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Latika Co-operative Housing Society Ltd. and ors. Vs. Commissioner, Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 10148 (w) of 1976
Judge
Reported inAIR1980Cal17,83CWN829
ActsCalcutta Municipal Act, 1951; ;Calcutta Municipal Rules - Rules 51, 52, 56 and 57(2)
AppellantLatika Co-operative Housing Society Ltd. and ors.
RespondentCommissioner, Corporation of Calcutta and ors.
Appellant AdvocateR.C. Deb, ;N.C. Roy Chowdhury and ;D.K. Mitra, Advs.
Respondent AdvocatePradip Ghosh, Adv.
Cases ReferredManak Lal v. Dr. Prem Chand Singhvi
Excerpt:
- orderg.n. ray, j.1. in the instant rule the petitioners challenge the legality and validity of the notice and/or letter dated 5/7-6-1976 and pray for writs directing the respondents namely the corporation of calcutta and its officers to forthwith issue in favour of the petitioner no. 1, a co-operative housing society, sanction or permission to execute work in accordance with the plan submitted on june 26, 1974. the petitioners also pray for quashing and/or cancelling the impugned order of refusal of the plan for sanction dated june 26, 1974 as contained in the afore-said memo of the corporation of calcutta dated 5/7th june, 1976 and also a notice under section 41g of the calcutta municipal act dated july 15, 1976. the petitioners also pray for other appropriate writs in the nature of.....
Judgment:
ORDER

G.N. Ray, J.

1. In the instant Rule the petitioners challenge the legality and validity of the notice and/or letter dated 5/7-6-1976 and pray for writs directing the respondents namely the Corporation of Calcutta and its officers to forthwith issue in favour of the petitioner No. 1, a Co-operative Housing Society, sanction or permission to execute work in accordance with the plan submitted on June 26, 1974. The petitioners also pray for quashing and/or cancelling the impugned order of refusal of the plan for sanction dated June 26, 1974 as contained in the afore-said Memo of the Corporation of Calcutta dated 5/7th June, 1976 and also a notice under Section 41G of the Calcutta Municipal Act dated July 15, 1976. The petitioners also pray for other appropriate writs in the nature of prohibition and also suitable directions restraining the respondents from giving any effect or further effect to the said memo of refusal and the said notice under Section 416 of the Calcutta Muincipal Act.

