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1995 DIGILAW 76 (CAL)

CALCUTTA MUNICIPAL CORPORATION v. AMANULLA HALDER

1995-03-01

BASUDEVA PANIGRAHI, BHAGABATI PRASAD BANERJEE

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B. PANIGRAHI, J. ( 1 ) THIS appeal is preferred by the Calcutta Municipal Corporation against the judgment of a single Bench of this Court allowing the writ application of the opposite party whereunder the Deputy Architect, Calcutta Municipal Corporation, Zone (IV) was directed to consider the petitioner's application for renewal of the sanction of his building plan. ( 2 ) THE respondent writ petitioner has, inter alia, pleaded that he submitted a plan for sanction of a new building construction on the premises No. T-15, Akra Road, Calcutta-700018, hereinafter referred to as the 'said premises'. The plan was submitted by the writ petitioner on or about December, 1985 in the office of the appellant Corporation in their Garden Reach Unit Office. The Corporation after due verification by their subordinate Officer sanctioned the plan on or about 1st April 1986 the copy of which has been annexed to the writ petition with a letter marked 'a'. While the writ petitioner was about to proceed with the construction there was a boundary dispute between him and a contiguous owner on the East, Shah Alam Halder for which the progress of the work was substantially thwarted. Therefore, the writ petitioner had approached this Court in another writ the Court appointed a special officer to demarcate the boundary. ( 3 ) THE construction work of the proposed building hindered on account of the writ application. The writ petitioner again seems to have sent another letter for extension of the period of approval. He was also under the impression that the building plan shall remain valid or two years from the date of its sanction. The writ petitioner again sent a reminder on 20th July 1988 even then, it did not evoke any response from the appellant. ( 4 ) IT is claimed by the appellant that it deputed one of its Assistant Engineers for spot varification and it was found that the boundary shown in the sanction plan, in fact, did not tally. But the writ petitioner, however, has reputed such plea. ( 5 ) ALTHOUGH on varification the boundary shown in the plan tallied at the corporation however, denied to allow extension of time for construction. A single Judge of this Court, in the aforementioned case of the appellant consider the prayer of the writ petitioner in accordance with law, after giving proper opportunity of hearing. ( 5 ) ALTHOUGH on varification the boundary shown in the plan tallied at the corporation however, denied to allow extension of time for construction. A single Judge of this Court, in the aforementioned case of the appellant consider the prayer of the writ petitioner in accordance with law, after giving proper opportunity of hearing. Even, when such order did not evoke any response from the appellant side, the writ petitioner was obliged to take out notice of contempt of Court against the appellant, where upon the deputy Architect Zone (IV) Municipal Corporation had sent notice of hearing to the petitioner. ( 6 ) THE Deputy City Architect without application of mind rejected the petitioner's prayer for sanction of the original plan on the ground that it even lapsed assuming that the deemed extension period is applicable. Therefore, such application could not be considered after a lapse of 4 years. According to him the original plan having submitted on 1. 4. 1986, the maximum validity period would be only up to 31st March, 1990 as per the provision then applicable. In such event, the Deputy City Architect was of the view that no sanction could be granted on the application filed by the petitioner. It is further mentioned that the boundary dispute between the writ petitioner and his neighbour was still subsisting and until the same is subsided, the Municipal Corporation cannot accord permission to the petitioner. With these ground he rejected the prayer. ( 7 ) THE petitioner, after all his attempts to renew his sanctioned plan having been failed, filed the present writ petition. ( 8 ) ON behalf of the appellant Mr. Ghosh, the learned counsel vehemently argued that as per the provision of section 635 (2) (g) of the Calcutta Municipal Corporation Act, 1980 which was inserted in the parent Act by the Calcutta Municipal Corporation (Amendment Act 1984) the writ petitioner should apply for sanction of his building plan. It is further argued that all matters relating to the sanction of building plans in the erstwhile. Municipal areas of Jadavpur, South Suburban and Garden Reach Municipalities, continued to be governed by the provisions of the