Judgment Pratap Kumar Ray, J. Assailing the order dated 26th July, 2012 passed by the learned trial Judge in W.P. 8768(W) of 2011, this appeal has been preferred. 2. A very short question is involved about interpretation of sub-rule (3) of Rule 27 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004. Learned trial Judge dismissed the writ application on the ground that the Pradhan of the concerned Gram Panchayat refused to sanction the building plan. In view of the very tenor of the judgment under appeal, we are of the view that the appeal can be taken up for final hearing along with the application for stay. 3. Service of notice of appeal and all other formalities stand dispensed with. 4. The issue cropped up in respect of sanction of a building plan. Admittedly the writ petitioner-appellant filed an application for sanction of a building plan under Section 23 of the West Bengal Panchayat Act, 1973 read with sub-rule 1 of Rule 27 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (hereinafter for brevity referred to as ‘the said Act’ and ‘the said Rules’ respectively). An enquiry was made with reference to the application praying for sanction of a building plan. It is the case of the appellant-petitioner that no communication was made refusing sanction of building plan. Learned trial Judge called for a report from Pradhan of the concerned Gram Panchayat. He filed a report contending inter alia, that application was enquired into by the competent officer who found many defects which were endorsed in the back of the report. To cure defect the writ petitioner-appellant was asked to appear but he did not. 5. Be that as it may, learned counsel for the respondent-Pradhan submits that under Rule 27 sub-rule (3) the issue was decided and as the applicant of the building plan did not submit modified proposal in terms of the said rule, no relief could be granted. 6. It is further submitted that the decision of refusal was communicated and in this connection reliance has been made to page ‘14’ of the stay application. 7. Section 23 of the said Act mandates that without previous permission in writing by the Gram Panchayat no person should be allowed to erect any new structure or new building.
6. It is further submitted that the decision of refusal was communicated and in this connection reliance has been made to page ‘14’ of the stay application. 7. Section 23 of the said Act mandates that without previous permission in writing by the Gram Panchayat no person should be allowed to erect any new structure or new building. Hence under Section 23 of the said Act Pradhan is not the Authority to sanction building plan and to reject any application seeking sanction of building plan, but it is Gram Panchayat a body corporate, by majority decision is required to do that. 8. In the instant case admittedly Gram Panchayat did not communicate any decision. But Pradhan of the concerned Gram Panchayat asked the appellant to attend Panchayat office. Under the statutory provision of said Act, Pradhan has no action to play so far as sanction of building plan is concerned. As such the action of the Pradhan itself even refusing to sanction building plan on certain grounds communication of which disputed, in the eye of law cannot be a valid order passed by Gram Panchayat. 9. Under Rule 27 of the said Rules detail procedural steps prescribed on the point how the application to be dealt with. Therein under sub-rule (2) Gram Panchayat is the authority to sanction building plan and when Gram Panchayat refuses permission under sub-rule (1) of Rule 27, sub-rule (3) will come into play. Rule 27 of the said Rules reads as under: “27. Manner of processing of an application :-(1) On presentation of an application under sub-rule (1) of rule 17, the Pradhan or the Upa-Pradhan or any other member authorized by the Gram Panchayat in this behalf, shall examine the right, title and interest of the applicant in respect of the land on which the structure or the building is proposed to be erected along with the building plan and the site plan, and after such enquiry as may be considered necessary, shall within a period of thirty days from the date of receipt of the application, place it before the Gram Panchayat for granting or, as the case may be, refusing permission for the erection or construction applied for.
