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Bangalore Development Authority Vs. Unique Enterprises - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberR.F.A. No. 226 of 1984
Judge
Reported inILR1984KAR1289
ActsKarnataka Town and Country Planning Act, 1961 - Sections 14, 14(3), 15(1), 15(2) and 15(3); Karnataka Town and Country Planning Rules - Rule 14(3)
AppellantBangalore Development Authority
RespondentUnique Enterprises
Appellant AdvocateShivaraj Patil, Adv.
Respondent AdvocateA.M. Farooq, Adv.
DispositionAppeal dismissed
Excerpt:
karnataka town and country planning act, 1961 (karnataka act no. 11 of 1963) -- section 15 (1) and (2) -- issue of acknowledgment for receipt of application under section 14 is statutory duty of planning authority -- failure to obtain acknowledgment not breach of any statutory provision by applicant -- acknowledgment is a piece of evidence for calculation of statutory period of 3 months -- date of application open to proof otherwise than by production of written acknowledgment -- deemed certificate not in writing but deemed to be granted by fiction of law -- to decide entitiement to deemed certificate, central factor is not action but inaction of planning authority -- establishing compliance with rule 14 (3) does not arise -- when grant of permission is deemed, it must.....narayana rai kudoor, j.1.this regular first appeal is by the defendant in o.s. no.681/1984 on the file of the viii additional city civil judge, bangalore, directed against the decree dated 19-4-1984 decreeing the suit brought by the plaintiff for a declaration that the plaintiff has the benefit of the deemed commencement certificate/change in land use certificate from public and semi-public use to commercial use in respect of the plaint schedule property and also for a permanent injunction restraining the defendant, its officers, workmen, or anyone claiming under it from enforcing the endorsement dated 25/31-5-1982 issued by the defendant calling upon the plaintiff to pay a sum of rs. 5 lakhs by way of penalty.2. the case of the plaintiff as set out in the plaint, briefly stated, is as.....
Judgment:

Narayana Rai Kudoor, J.

1.This Regular First Appeal is by the defendant in O.S. No.681/1984 on the file of the VIII Additional City Civil Judge, Bangalore, directed against the Decree dated 19-4-1984 decreeing the suit brought by the plaintiff for a declaration that the plaintiff has the benefit of the deemed commencement certificate/change in land use certificate from public and semi-public use to commercial use in respect of the plaint schedule property and also for a permanent injunction restraining the defendant, its officers, workmen, or anyone claiming under it from enforcing the endorsement dated 25/31-5-1982 issued by the defendant calling upon the plaintiff to pay a sum of Rs. 5 lakhs by way of penalty.

