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2014 DIGILAW 1004 (CAL)

Bimal Kumar Sarkar v. State of West Bengal

2014-11-03

ARIJIT BANERJEE, MANJULA CHELLUR

body2014
JUDGMENT 1. The appellant is the unsuccessful writ petitioner before the learned single Judge who approached the learned single Judge seeking following reliefs in the writ petition. (a) Declarations do issue that the revised building plan/site plan No. A681 dated 11.06.2013 has been deemed to be sanctioned by operation of Section 278 of the West Bengal Municipal Corporation Act, 2006. (b) A writ of or in the nature of Certiorari commanding the respondents and/or their servants and/or their employees and/or their agents to certify and transmit to this Hon'ble Court the records of the case, including the notice dated 07.08.2014 being P-6 herein, so that conscionable justice may be administered by quashing the same. (c) Writ in the nature of mandamus do issue, directing the respondents Corporation and their agents, employees and assigns to act in accordance with the provisions of law and not to initiate any proceeding for non-sanction of the building plan, and without complying the due process as laid down in the West Bengal Municipal Corporation Act, 2006. (d) Any other appropriate writ or writs, order or orders, direction or directions. (e) Rule NISI in terms of prayer (a), (b) (c) and (d) above. (f) An order do issue restraining the respondents and particularly the respondent Nos. 3 and 6 from acting in any manner pursuant to the notice dated 07.08.20014 being annexure P-6 herein or from initiating any demolition proceedings without the due process of law until the disposal of the instant writ petition. (g) Ad-interim order in terms of prayer (f) above. (h) Costs of and incidental to this application. (i) Such other or further order or orders, direction or directions as to this Hon'ble Court may deem fit and proper. 2. It is not in dispute that the petitioner approached the Court seeking benefit of the provisions of Sections 278 and 279 of the West Bengal Municipal Corporation Act, 2006 contending that there is deemed sanction of revised site plan submitted by the petitioner to the Siliguri Municipal Corporation so far as premises No. 44, Sarat Bose Road, Hakim Para, Siliguri 734 001. The facts led to filing of the present appeal are as under: According to the appellant/writ petitioner, there was old building existing right from 1999 having four-storey building in the site in question. The facts led to filing of the present appeal are as under: According to the appellant/writ petitioner, there was old building existing right from 1999 having four-storey building in the site in question. He further claims, when the respondent Municipality pointed out certain unauthorised construction he informed the respondent authority and demolished the unauthorised portions way back in 2011. He further contends, he submitted a revised site plan along with building plan in order to put up additional construction to the existing building. When they did not proceed to take any action on the application, according to him, he had the benefit of Sections 278 and 279. In order to substantiate his contention, he also refers to the format in which the application has to be given and according to him, it only refers to site plan and not a building plan. Therefore, he has submitted a revised site plan which according to him includes building plan also. 3. In response to this, learned counsel for respondent authority brings to our notice revised rules and contends that so far as deemed provision under Section 278 of the West Bengal Municipal Corporation Act, 2006 it refers to only building plan and not site plan. She also brought to our notice the requirement of clearance of a site plan even for additional construction only in order to see that the site upon which additional construction proposed to be put up in addition to the existing construction was suitable in every respect as contemplated under the procedure to have the additional construction. She has taken us through Section 259 of the West Bengal Municipal Corporation Act and Rules 3, 4 and 5 of the West Bengal Municipal (Building) Rules, 2007 which refers to revised provisions as well. Section 259 reads as under: "259. Definitions - (1) In this chapter, unless the context otherwise requires, the expression to erect a building means : (a) To erect a new building on any site, whether previously built upon or not. (b) To re-erect : (i) Any building of which are than one-half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed. (ii) Any building of which more than one-half of the superficial area of the external wall above the level of plinth has been pulled own. (b) To re-erect : (i) Any building of which are than one-half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed. (ii) Any building of which more than one-half of the superficial area of the external wall above the level of plinth has been pulled own. (iii) Any frame-building of which more than half of the number of posts or beams in the external walls have been pulled down. (c) To convert into a dwelling-house any building or any part of a building not originally constructed for human habitation or if originally constructed for human habitation, subsequently appropriated for any other purpose. (d) To convert into more than one dwelling-house a building originally constructed as one dwelling-house only. (e) To concert into a place of religious worship or a sacred building any place or building not originally constructed for such purpose. (f) To roof or cover an open space between walls or buildings to the extent of the structure formed by the roofing or covering of such space. (g) To concert two or more tenements in a building into a greater or lesser number of such tenements. (h) To concert into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such, or to concert any building constructed for such purpose by sub-division or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages. (i) To convert a building, which, when originally constructed, was legally exempt from the operation of any building regulation contained in this Act or the Rules or the regulations made under this Act or contained in any other law for the time being in force, into a building which, had it been originally erected in its converted form, would, have been subject to such building regulations. (j) To convert into, or to use as dwelling- house, any building which has been discontinued as, or appropriated for any purpose other than, a dwelling-house. (k) To make any addition to a building. (l) To close or open permanently any door or window in any external wall. (m) To remove or reconstruct the principal staircase or to alter its position." 4. On going through Section 259, the expression 'erect a building' includes to make any addition to a building. (k) To make any addition to a building. (l) To close or open permanently any door or window in any external wall. (m) To remove or reconstruct the principal staircase or to alter its position." 