of this Court held that the provisions of section 398a was unconstitutional but ultimately the Supreme Court overrules the said Division Bench judgment of this Court. It was further submitted that the plan has to be sanctioned in accordance with the building Rules prevailing at the time when the sanction a given. It was further submitted that the learned Trial Judge was wrong in granting the relief as prayed for. It was further submitted that the plan has to be sanctioned in accordance with the building Rules prevailing at the time when the sanction a given. It was further submitted that the learned Trial Judge was wrong in granting the relief as prayed for. ( 16 ) ON behalf of the respondent writ petitioner, it was submitted that it is the authorities under the Calcutta Municipal Corporation Act for sanction of the building plan had decided that the building plan submitted by the writ petitioner opposite party fulfilled all the requirements under the Act, under the rules, framed thereunder, and that the Municipal Commissioner of the Corporation of Calcutta, who had sanctioned the said plan in view of the fact that the said Commissioner had not only taken part in the meeting of the Municipal Building Committee, or which he was the Chairman on 30. 12. 1988, and as a Chairman of a collective body, the said Municipal Building Committee had recommended sanction of the said plan. It is stated that individually as well as the Chairman of the Municipal Building Committee had approved the same on 10/1/1989. It was further submitted that the Municipal Commissioner as Chairman of the Municipal Building Committee was a party to the resolution dated 30/12/1988 and on 10/1/1989 the said Municipal Commissioner approved the said recommendation for sanction of the plan and accordingly the plan has been sanctioned for all its intents and purposes under the law when the Mayor in Council had accepted the said recommendation of the said Municipal Building Committee in accordance with law and only the ministerial work of formally sending the said sanction order to the party remained to be done. The decision making process for sanction of the plan had been concluded long before the provisions of section 398a came force. ( 17 ) IN this case the application for sanction of plan was submitted on 11th October, 1988. On 28/11/1988 "no Objection Certificate" from the Fire Services was filed. "no Objection" Certificate from the Traffic Department was filed 23/12/1988. On 30/12/1988, the Municipal Committee approved the plan. The Chairman of the Municipal Building Committee was the Municipal Commissioner who had recommended for sanction of the said plan. On 10/1/1989 and on 19/1/1989 it was approved by the Mayor-in-Council. The P. A. to City Architect also singed the same on 25/1/1989. On 30/12/1988, the Municipal Committee approved the plan. The Chairman of the Municipal Building Committee was the Municipal Commissioner who had recommended for sanction of the said plan. On 10/1/1989 and on 19/1/1989 it was approved by the Mayor-in-Council. The P. A. to City Architect also singed the same on 25/1/1989. The prohibition imposed under section 398a of the said Act was introduced vide the Amendment on 18th December, 1989, section 391 of the said Act provides the Constitution of Municipal Building Committee, which reads as follows :-" 391. Municipal Building Committee- (1) the Mayor-in-Council shall constitute a Municipal Building Committee with the Municipal Commissioner as its Chairman and an officer of the Corporation as its convener. (2) The Committee shall have, in addition to the Chairman and file Convener, (five other members) of whom- (a) One shall be a nominee of the Calcutta Metropolitan Development Authority. (b) One shall be a nominee of the commissioner of Police, Calcutta. (c) One shall be the Director of West Bengal Fire Services (or his nominees ). (d) One shall be a nominee of the State Government and (e) One shall be the Chief Engineer, Municipal Engineering Directorate, Department of Local Government and Development of Government of West Bengal. 1)the Committee may co-opt one person to be nominated by the concerned department of Government while dealing with any case regarding educational building or institutional building of assembly building or, industrial building or hazardous building. 2)the Committee shall meet at such periodical interval as may be (determined by the Mayor-in-Council ). 3)provided that ordinarily at lease three meetings shall be held during every Calendar month. 4)the Committee shall; in accordance with the provisions of this Act or the rules and the regulations made thereunder or of any other law in force for the lime being, scrutinize every application for erection or re-erection of a building for which notice has been received under section 393 or 394, except for a residential building to be erected or re-erected on a plot of 500 square meters or less of land, and shall forward its recommendations to the Mayor-in-Council. ( 18 ) PROVIDED that during such scrutiny the Committee shall consider matters related to preserving, developing and maintaining the aesthetic quality of urban and environmental design within Calcutta and shall, in respect of any building or any execution of work, if it affects or it is likely to affect the sky-line or the aesthetic quality or urban or environmental design, or any public amenity therein, recommended on such matters also : provided further that in respect of any building or execution of any work, if such building or work affects or is likely to affect- (a) the functioning of microwave systems for telecommunication purposes, or (b) any function