2. The case of the plaintiff as set out in the plaint, briefly stated, is as follows :

The plaintiff, a partnership concern, became the owner of the suit schedule property having purchased the same from its previous owner under a registered sale deed dated 5-3-1980. The vendor of the plaintiff had proposed to put up certain constructions for commercial purpose on the suit schedule property. In that connection, he had obtained a licence and sanctioned plan from the Bangalore City Corporation (hereinafter referred to as the 'Corporation'). The plaintiff, during the course of the construction of the building in accordance with the licence and the sanctioned plan obtained by its vendor from the Corporation, wanted to modify the plan and pursuant to which the plaintiff submitted modified plans to the Corporation for sanction. Despite the earlier sanction for commercial purpose, the Corporation issued endorsements dated 20-12-1982 and 22-1-1983 directing the plaintiff to produce commencement certificate/change in land use certificate from public and semi-public use to commercial use from the defendant. Any change in the land use can be allowed by the defendant on an application under Section 14(2) of the Karnataka Town and Country Planning Act, 1961 (for short the 'Act'). The plaintiff had in fact applied to the defendant through its application/dated 16-2-1981 seeking commencement certificate/change in land use certificate under the Act. The defendant is statutorily obliged to grant or refuse such certificate within three months from the date of receipt of such application. The defendant, inspite of receipt of the plaintiff's application dated 16-2-1981, has not issued any endorsement either granting or refusing the commencementcertificate change in land use certificate within the statutory period of three months. As no such decision was communicated to the plaintiff within the statutory period of three months from the date of the plaintiff's application, the plaintiff has deemed certificate for change in the land use/commencement certificate in view of the mandatory provisions contained in Section 15(2) of the Act. Thus the plaintiff has deemed certificate for change in the land use/commencement certificate for putting up the commercial building in the plaint schedule property. In spite of the vested deemed certificate for change in the land use/commencement certificate the Corporation Authorities are refusing to act on the said basis and sanction the modified plan. They continued to insist that the plaintiff should produce an express commencement, certificate/change in the land use certificate from the defendant. The plantiff approached the defendant several times and sought for the commencement certificate. The defendant neither issued the commencement certificate nor rejected the application filed by the plaintiff. Instead, the defendant has issued an endorsement dated 25/31-5-1982 for the first time informing the plaintiff that the defendant-Authority has levied a penalty of Rs. 5 lakhs as a condition precedent for the grant of the commencement certificate/change in the land use certificate. The plaintiff sent a reply dated 26-7-1982 to the said endorsement. The defendant instead of recognising unequivocal position of law, has been trying to act contrary to the vested commencement certificate under the mandatory provisions of the Act. The acts of the defendant are highhanded, illegal and contrary to law. In view of the unassailable position of law as declared by this Court in the decision reported in 1931 (2) Kar. L.J. 5631 the defendant-Authority under the Act has no jurisdiction whatsoever to annul, modify or otherwise act after the deemed consent gets vested in the plaintiff by fiction of law, under the mandatory provisions of the Act. Since the defendant refused to recognise the vested deemed commencement certificate/change inland use certificate for putting up a commercial building by the plaintiff on the plaint schedule property and also in view of holding out threats for taking further action against the plaintiff ignoring the mandatory provisions of the law, the plaintiff brought the suit for necessary reliefs.

3. The defendant in its written statement has stated as follows :

The defendant is not aware that the plaintiff is the absolute owner in peaceful possession and enjoyment of1. Asst Commissioner and Competent Authority, Urban Land Ceiling v. IBM World Trade Corporation, I.L.R. Karnataka 1982 (1) Page 204plaint schedule property having purchased the same under a registered sale deed dated 5-3-1980, that the plaintiff's vendor wanted to put up some construction, that he applied for and got the sanctioned plan from the Corporation, that the plaintiff came to submit modified plan to the Corporation and that the Corporation issued endorsements as stated in the plaint. The plaintiff is put to strict proof of the same. It is not necessary to meet the averments made in the plaint regarding the relevant provisions of the Act. It is true that the plaintiff has submitted an application to the defendant on 16-2-1981 requesting for a land use certificate for submitting the same to the Corporation. In the said application, it is mentioned that the Corporation has sanctioned a plan for commercial building in respect of the suit schedule premises. The defendant is not aware that despite the alleged vested deemed certificate, the authorities of the Corporation are refusing to act upon the same. It is true that the defendant has issued on endorsement dated 31-9-1982 (obviously a mistake for the endorsement dated 25/31-5-1982) to the plaintiff after the subject was considered by the Board in its meeting dated 15-4-1983 (ought to be 1982) and later confirmed in the next meeting. It is false that the defendant is acting contrary to the mandatory provisions of the Act. The decision reported in 1981 (2) Kar. L.J. 5631 does notensure to the benefit of the plaintiff. The apprehension of the plaintiff averred in para 7 of the plaint is not well-founded. The defendant being a statutory body is not interested in prejudicing the rights of the plaintiff, if any, except in accordance with law. On these grounds, the defendant prayed for the dismissal of the suit.

4. Upon the pleadings, the Trial Court raised the following issues :

(1) Whether the plaintiff proves that it was in lawful possession of suit schedule property as on the date of the suit ?

(2)Whether the plaintiff proves that it is entitled to the relief of declaration sought for ?

(3)Whether the plaintiff proves that it is entitled for the decree for permanent injunction ?

(4)What decree or order ?

5.The plaintiff examined in support of its case one witness and got marked through him 13 documents Exhibits P.1 to P.13. No witness was examined nor any document was produced on behalf of the defendant.