(1A) A Gram Panchayat shall not accord permission to the construction of a new structure or building or to make addition or alteration to an existing structure or building having a plinth area of more than 150 square meters with brick or concrete footing or a height of more than 6.5 meter without vetting of the building plan and the site plan by the Panchayat Samiti or the Zilla Parishad having jurisdiction : Provided that an application for construction of a new structure or building or making an addition or alteration of the existing structure or building having a plinth area of more than 150 square meters but less than 300 square metes with brick or concrete footing or a height not more than 6.5 meter shall be sent with all documents to the Panchayat Samiti and for construction beyond that plinth area or height or both, the application shall be sent to the Zilla Parishad by the Gram Panchayat for vetting . Provided further that the applications, which are required to be vetted by the Panchayat Samiti or the Zilla Parishad, shall be sent by the Gram Panchayat within a period of thirty days from the date of such receipt to the Panchayat Samiti or Zilla Parishad as the case may be and shall be returned by the appropriate body with its vetting or objections as the case may be, to the Gram Panchayat within a period of thirty days from the date of its receipt for further action under sub-rule (2). Explanation . – For the purpose of this rule a structure or building includes a tower, godown and underground floor or storage. (2) A Gram Panchayat shall, when granting permission under sub-rule (1) specify a reasonable period within which the structure or the building is to be completed and if the erection or construction is not completed within the period so specified, it shall not be continued thereafter without allowing an extension of such period. The Gram Panchayat may, if it considers necessary, in view of the changed circumstances, require a modification of the building plan for reasons to be recorded in writing in case of delay in completion of the work.
The Gram Panchayat may, if it considers necessary, in view of the changed circumstances, require a modification of the building plan for reasons to be recorded in writing in case of delay in completion of the work. (3) When a Gram Panchayat refuses permission under sub-rule (1), - (i) the applicant shall be given an opportunity of being heard; (ii) the grounds for refusal, shall be recorded in writing and communicated to the applicant; (iii) The applicant may be allowed to submit modified proposal removing the grounds for refusal in a fresh application form or in a plain paper, as may be appropriate, with two copies of the modified building plan and other records as may be relevant, within a period of one year from the date of communication of such refusal; such proposal shall not be taken as a new proposal and the applicant shall not be required to deposit any fee as referred to in rule 34. (4) As soon as may be, after the Gram Panchayat grants or refuses permission under sub-rule (1), the Pradhan or the Upa-Pradhan or the person authorised in this behalf shall communicate in writing to the applicant of the permission granted for the construction sought for or the refusal in this behalf, as the case may be. In case of permission, one approved copy of the building plan and of the site plan shall be returned to the applicant, and the date within which the erection or construction is to be completed, shall be communicated. The applicant shall be informed of the grounds of refusal and further actions that may be taken by him in this regard. (5) Subject to the provision of rule 28 and rule 29, the Gram Panchayat shall communicate, under sub-rule (2), to the applicant within a period of sixty days from the date of receipt of the application under sub-rule (1) of rule 17 and the Gram Panchayat shall also maintain a register for this purpose in Form 12. 10.
(5) Subject to the provision of rule 28 and rule 29, the Gram Panchayat shall communicate, under sub-rule (2), to the applicant within a period of sixty days from the date of receipt of the application under sub-rule (1) of rule 17 and the Gram Panchayat shall also maintain a register for this purpose in Form 12. 10. On a bare reading of the said Rules, it appears that once the proposal for building plan is submitted, after making enquiry, the Gram Panchayat who is the authority to accord necessary permission for erection of the structure or construction of the building may take decision and in the event of refusal to sanction plan on certain grounds, it requires a communication to the applicant for the purpose of hearing him so that he can modify the proposal. 11. In the instant case Gram Panchayat has not communicated the reason to refuse sanction. From the letter (Annexure P-1 at page 14 to the stay petition) which has been relied upon by the respondent-Pradhan that said Pradhan on 7th June, 2010 duly intimated that proper decision was taken by the Gram Panchayat and aplicant was asked to meet the Pradhan. 12. As already discussed so far as the permission/sanction of a building plan, it is not within the jurisdictional action of Pradhan. As such there was no need to meet Pradhan at all. It is the Gram Panchayat who has the power to refuse any application seeking sanction of building plan and it is the Gram Panchayat only by taking a resolution to that effect identifying the defects thereto if any, will proceed under Rule 27 sub rule (3) of the said Rules as quoted above. It is a settled legal position of law that statutory body must act within the framework of the statute and cannot travel beyond the statute. One individual can do all things save and except those, which are prohibited under the law, whereas the Statutory Body only can do anything as are prescribed within the jurisdictional parameters or control of the concerned statute.