for purpose, of civil aviation, the committee shall, in accordance with such rules as may be framed in consultation with such departments or agencies of Government as have control on such matters, refer such case to such Department for their opinion before finalising its recommendations. (6) The Mayor-in-Council may refer any other matter, included in this Chapter, to the Committee for its scrutiny and recommendation. (7) The Mayor-in-Council shall consider the recommendations of the Committee and, in case of any modification, alternation or cancellation of the same, shall record the reasons thereof in writing". Section 396 provides for sanction or provisional sanction or refusal of building plan. The said sanction reads as follows :-"396. sanction of provisional sanction or refusal of building or work - (1) The Municipal Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-section (2) or sub-section (3) of this section or the provisions of section 405 or section 406 : provided that no such sanction shall be accorded without the prior approval of the Mayor-in Council in case of any building, except a residential building proposed to be erected or re-erected on a plot of 500 square metres or less of land :-provided further that the Mayor-in Council shall consider the recommendations of the Municipal Building Committee and shall finalise its decision after such consideration. (2) The sanction of a building or a work may be refused on the following grounds (a) that the building or the work or the use of the site for the building or the work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of this Act or the rules and the regulations made thereunder or of any other Law in force for the time being ; (b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the rules and the regulations made in this behalf; (c) that any information or document required by the Municipal Commissioner under this Act or the rules or the regulations made thereunder has not been duly furnished; (d) that in cases requiring a layout plan under section 364 or section 365 such layout plan has been sanctioned in accordance with the provisions of this Act; (e) that the building or the work would be an encroachment on Government land or land vested in the Corporation; (f) that the site of the building or the work does not about on a street or projected street and that there is no access to such building or work from any such street by any passage or pathway appertaining to such site. (3) If, for the use of a building a licence or permission is required from any department of Government or statutory body under any law in force for the lime being, and if such licence of permission is not immediately available, a provisional sanction shall be given for the erection of such building and upon the production of such licence or permission and submission of duly authenticated copies thereof, sanction under sub-section (1) shall be given; provided that the provisional sanction shall be subject to all other provisions of this Chapter. (4) The Municipal Commissioner shall communicate the sanction or the provisional sanction to the person who has given the notice under section 393 or section 394: and where he refuses sanction or provisional sanction either on any of the ground specified in subsection (2) or under sanction 405 or section 406; he shall record a brief statement of his reasons for such refusal and shall communicate the refusal along with the reason therefor to the person who has given the notice. (5) The sanction or the provisional sanction or the refusal to the erection of a building or the execution of a work shall be communicated in such manner as may be specified in the rules and the regulations made in this behalf and, in the case of sanction or provisional sanction to the erection of a building, the occupancy or use groups shall be specifically stated in such sanction. " ( 19 ) UNDER section 391 of the said Act, when a Municipal Building Committee is constituted, the said Committee has to Scrutinise every application for sanction of building plan and had to forward its recommendation to the Mayor-in-Council. (see sub-section 5 of section 391 of the Act ). Under section 391 (1) of the said Act, the Commissioner is the Chairman of such a committee. Under section 396 of the said Act, the Municipal Commissioner shall sanction all erection of a building plan but the proviso to sub-section (1) of section 396 provides that "provided that no such sanction had been accorded without the prior approval of the Mayor-in-Council in case of a building, except residential building proposed to be erected or re-erected on a building of 500 sq. metres or less". Under the second proviso it is provided further that "the Mayor-in-Council shall consider the recommendation of the Municipal Building Committee and shall finalise its decision after such consideration. Admittedly, in the instant case, the Municipal Building Committee had considered the matter and on 30/12/1988 recommended the plan for sanction subject to compliance with certain conditions and the admittedly without any loss of time, the writ petitioner/opposite party, had duly compiled with the said requisitions and thereafter the Municipal commissioner, who is the Chairman of the Municipal Building Committee, had separately recommended for the sanction of the plan on 10th January 1989, on fulfilment of all the conditions that were laid down by the Municipal Building Committee in its resolution dated 30/12/1988. The Mayor-in-Council, on consideration of the recommendation of the Municipal Building Committee, dated 30/12/1988, as well as the recommendation of the Municipal