6.On appreciating the evidence, both oral and documentary, the Trial Court recorded its findings on all the issues in favour of the plaintiff and decreed the suit on 19-4-1984. It is the correctness and legality of this decree that is sought to be assailed by the defendant in this appeal.

7.It is the case of the plaintiff that during the course of the construction of the building on the schedule property in accordance with the licence and the sanctioned plan obtained by its vendor from the Corporation, the plaintiff wanted to modify the plan and so submitted the modified plans to the Corporation for sanction. The plaintiff has also sent an application to the defendant dated 16-2-1981 exhibit P.9 requesting the defendant to issue a commencement certificate as required under Section 14 of the Act for the purpose of submitting the same to the Corporation. The Corporation declined to accord sanction to the modified plans submitted by the plaintiff unless the plaintiff produced a commencement certificate from the defendant for the change in land use from public and semi-public use to commercial use despite granting of the licence and sanctioning of the plan earlier for commercial purpose. Although the plaintiff has submitted the application dated 16-2-1981, the defendant did not communicate its decision to the plaintiff within three months of the receipt of the application. The only communication sent by the defendant was an endorsement dated 25/31-5-1982 Ex. P. 10 calling upon the plaintiff to pay the penalty amount of Rs. 5 lakhs within the time stated therein for taking further action which was long after the statutory period of 3 months. So the commencement certificate sought by the plaintiff was deemed to have been granted to the plaintiff under Section 15(2) of the Act.

8 . As against this, what the defendant has contended is found in paras 3 to 5 of the written statement read :

'(3) The averments in para 4 regarding the relevant provisions of law in Town and CountryPlanning Act need not be met. It is true that the plaintiff has submitted an application to this defendant on 16-2-1981 requesting a land use certificate for submitting the same to the City Corporation. In the application it is mentioned that Bangalore City Corporation has sanctioned a plan for commercial building in respect of premises No. 9/1 Cunningham Road, Bangalore.

(4) This defendant is not aware that despite the alleged vested deemed certificate, the Corporation Authorities are refusing to act upon the same.

(5) It is true that this defendant has issued an endorsement dated 31-9-1982 (sic) to the plaintiff after the subject was considered by the Board in its meeting dated 15-4-1983 (sic) and later confirmed in the next meeting. ''

9. What follows from the stand taken by the defendant in its written statement excerpted above is that the plaintiff has made an application to the defendant on 16-2-1981 requesting to grant a commencement certificate for submitting the same to the Corporation and in that application the plaintiff has mentioned that the Corporation had sanctioned a plan for putting up a commercial building on the schedule property. The defendant is not aware that despite the alleged vested deemed certificate, the Corporation Authorities were refusing to act upon the same. The defendant has issued an endorsement Ex. P. 10 to the plaintiff after the subject was considered by the Board in its meeting dated 15-4-1982 and later confirmed in the next meeting. The endorsement Ex.P.10 was one calling upon the plaintiff to pay a sum of Rs. 5 lakhs by way of penalty for taking further action on the application of the plaintiff for the grant of a commencement certificate. No communication was sent by the defendant to the plaintiff either granting or refusing the commencement certificate sought in the application Ex. P. 9 within three months from the date of receipt of the application.

10. Sri Shivaraj Patil, Learned Counsel for the defendant strenuously contended that it is not open to an applicant to claim the benefits of a deemed commencement certificate under Section 15(2) unless the applicant complies with the requirements of Section 14(3) in making the application forpermission under Section 14 and obtains a written acknowledgment from the Planning Authority stipulated in sub-section (1) of Section 15. In other words, his argument was that the applicant before claiming the benefit under Section 15(2) must establish independently that he has made a valid application for permission under Section 14 in due compliance with the requirements of sub-section (3) of Section 14 to the Planning Authority and that the Planning Authority had furnished a written acknowledgment of having received such an application as provided under sub-section (1) of Section 15. In the instant case, the plaintiff has failed miserably to prove these two basic requirements. On the other hand, the materials on record show otherwise. So he contended that the plaintiff could not claim a deemed commencement certificate in respect of the plaint schedule property.