4. On going through Section 259, the expression 'erect a building' includes to make any addition to a building. According to the learned counsel for the respondent authority, therefore even for additional construction to the existing construction it has to fall within the expression to 'erect a building' which in turn requires the applicant and the authorities to look to the compliance of other provisions in order to have additional construction. Rule 3, Part II of rules reads as under:- "3. Criteria of using a piece of land as a building site : (1) No piece of land shall be used as a site for the erection, re-erection, addition to, or alteration of, any building except in accordance with the provisions of the Act and these rules. (2) If any question arises as to what, for the purposes of the Act, shall be deemed to be the site for erection, re-erection, addition to or alteration of, any building, the Municipal Authority shall determine the same and his decision shall be final. (3) No piece of land shall be used as a building site in Municipality unless the Board of Councillors is satisfied that : (a) Land record is in conformity with the proposed construction. (b) The level of the land is not lower than the level of the crown of the nearest public street. (c) The land is capable of being well drained by means of drainage facilities leading to existing public drains or drainage channels. (d) The soil of the building site is likely to sustain the construction of a building thereon. (e) Where the site is within 5.00 metres of any side of a tank, the owner will take such measures as shall prevent any risk of drainage from such building passing into the tank. (d) The soil of the building site is likely to sustain the construction of a building thereon. (e) Where the site is within 5.00 metres of any side of a tank, the owner will take such measures as shall prevent any risk of drainage from such building passing into the tank. (4) No piece of land in the municipal area, located in a sinking zone or central business area, as determined by the Board of Councillors, shall be used as a building site without prior approval of the State Government: Provided that for construction of any building on any building on any piece of land in the municipal areas of the hill areas, prior testing of soil by a Government recognised testing organisation, in respect of land shall be made. (5) No piece of land where a closed, sick or other industry was located or is in operation, shall be used as a site for construction of any building, other than an industrial building, without the prior approval of the competent authority appointed under clause (d) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976). (6) The site shall about on a street or projected street and there shall be access from any such street by any passage appertaining to such site. (7) If in the opinion of the Municipal Authority it would be unsafe to construct a building on any piece of land, the Municipal Authority may prohibit any construction thereto. 5. Reading of Rule 3, Part II of the Building Rules, it clearly indicates, how a piece of land could be used as a building site. Sub-rule (3) clearly indicates what the Municipal Authority has to do with reference to clearance of a building site before approving the site plan that is whether the land record is in conformity with the proposed construction, whether the level of the land with reference to public street, facilities of drainage leading to public drains or drainage channels, nature of the soil upon which the proposed construction to be put up and also to see whether any tank is in near vicinity as required under the sub-rule (3). 6. Rule 4 refers to plan for approval of building site and permission to construction and reconstruction of building other than huts. 6. Rule 4 refers to plan for approval of building site and permission to construction and reconstruction of building other than huts. This clearly indicates within what measurement of site, how much construction is to be permitted and other relevant or incidental procedure for the same. 7. Rule 5 is relevant so far as the argument of the appellant is concerned which reads as under: "5. Further information required to be submitted by applicant. Within fifteen working days from the date of receipt of an application for approval of building site, the Municipal authority may require the applicant : (a) To furnish him with any information on matters referred to in these rules which has not already been given in the documents thereunder. (b) To satisfy him that there are no objections which may lawfully be taken to the approval of the site." Rule 6 & 7 read as under: "6. Incomplete or defective information - (1) If any information or document required under these rules is, in the opinion of the Board of Councillors, incomplete or defective, he may, within fifteen working days from the date of receipt of the same, require further information or documents to be furnished. (2) If any requisition made under these rules is not complied with within one month, the application for approval of the building-site may be refused. 7. Signature on approved site plan. When the competent authority has approved any site plan, the approved plan or plans shall be signed by such officer as may be authorised in its behalf and in such manner as may be directed and two copies of approved site plan will be returned to the applicant." 8. After going through Rules 6 and 7, it is very clear that the respondent authority was justified in contending that unless the site plan is approved even if in respect of an additional construction to the existing construction that is clearance of the site plan prior to approving the building plan, no construction will be permitted. 9. After reading Section 5, it is clear that fifteen working days referred to therein is with reference to the application in respect of approval of a building site and not building plan. In other words, the building site in this Rule clearly indicates, it is site plan and not the building plan. 9. After reading Section 5, it is clear that fifteen working days referred to therein is with reference to the application in respect of approval of a building site and not building plan. In other words, the building site in this Rule clearly indicates, it is site plan and not the building plan. This is substantiated by Rules 6 and 7 which contemplates that the application has to be submitted with reference to site plan. 10. In that view of the matter, we are of the opinion the deemed provision under Section 278 of the Act of 2006 so far as the building plan could be invoked but the same cannot be invoked unless the other formalities are completed. In other words, unless the application of building plan is in the required format that is either along with the site plan approved or along with the site plan for approval, there cannot be any deemed provision. It also says unless all other requirements are complied with under the Act, the deemed provision will not be of any assistance to the applicant though the provision allows a builder simultaneously to submit site plan and also the building plan. The procedure thus contemplates unless site plan is approved even if building plan could be approved or has deemed approval, it cannot have any authenticity. 11. In the light of our observations, we are of the opinion that the learned Judge was justified in directing the respondent authority to consider the application by considering the same as site plan. The builder has apparently submitted the plan along with the site plan therefore, the respondent authority can decide the fate of the site plan first and then intimate the same to the owner who is at liberty to submit building plan depending upon the consideration of site plan application. 12. The appeal is disposed of along with the application without any order as to costs. 13. Urgent certified copy of this order, if applied for, be given to the parties, on priority basis. Order accordingly.