Commissioner as the Chairman of the said Committee, on 10/l/1989, had duly approved the sanction of the plan on 19/1/1989. The question is whether tire plan stands sanctioned because of the approval given by tile Mayor-in-Council in the matter. The question is whether tire plan stands sanctioned because of the approval given by tile Mayor-in-Council in the matter. Second proviso to section 396 (1) of the said Act provides that it is the Mayor-In-Council who should consider the recommendation of the Municipal Building Committee and "shall finalise its decision after consideration" which was exactly been done by the Mayor-in-Council on 19/1/1989. On proper construction for the provisions of section 391, and section 396 of the said Act, it is clear that the Municipal Commissioner is not the authority to sanction or refuse to sanction the plan. The Act has provided a Municipal Building Committee with the Municipal Commissioner as the Chairman, when the Municipal Building Committee, including the Municipal Commissioner as the Chairman, makes a recommendation and that recommendation is made to the Mayor-in-Council and when the Mayor-in-Council considers the recommendation and accepts the recommendation, the matter in its finality, in view of tile provisions to second proviso to section 396 of the said Act. In law, one cannot make a recommendation to himself. The recommendation, as provided under section 391 of the said Act, by a Committee presided over by the Municipal Commissioner, is not authorised and/or competent to make recommendation to the Municipal Commissioner for the same reason that a larger body is not authorised as the competent and it is against the scope of the Act to make recommendation to a member of the main body, namely Municipal Building Committee. When the Municipal Commissioner, as the Chairman of the Municipal Building Committee, makes a recommendation that the plan was in order and makes a recommendation for sanction so far as Municipal Commissioner is concerned, the Municipal Commissioner cannot then refuse to act in the matter as the same is binding upon the Municipal Commissioner and the subsequent acts of the Municipal Commissioner are nothing but purely ministerial. The decision is taken by the Municipal Building Committee and in the decision making process, the Municipal Commissioner, being the Chairman of the Municipal Building Committee, when makes a recommendation to the Mayor-in-Council and the Mayor-in-Council accepts such recommendation and/or approve such recommendation, the matter reaches its finality and the decision making process is thus completed. The decision is taken by the Municipal Building Committee and in the decision making process, the Municipal Commissioner, being the Chairman of the Municipal Building Committee, when makes a recommendation to the Mayor-in-Council and the Mayor-in-Council accepts such recommendation and/or approve such recommendation, the matter reaches its finality and the decision making process is thus completed. Thereafter, there is no scope for taking any decision afresh by the Municipal Commissioner under the scope and ambit of any of the provisions of this Act sitting over the decision of the Committee. After the Municipal Building Committee taken a decision on consideration of the entire matter, by the Municipal Building Committee with Municipal Commissioner as the Chairman, no descretionism left for the Commissioner to be exercised under the Act either in grant or to refuse sanction, on the contrary, It is clear that under the second proviso to section 396 (1) of the said Act, it is clear that certain amount of discretion is left with the Mayor-in-Council who is to consider the recommendation of the Municipal Committee and who is to finalise its decision on such consideration if he thinks fit. Reading the provisions of sections 391 and 396 of the said Act, it is clear that alter the decision of the Municipal Building Committee, the Municipal Commissioner had not been conferred with any power to take a decision contrary to and/or inconsistent therewith the decision of the Municipal Building Committee or to sit over Judgement of the said Committee. There is an important distinction between duties which are discretionary and duties which are purely ministerial in nature. ( 20 ) IN case of ministerial function the authorities are not vested with any discretionary power as to the performance of duty are not required to use any decree of judgment or descretion. On the contrary in case of discretionary power the authorities can exercise same decree of judgement or discretion and he has to take an independent decision and cannot be dictated to do a particular act. It is also well-settled principle that the Court can direct an officer who is charged with a ministerial act to perform in a particular manner. On the contrary in case of discretionary power the authorities can exercise same decree of judgement or discretion and he has to take an independent decision and cannot be dictated to do a particular act. It is also well-settled principle that the Court can direct an officer who is charged with a ministerial act to perform in a particular manner. But in case of authorities conferred with the power to take a decision which are not ministerial in nature, the court cannot direct that authority to act in a particular manner, but court can only direct the authority to exercise its discretion and/or to take a decision in the matter to accordance with law. Reading the provisions of sections 391 and 396 of the said Act, it does not appear that the Municipal Commissioner has been conferred with any power to exercise any decree