11. As against this, Sri A.M. Farooq, Learned Counsel for the plaintiff vehemently contended that the question whether an applicant has made an application for permission in compliance with sub-section (3) of Section 14 and the Planning Authority has issued the written acknowledgement for the receipt of such application are all matters to be considered while the Planning Authority takes action under sub-section (1) of Section 15 on the application for permission made by the applicant. However, these questions according to Sri Farooq are outside the scope of sub-section (2) of Section 15 as it has to be presumed that every condition necessary for the grant of such permission must be deemed to have been fulfilled when permission is deemed to have been granted by the operation of sub-section(2) of Section 15. So he proceeded to argue that it was not incumbent upon the plaintiff to prove that all the conditions necessary for the grant of permission under Section 14 have been duly complied with in order to claim the benefit of a deemed commencement certificate under sub-section (2) of Section 15. Even otherwise, Sri Farooq further maintained that on the basis of the material available, in the case and the stand taken by the defendant, it must be held that the plaintiff has made the application for permission under Section 14 in due compliance with the provisions contained in sub-section (3) of Section 14 and the failure to produce the written acknowledgment from the Planning Authority for having received the application made by it would not disentitle it to claim the benefit of deemed commencement certificate under subsection (2) of Section 15. Sri Farooq placed strong reliance on the decision of this Court in Assistant Commissioner's case (1981 (2) Kar. L.J. 563)1.

12. In view of these rival contentions urged by the Learned Advocate appearing on either side, the sole question for consideration is whether the plaintiff could claim the benefit of deemed commencement certificate under Section 15(2) of the Act.

13. It is appropriate at this stage to advert to the relevant provisions of the Act for the proper understanding and appreciation of the point involved in the appeal.

Section 14 of the Act provides for the enforcement of the Outline Development Plan and the Regulations. Section 14 reads thus :

' 14 Enforcement of the Outline Development Plan and the Regulations : -

(1) On and from the date on which a declaration of intention to prepare an outline is published under sub-section (1) of Section 10 every land use; every change in land use and every development in the area covered by the plan shall conform to the provisions of this Act, the Outline Development Plan and the Regulations, as finally approved by the State Government under sub-section(3) of Section 13.

(2) No such change in land use or development as is referred to in sub-section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed.

(The explanation is omitted as it is not relevant for our purpose)

(3) Every application for permission under sub-section (2) shall be accompanied by a plan, drawn to scale showing the actual dimensions of the plot of land in respect of which permission is asked, the size of the building to be erected and the position of the building upon the plot and such other information as may be required in this behalf by the Planning Authority.

Section 15 deals with permission for development of building or land. The material portion of Section 15 reads :

'15. Permission for development of building or land : -

(1) On receipt of the application for permission under Section 14 the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate;

Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct.

(2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. '

(The rest of the Section is omitted as unnecessary).

14. A bare reading of the above provisions of the Act shows that on and from the date on which a declaration of intention to prepare an outline is published under subsection (1) of Section 10, every land use, every change in land use and every development in the area covered by the plan shall conform to the provisions of the Act, the Outline Development Plan and the regulations as finally approved by the State Government under sub-section (3) of Section 13 and any such change in the land use or development shall be made only with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed. Sub-section (3) of Section 14 provides for the mode of making an application for permission under subsection (2). It provides that the application for permission shall be accompanied by a plan drawn to scale showing the actual dimensions of the plot of land in respect of which permission is asked,the size of the building to be erected and the position of the building upon the plot and such other information as may be required by the Planning Authority. Section 15 provides that on receipt of the application for permission under Section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such enquiry as may be necessary either grant or refuse a commencement certificate and the granting of the commencement certificate will be subject to such general or special conditions as the State Government may by order made in that behalf. Subsection (2) lays down that if the Planning Authority does not communicate its decision to the applicant within three months from the date of receipt of the application, the certificate sought by the applicant in his application shall be deemed to have been granted to the applicant.