Bengal Municipal Act, 1932, as it was in force in those areas before coming into force of the Calcutta Municipal Corporation (Amendment) Act, 1983, until corresponding Building Rules were framed under the 1980 Act. Municipal areas of Jadavpur, South Suburban and Garden Reach Municipalities, continued to be governed by the provisions of the Bengal Municipal Act, 1932, as it was in force in those areas before coming into force of the Calcutta Municipal Corporation (Amendment) Act, 1983, until corresponding Building Rules were framed under the 1980 Act. The petitioner's plan could not be renewed as the total period of validity of the plan under the Bengal Municipal Act, 1932 was only four years. ( 9 ) MR. Kar, appearing on behalf of the writ petitioner, indicated before us that clause (g) of Sub-section (2) of section 635 of the Calcutta Municipal Corporation Act, 1980 was omitted from the Act by the Calcutta Municipal Corporation Act (Amendment Act 1988) with effect from 20th February, 1989. ( 10 ) ANOTHER interesting question has been raised by the appellant that despite such omission, since no alternative provisions had been made, the provisions of the Bengal Municipal Act, 1932 shall hold the filed. In support of this contention much reliance has been placed on the provision of section 6 (c) of the General Clauses Act, 1897. ( 11 ) IN this connection we may rely on decision reported in J. T. 1994 (7) SC 270 in the case of Calcutta Municipal Corporation and Anr. v. Sri Anti Ratan Banerjee and Ors. , the apex Court in the aforementioned case held that after omission of the provision of section 635 (ii) (g) of the Bengal Municipal Act and the rules made thereunder ceased to apply to the newly added areas under the Corporation. ( 12 ) THE piquant situation arises to whether notwithstanding the omission of the provision of Clause (g) of sub-section (2) of section 635 of the Calcutta Municipal Corporation Act, 1980 the provisions of Bengal Municipal Act, 1932 will be applicable relating to the sanction of the building plan. ( 13 ) MR. Kar, the learned counsel appearing for the writ petitioner respondent highlighted in course of hearing that it cannot be argued by the appellant that the provisions of Bengal Municipal Act, 1932 could be still attracted even after the provision of the section 635 sub-section (2) (g) has been repealed from the statute book. At the first blush, the submission of Mr. Ghosh seems to be attractive but on a close scrutiny it appears to be devoid of merit. At the first blush, the submission of Mr. Ghosh seems to be attractive but on a close scrutiny it appears to be devoid of merit. The new Building Rules issued on the Calcutta Municipal Act, 1980 came into force on and from 12th December, 1990. The provisions of the new Building Rules appear to be most stringent. On and from February 20th 1989 the Bengal Municipal Act and the Rules made thereunder ceased to apply to the newly added areas by Virtue of an amendment to the Calcutta Municipal Corporation Act, 1980. The 1980 Act was extended to the said newly added areas with effect from the said date. From that date Clause (g) of section 635 (ii) has been deleted and the Building Rules of 1990 have come into force. Therefore, in our opinion if any building plan that requires to be approved by the Municipality should be considered in conformity with the building Rules. Now next question arises how far the Deputy Architect, Municipal Corporation was justified in refusing the renewal application. The order of the Deputy City Architect had been annexed to the writ petition. The learned writ Court has however, gone in detail about the illegality of the Deputy City Architect's order. The refusal to accord the building plan was based on impertinent and improper grounds. Therefore, in our view, the learned writ Court has rightly quashed annexure 'g' to the writ petition i. e. the order of the Deputy City Architect, Calcutta Municipal Corporation, Zone (IV) dated 19th June, 1992. Since the application has been submitted by the writ petitioner requires reconsideration by the appellant, we direct the Calcutta Municipal Corporation to consider the application within two months under the provision of Calcutta Municipal Act, 1980 read with the Building Rules issued thereunder. ( 14 ) IT is however, made clear that if the writ petitioner is required to make minor alteration in the sanction building plan to bring it in conformity with the provision of the building rules, the Municipal Authority shall permit the petitioner to do so. In view of our aforementioned findings we hold there is no merit in this appeal and, thus dismissed but there would be no order as to costs. B. P. Banerjee. J.- I agree appeal dismissed.