or Judgement and/or any discretion in the manner, but he is only a part of the decision making process as the Chairman of the Municipal Building Committee, and when the decision of the Municipal Building Committee is approved and finalised by the Mayor-in-Council, in that event the Municipal Commissioner is to act as a mere post office or in other words, he has no discretion left but to communicate the decision, already taken that the plan sanctioned and to sign a formal order. In the facts and in the circumstances of this case, it is clear and we agree with the view of the learned Trial Judge that the plan had been sanctioned in substance and for its all intents and purposes. When second proviso to sub-section 1 of section 396 provides that the matter has to be finalised by the Mayor-in-Council, in that event, under the rules of Construction, the Municipal Commissioner could not be said to be the final authority in the matter but a subordinate authority. Under the Act, the Municipal Commissioner has not been conferred with any power to consider the recommendation made by the Building Committee of which he is the Chairman and refused to accept the recommendations. The recommendations were not meant to him, but for the Mayor-in-Council. Under the Act, the Municipal Commissioner has not been conferred with any power to consider the recommendation made by the Building Committee of which he is the Chairman and refused to accept the recommendations. The recommendations were not meant to him, but for the Mayor-in-Council. According to the provisions of section 391 read with section 396 of the said Act, when the Mayor-in-Council approves the recommendation of the Municipal Building Committee, the sanctioning process comes to an end, and nothing remains for the Municipal Commissioner to do but has to communicate such decision which has been taken in accordance with the law. ( 21 ) WHEN a proviso is provided under the section, it is intended to narrow the effect of the proceeding words of the section, when under the proviso the power to finalize the sanctioning of a plan is conferred upon the Mayor-in-Council, after a scrutinizing the recommendation, that decision of the Mayor-in-Council, who in law is the final authority and who in law is the authority to accept the recommendation or to refer the matter back to the Municipal Building Committee for consideration of some points, this is not subject to any superintending power by the Municipal Commissioner. The Commissioner is only to act as a mere post-office, who has not been conferred any power in the decision making process independently, except he has been made a Chairman of the Municipal Building Committee. "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the proceeding portion of the enactment or to qualify something enacted therein which but for proviso would be within it and such proviso cannot be construed as enlarging within it". . . . . . . . "when one finds a proviso to a section, said Lush, J. , in Mullains v Treasure of Survey the natural presumption is that but for the proviso, the enacting part of the section would have included in the subject matter of the proviso". (see Craies on Statute Law, Sixth Edition, Page 217 ). . . . . . . . "when one finds a proviso to a section, said Lush, J. , in Mullains v Treasure of Survey the natural presumption is that but for the proviso, the enacting part of the section would have included in the subject matter of the proviso". (see Craies on Statute Law, Sixth Edition, Page 217 ). ( 22 ) IN that view of the scope of proviso and in view of the scheme introduced for the sanction of a plan, it must be held that in the facts and in the circumstances of this case the plan has been sanctioned on the very date when the matter was finalised by the Mayor-in-Council. ( 23 ) IN this case it appears that the Municipal Building Committee has imposed a condition in its resolution dated 30/12/1988 for making gift of land which fell within 11 metres from Shakespeare Sarani for the purpose of widening the Municipal Road as a condition for grant of permission sanctioning of the plan in question which the Respondent Writ petitioner readily accepted and made the necessary free gift of the said land. Municipal Authorities are creatures of the Status. Under the Statute the Calcutta Municipal Corporation had no such authority or jurisdiction to ask a party to make a free gift of a piece of land as a pre-condition for sanctioning of a plan. It is well settled principle that where there is an Act creating a Corporation for a particular purpose and giving it powers for that particulars purpose, what does not expressly or impliedly authorize is to be taken to be prohibited. But those things which are incidental to and may reasonably and properly be done under the main purpose, though they may not be literally within it would not be prohibited. The condition No. 2 imposed in the resolution dated 30/12/1988 by the Municipal Building Committee was beyond the scope of the powers of the said Authorities as no such powers have been imposed under the law and it cannot be said to be incidental to any of the provisions of the said Act. This question was also considered by a Division Bench of this Court in the case of Thakkar Estate and Finance Co. Pvt. Limited and Another v. The Calcutta Municipal Corporation and Ors. This question was also considered by a Division Bench of this Court in the case of Thakkar Estate and Finance Co. Pvt. Limited and Another v. The Calcutta Municipal Corporation and Ors. , in appeal No. 266 of 1991, judgement delivered on 10/2/1994* and it is stated that the special leave filed against the said decision of the Division Bench of this Court was also rejected by the Hon'ble Supreme Court of India. But in the instant case, the conditions for making gill has been voluntarily accepted by the respondent writ petitioner and the gift was already made in favour of the Calcutta Municipal Corporation. The said question is not reopened even though the said act was clearly ultra vires. ( 24 ) IN any event, acceptance of the sold deed of gift of valuable peace of land creates a legitimate expectation apart from the principle of promissory estopple in favour of the writ petitioner. , opposite party. The principles of equity cannot be ignored in this particular case. Halsbury's Laws of England. 