15. The Planning Authority on receipt of the application under Section 14 for permission, grant or refuse a commencement certificate after holding such enquiry as it may consider necessary. This is what Section 15(1) lays down. No doubt the application referred to in sub-section(1) is an application required to be made in accordance with the provisions contained in sub-section (3) of Section 14. Before granting or refusing a commencement certificate under sub-section (1) of Section 15, it is open to the Planning Authority tosceutinise the application and find out whether it is in conformity with the requirements of law. If the Planning Authority finds that it is not in conformity with the requirements of law certainly it is open to it to take such decision as it deems fit on such application. However, the time within which the Planning Authority should consider the application and take a decision whether to grant or refuse the commencement certificate and communicate its decision to the applicant is statutorily fixed as within three months from the date of receipt of the application. In order to make certain as to when the application under Section 14 was received by the Planning Authority, it is provided under sub-section (1) of Section 15 that the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt of the application.

16. Sub-section (2) of Section 15 comes into play where the Planning Authority does not communicate its decision to the applicant within three months from the date of receipt of the application. If no decision is taken or if a decision is taken, no communication of the decision is sent to the applicant within three months from the date of receipt of the application, then the provisions contained in sub-section(2) will hold the field and declare that the certificate sought by the applicant shall be deemed to have been granted to the applicant.

17. The language employed in sub-section (2) of Section 15 is plain and simple. It shows that all that is required to be shown under sub-section (2) is that the applicant has made an application for permission under Section 14 of the Act, that it was received by the Planning Authority on a definite date and that the Planning Authority failed to communicate its decision within three months from the date of receipt of the application. If these facts are established, then the fiction of law will come into play andensure to the benefit of the applicant that a commencement certificate as sought by him in his application shall be deemed to have been granted to the applicant The expression 'from the date of such acknowledgment' found in subsection (2) would mean nothing more than 'from the date of receipt of the application' for the purpose of computing the period of three months fixed statutorily for the Planning Authority to communicate its decision on the application made by the applicant. The deemed commencement certificate under sub-section (2) is not a written commencement certificate actually issued by the Planning Authority as required under sub-section (1) of Section 15 but it is a commencement certificate deemed to have been granted by the Planning Authority under the fiction of law. No enquiry is contemplated under sub-section (2) nor any positive action on the part of the Planning Authority as envisaged in sub-section (1) is necessary when permission is deemed to have been granted by the operation of sub-section (2) of Section 15. Inaction on the part of Planning Authority is the central factor in deciding whether the applicant is entitled for the benefit of the deemed commencement certificate under subsection (2). That being so, the question of the applicant establishing that the application made by him for permission under Section 14 was in due compliance with sub-section (3) of Section 14 really does not arise. Similarly it is not obligatory for the applicant to show that the Planning Authority has issued a written acknowledgment for receipt of the application for permission made by the applicant. No doubt it is the statutory duty of the Planning Authority to issue a written acknowledgment to the applicant on receipt of his application for permission as envisaged in sub-section (1) of Section 15. However, it seems to me that the importance of the written acknowledgment to be issued by the Planning Authority under sub-section (1) of Section 15 is for the purpose of finding out the date of receipt of the application by the Planning Authority as the Planning Authority is required to communicate its decision to the applicant within three months from the date of the receipt of the application. If the applicant is able to prove the date of receipt of his application by the Planning Authority, otherwise than by the written acknowledgment and further show that the Planning Authority has failed to communicate its decision within the statutory period from the date of the receipt of the application, still the applicant is entitled to the benefit of the deemed commencement certificate. However, all these questions do not arise for consideration while considering the question whether the permission prayed for is deemed to have been granted, because when permission is deemed to have been granted by the operation of sub-section (2) of Section 15, it must be presumed that every condition necessary for grant of such permission must be deemed to have been fulfilled.

18.This view I take gains support from the ruling of this Court in Commissioner's case. The facts of the case are these:

The first Petitioner made an application on 22-9-1977 under Section 27(2) of the Urban Land (Ceiling & Regulation) Act, 1976 seeking permission of the Competent Authority for transfer of the lands in favour of the second Petitioner. The Competent Authority did not refuse to grant permission nor did it communicate the refusal to the first Petitioner within 60 days. The Petitioners were communicated with an order made by the Competent Authority dated 24-11-1977 refusing permission. The Petitioners challenged the order in appeal. The Appellate Authority dismissed the appeal holding that the permission applied for must be deemed to have been granted by operation of Section 27(4), the same was ineffective on account of non-compliance of Section 5(3) and Section 10(4) of the said Act. Thereupon, the Petitioner presented a Writ Petition which was allowed by the Learned Single Judge who granted a declaration that the permission sought by the Petitioner shall be deemed to have been granted under Section 27(4). A further direction was issued in the nature of mandamus to the registeringauthority that if any deed of sale was presented in respect of the lands, the same should be registered. An appeal presented against the order of the Learned Single Judge came up for consideration in the aforesaid decision. A contention similar to the one advanced by Sri Shivraj Patil in this appeal was advanced before the Division Bench (of which I was a member) that the Petitioner was not entitled to the benefit of the deemed provision contained in sub-section (4) of Section 27 as he failed to show that they had complied with sub-section (3) of Section 5 and sub-section (4) of Section 10 of the Act. Dealing with the said argument, this Court observed in para-7(a) at page 568 as follows:

' It appears that the Learned Single Judge was persuaded to examine other questions because arguments were advanced before him that there being no compliance with sub-section (4) of Section 10 no permission could be granted under Section 27 of the Act. This argument was advanced on the basis of the language employed in sub-section (1) of Section 27, Sub-section (1) of Section 27 provide that notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of sub-section (3) of Section 5 and sub-section (4) of Section 10, no person shall transfer by way of sale etc., except with the previous permission in writing of the competent authority. When permission is deemed to have been granted by the operation to sub-section (4) of Section 27, it has to be presumed that every condition necessary for grant of such permission must be deemed to have been fulfilled. That being the position, the question as to whether conditions required to be satisfied far grant of permission were satisfied or not is not required to be gone into. As already stated, the only matter that required examination was whether the conditions specified in sub-section (4) of Section 27 were satisfied in order to come to the conclusion that the deemed permission was granted. Once we come to the conclusion that the conditions specified in sub-section (4) of Section 27 are satisfied and therefore permission shall be deemed to have been granted, no further question arises so far as the grant of permission is concerned.'

(Emphasis is supplied)

19. Let me now turn to the facts established in this case. The defendant in its written statement admitted that the plaintiff has submitted an application to it on 16-2-1981 requesting for a land use certificate. It is also clear from Ex. P-10 that the matter was discussed by the defendant before issuing Ex P-10 and the matter discussed was the request of the plaintiff made in its application dated 16-2-1981 for a land use certificate from public and semi-public use to commercial use in respect of the plaint schedule property. From these materials it is abundantly clear that the Plaintiff has made an application on 16-2-1981 for permission as required under Section 14 of the Act which was considered by the defendant at its Board meeting held on 15-4-1982 and thereafter the defendant issued the endorsement Ex. P-10 to the Plaintiff calling upon the Plaintiff to pay a sum of Rs. 5,00,000/- by way of penalty for taking further action in the matter In between the presentation of the application on 16-2-1981 and the issuance of the endorsement on 25/31-5-1982, the defendant took no action in communicating its decision to the Plaintiff as required in sub-section (2) of Section 15. The endorsement Ex. P-10, on the other hand, indicates that the consideration of the application filed by the Plaintiff was still at large ; all that the defendant asked the Plaintiff to do was to pay the penalty as stated in the endorsement within the time stipulated therein as a condition precedent to consider its application. Thus, it is clear from the above materials about which there is no dispute between the parties that the Plaintiff has made an application to the defendant for permission under Section 14, that the application was received by the defendant on 16-2-1981 and that the defendant did not communicate its decision to the Plaintiff within 3 months from the date of the receipt of the application. Thus, I have no hesitation to conclude that the conditions specified in sub-section (2) of Section 15 are satisfied and the certificate sought by the Plaintiff shall be deemed to have been granted and no further question arises so far as the grant of permission is concerned.

20. Although it is not quite relevant to examine other questions raised by Sri Shivraj Patil that there was no valid application before the Planning Authority for its consideration, since Ex. P-9 the application made by the Plaintiff under Section 14 was not in compliance with sub-section (3) of Section 14 and the failure on the part of the Plaintiff to produce the written acknowledgment from the Planning Authority acknowledging the receipt of its application for permission, the Plaintiff is not entitled for the deemed permission, I shall proceed to consider these two arguments on their merits as elaborate arguments were addressed both by Sri Shivraj Patil as well as by Sri Farooq, the Learned Advocates appearing for the parties in this regard.