One individual can do all things save and except those, which are prohibited under the law, whereas the Statutory Body only can do anything as are prescribed within the jurisdictional parameters or control of the concerned statute. Reliance is placed to the judgments passed in the cases Maniruddin Bepari vs. The Chairman of the Municipal Commissioners, Dacca, reported in 40 CWN 17, K. Ramadas Shenoy vs. Chief Officers, Town Municipal Council, Udipi, reported in (1974) 2 SCC 506 , Bhavnagar University vs. Palitana Sugar Mill Private Limited, reported in (2003) 2 SCC 111 , Ramchandra Keshav Adke vs. Govind Joti Chavare, reported in (1975) 1 SCC 559 , J.N. Ganatra vs. Morvi Muncipality, Morvi, reported in (1996) 9 SCC 495 , Meera Sahni vs. Lt. Governor of Delhi, reported in (2008) 9 SCC 177 , Union of India vs. International Trading Company, reported in (2003) 5 SCC 437 and Ramdeen Mayurya vs. State of UP, reported in (2009) 6 SCC 735 . In all those cases the principle as formulated and settled by the Court of Chancery Division in the case Taylor vs. Taylor, reported in (1875) 1 Ch. D. 426, which subsequently followed by the Privy Council in the case Nazir Ahmed vs. King Emperor, reported in 1936 Privy Council 253. In the book of Statutory Interpretation by Crawford, wherein at page 334, this principle has been discussed under the heading “Express Mention and Implied Exclusion (Expressio Unius Est Exclusio Alterius”, which reads such: “Express Mention and Implied Exclusion (Expressio Unius Est Exclusio Alterius.-……………………if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect. ………………….if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited.” 13. Having regard to the aforesaid legal position as in the instant case Gram Panchayat has not communicated any resolution refusing to accord permission, we are of the view that impugned letter of Pradhan dated 7th June, 2010 has no legal value and in the eye of law it would be deemed that Gram Panchayat has not considered the application as yet.
Though under Rule 30 there is a deeming clause that in the event of non-taking any action within 30 days from the date of receipt of application, it will be lawful on behalf of the concerned applicant, to construct the building, but we are not inclined to pass a declaration to that effect in terms of Rule 30 for the reason that the Panchayat Authority practically has misdirected themselves to interpret the particular provision of the said Rule as referred above and as such Pradhan without considering law was overzealous on the issue and took decision to invite the writ petitioner to meet him. Rule 30 reads as under: 30. Right of application if the permission or refusal is not communicated within time-limit. – If permission or refusal under sub rule (5) of rule 27, rule 28 or rule 29 as the case may be, is not communicated by the Gram Panchayat within the prescribed time limit it shall be presumed that the Gram Panchayat has accorded such permission and it shall be lawful for the applicant to erect any structure or building conforming to the building plan and the site plan furnished by him along with the application. 14. Considering that aspect of the matter we are allowing the writ application by quashing letter of Pradhan dated 7th of June, 2010 and the appeal by quashing the impugned judgment and order under appeal and directing the Gram Panchayat, Uttar Jhapordah Gram Panchayat, to take a decision relating to the application seeking permission to construct a building/new structure as filed by the writ petitioner-appellant on 1st June, 2010 in accordance with law and in the event no communication is made within the prescribed time limit from this date, sub-rule (5) of Rule 27, Rule 30 will be applicable and writ petitioner-appellant will be entitled to construct building following building rule. 15. The writ application and the appeal thus stand allowed. 16. The application for stay stands disposed of. 17. Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.