4th Edition. Paragraphs 877 and 878. Vol. 16, Paragraphs 1306, 1307, the principle that equity looks an that as done which ought to be done has been laid down. The said paragraph 1306 and 1307 read as follows :"1306. Equity looks on that as done which ought to be done, equity looks upon that as done which ought to be done or which is agreed to be done, but this maxim does not extend to things which might have been done; nor will equity apply it in favour of everybody, but only of those who had a right to pray that the thing should be done. Thus, where the obligation arises from contract, that which ought to be done is only treated as done in favour of some person entitled to enforce the contract as against the person liable to perform it. The true meaning of the maxim is that equity will treat the subject matter, as to colleceral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been done exactly as they ought to have been, but the contract itself is not varied. The doctrine does not make for the parties contracts different from those they have made for themselves. The doctrine does not make for the parties contracts different from those they have made for themselves. The leading examples of the application of the maxim are in cases where land been directed to be turned into money, and vice varsa, and where a contract remains executory on one side but has been executed on the other. The rules in ail cases of the first kind is that what ought to have been done shall be taken as done, a rule so powerful as to alter the very nature of things, to make money land, and on the contrary, to turn land into money. 1307. Application of the maxim. Where, for example, possession is held under an agreement for a lease, of which specific performance would be ordered, the parties are treated in equity as being in the same position with regard to their respective rights as if a lease had been granted. Similarly, money which would have been payable under a contract if the defendant had no wrongfully prevented anything from becoming due will be treated as a debt In equity although it is not a debt at law. Upon the same principle is based the efficacy of an assignment of after-acquired property. Neither in equity nor at law can there be an assignment of what has no existance. The assignment operates as a contract, and if it is for value, then when the property comes into existence equity, treating that as done which ought to be done, fastens upon the property, and the contract to assign becomes in equity a complete assignment. So, where an agreement has been entered into by a company with a clear intention of creating a charge, a charge will be held to be established notwithstanding defects of form, if the transaction is Inter viras; and it may be intra vires to the extent to which the company has actually received money, and ultra viras as regards money advanced upon it to some other company". ( 25 ) ACCORDINGLY, on the basis of the principles of equity as laid down in Halsbury's Laws of England, mentioned above, the appellant cannot take a stand that the plan had been sanctioned in the facts and in the circumstances of this case. They could not also contend that the plan could not have been sanctioned on the date when the matter was finalized. They could not also contend that the plan could not have been sanctioned on the date when the matter was finalized. In any event, the Municipal Authorities cannot back out or turn round after taking the free gift of a piece of land and when the respondent writ petitioner has duly complied with all the requisitions that were required be made and all the formalities that would be required to be performed. The Municipal Authority, in our view, is bound to act fairly and properly. The Municipal Authority cannot, in order to make the provisions of the amended Act effected, sit over the matter by not issuing the formal sanction of the plan, when sanctioning process had been finalised and completed for all practical purposes. The statutory authorities are bound to discharge its duties in accordance with the Statute and cannot be allowed to delay proceeding on some plea or other contrary to public interest. When the Municipal Authority is charged with the duty to perform and even if no period of limitation is prescribed, the statutory authorities are bound to take steps expeditiously and that within a reasonable time. They are not authorised to sit over the matter and delay the process with same oblique purpose. Accordingly, we fully agree with the view expressed by the learned Trial Judge and we do not find any reason whatsoever to interfere with the order passed by the learned Trial Judge and there is no substance in this appeal. Accordingly, the appeal is dismissed without any order as in costs. On the prayer made on behalf of the appellant, there shall be stay of the operation of the order for a period of three weeks from to day. N. A. Chowdhury, J.-I agree. Appeal dismissed.