21. As regards the first contention, Sri Patil drew the attention of the Court to the application Ex. P-9 and pointed out that the application does not show that the Plaintiff had enclosed a plan with necessary details as required under sub-section (3) of Section 14 of the Act. In that view he proceeded to argue that the very application made by the Plaintiff was not in accordance with law and as such the Plaintiff could not claim the benefit of deemed commencement certificate.

22. It is true that Ex. P-9 does not show that any plan having been enclosed to it as required under sub-section (3) of Section 14 of the Act. The mere fact that Ex. P-9 does not show that any plan having been enclosed as stipulated under sub-section (3), I find it difficult to reach a positive conclusion that Ex. P-9 was not a valid application. In the first place if the application was not in accordance with law, certainly the defendant would have either rejected the application or called upon the Plaintiff to rectify the defects in the application if any. No such action was taken by the defendant. That apart, no plea was taken by the defendant in its written statement that Ex. P-9 was not in compliance with sub-section (3) of Section 14. That is not all. Even during the trial, the defendant appears to have not taken such a stand as could be seen from the cross-examination of PW-1. It was not suggested to PW-1 that Ex. P-9 was not in conformity with the provisions of the Act. Instead, what was suggested to PW-1 and an answer obtained from him was that the Plaintiff did not enclose all the endorsements issued by the Corporation to the application Exhibit P-9. It is clear from the trend of the cross-examination of PW-1 that the defendant did not challenge the validity of the application, but contended only that there was delay in dealing with the application of the Plaintiff because the Plaintiff did not enclose the endorsements given by the Corporation to its application. That being the position, I really find it difficult to accept the contention now put forward on behalf of the defendant that the application Ex. P-9 was not a valid application upon which the defendant was not obliged to take any action. It is too late for the defendant now to contend that the Plaintiff has not complied with sub-section (3) of Section 14 when he made the application for permission under Section 14.

23. As regards the second contention, it is true that the Plaintiff has not produced any written acknowledgment issued by the defendant for having received the application filed by the plaintiff for permission under Section 14 of the Act as stipulated under sub-section (1) of Section 15. It is true under sub-section (1) a statutory duty is cast upon the Planning Authority to furnish a written acknowledgment to the applicant of its receipt of the application for permission made by the applicant under Section 14. No doubt furnishing of a written acknowledgment to the applicant for the receipt of the application for permission is for the benefit of the applicant inasmuch as it would be a piece of evidence for the purpose of calculating the statutory period of 3 months within which the Planning Authority has to communicate its decision to the applicant, but failure to obtain the same may not result in breach of any statutory provision by the applicant. Besides, I do not find nor brought to my notice, any provision in the Act imposing a duty on the applicant to obtain a written acknowledgment from the Planning Authority for the receipt of the application made for permission. Hence, I find no force in this contention.

24. Now coming to the relief of permanent injunction sought by the Plaintiff in respect of the endorsement Ex. P-10 issued by the defendant, no argument was advanced assailing the finding of the Court-below. However, it must be noticed that the defendant called upon the Plaintiff under Ex. P-10 to pay a sum a sum of Rs. 5,00,000/- by way of penalty for putting up a construction on the plaint schedule property without obtaining a commencement certificate from the defendant and directed to issue a notice to the Plaintiff to stop further work in the construction of the building.

This endorsement was issued by the defendant as per its decision taken at its meeting held on 15-4-1982 whileconsidering the application Ex. P-9 dated 16-2-1981 made by the Plaintiff for the grant of a commencement certificate in respect of the schedule property. Once it is held that the Plaintiff had the benefit of a deemed certificate of the change in land use, the very foundation upon which the endorsement Ex. P-10 was based falls to the ground and as such the defendant cannot enforce the order under Ex. P-10 against the Plaintiff. That being the position, it seems to me that the Plaintiff was entitled for the relief of injunction sought in the suit and granted by the Trial Court.

25.For the reasons stated above, the appeal fails and the same is dismissed. Under the circumstances, I direct each party to bear its own costs.


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