2. The short fact concerning the instant Civil Rule is that the petitioner No. l is a Co-operative Society duly registered on 4th November, 1974 under the West Bengal Co-operative Society Registration Act, 1973 having its by-laws also registered under the said Act and the Rules framed thereunder The petitioners Nos. 2 to 37 are members of the said Co-operative Society and are citizens of India. Premises No. 9/3, Hungerford Street, Calcutta-17 originally belonged to Protap Singh, son of the late Maharaj Chandrachtir Singh and on or about 19th Dec. 1973 the said Protab Singh entered into an agreement for sale of the said premises in favour of one Sri Trilok Chand Hanchand Mehra and Bridhraj Bhandari for a consideration of Rs. 9,74,595/- and it was stipulated in the said agreement that the conveyance in respect of the said premises would be executed in favour of the said Trilok Chand Harichand or Bridhrai Bhandari or in the names of their nominees. By the said agreement a sum of Rs. 1,40,000/-was paid as earnest money to the said vendor Protap Singh. On July 18, 1974, a registered agreement was executed between the said Sri Protap Singh and Trilok Chand Mehra and Bridhrai Bhandari for sale of the said premises inter alia providing therein that the purchasers had requested the vendor to give possession of the premises so as to enable the purchaser to proceed with the application for sanction of a, building plan by the Corporation of Calcutta and possession had also been given by the said Protap Singh to the said Trilok Chand Mehra and Bridhraj Bhandari. It may be stated that the Co-operative Society in question was not registered at that time. According to the petitioners, it was further provided for in the said Deed of Agreement that Protap Singh had received from time to time a sum of Rs. 8,44,595/- towards the consideration money and the said Protap Singh would execute and register proper deed of conveyance in favour of the Society afterits registration and upon the Society's making payment of a sum of Rs. 1,30,000/- being the balance amount of the consideration money. On 20th Ma Rule 1975, the said Pratap Singh and his wife Maharani Prativa Manjuri Devi and his son Rajeswari Singh executed a deed of conveyance in favour of the petitioner society namely Latika Co-operative Housing Society Ltd. In terms of the aforesaid agreement, after getting possession of the said premises on June 26, 1974 the Latika Housing Society submitted a plan for a multistoried residential building at premises No. 9/3 Hunger-ford Street and the plan was prepared with a view to accommodate all the members of the Society. The Corporation of Calcutta acknowledged the submission of the building plan' by granting a receipt. On 1st Aug. 1974, the Municipal Authority issued requisitions under Rule 54 of Schedule XVI of the Calcutta Municipal Act raising certain objections. The petitioners contend that without prejudice to their contention that the plan must be deemed to have been sanctioned under Rule 56, the petitioners replied to the said requisition by a letter dated 14th Aug, 1974 inter alia stating therein the reasons for non-compliance with the requisitions which, according to the petitioners, were not required to be complied with under the provisions of the Calcutta Municipal Act. The respondents after receipt of the said letter dated 14th Aug. 1974 did not ask for further information and the said respondents also did neither grant nor refuse permission within the time prescribed by the Rules under Schedule XVI of the Calcutta Municipal Act. The petitioners contend that as the Corporation did neither sanction nor refuse to sanction the building plan within the prescribed period, under Rule 56 of Schedule XVI of the said Act, the plan of the building must be deemed to have been sanctioned in favour of the petitioners. It appears that on 4th Aplirle 1975 the respondent No, 5 namely the District Building Surveyor, District No. III (P) of the Calcutta Corporation informed the petitioner No. 1 that as the building exceeded 120 ft. height and the same was objectionable under Rule 3 (1) of Schedule XVI' of the Calcutta Municipal Act, 1961, the plan would be placed before the Tall Buildings Committee and the resolution of the committee was to be complied with before the case would be dealt with for sanction. It was stated in the said letter that the requisition of 'C' formwould also have to be complied with. The petitioners, however, contended that such requisition in 'C' form had already been complied with and intimation had already been given to that effect. The petitioners also contend that under the then existing provisions of Calcutta Municipal Act and the rules framed thereunder, consideration of the proposed plan by an alleged Tall Buildings Committee was unwarranted and the demand for such compliance of the resolution of the Tall Buildings Committee was also without any authority. Besides, the plan of the building must be deemed to have been sanctioned under the said Rule 56 of Schedule XVI of the Act and as such there was no scope for making further requisition by the Corporation of Calcutta. The petitioners also contend that the petitioners had informed the Corporation of Calcutta that the petitioners had made substantial investment for the purchase of the land and for other preliminary constructions necessary for erection of the proposed building and in such circumstances, the Corporation should consider the matter sympathetically. The petitioners further contend that the respondent No- 5 informed the petitioner No. 1 regarding certain objections made by the Tall Buildings Committee in respect of the said plan and the petitioner No. 1 wrote to the respondent No. 4 namely the City Architect, Corporation of Calcutta on 7th Feb. 1976 that the recommendation of the Tall Buildings Committee was not acceptable to the petitioners. According to the petitioners the plan submitted on 26th June, 1974 did not violate any building rules and the said plan must be deemed to have been sanctioned and the construction had also been commenced in accordance with the said building plan. The petitioners further contend that by letter dated 5/ 7th June, 1976 issued by the respondent No. 4 namely the City Architect, Corporation of Calcutta countersigned by the respondent Nos. 1 and 5 it was alleged that the plan submitted by the petitioners did not conform to the rules and the said application was rejected under Rule 54 (4) of the Schedule XVI of the Calcutta Municipal Act, 1951 for non-compliance with the requisition. It may be stated that the respondents contend that such requisitions were received by the Secretary of the Society on 27th Aug. 1976 but according to the petitioners neither the Society nor any Secretary of the Society had received such requi-sitions. The Corporation of Calcutta however, did not accept the contention of the petitioners that the building plan in question must be deemed to have been sanctioned under Rule 56 and as such the petitioners were at liberty to proceed with the constructions as per the building plan. On the contrary, on the 15th July, 1976 the Corporation of Calcutta issued a notice under Section 416 of the Act directing the owner or the persons carrying on the work of construction on the said premises No. 9/3, Hungerford Street to stop forthwith construction of the R. C. C. columns on the ground that the construction had been commenced and was being carried on without any sanction and in breach of the provisions of the Municipal Act. It was also contended in the said notice dated 15th July, 1976 that if the petitioners would fail to comply with the requisitions of the said notice, then the Commissioner of Corporation of Calcutta with the assistance of the police would stop the continuance of the illegal construction and the cost of such police watch would be realised from the petitioners. As aforesaid, the petitioners challenged the legality and validity of the said memorandum of the Corporation of Calcutta inter alia intimating that the application for sanction of the building plan was rejected under Rule 54 (4) and also directing the petitioners to forthwith stop construction at the said premises under Section 416 of the Act.

3. Mr. R. C. Deb being ably followed by Mr. N. C. Roy Chowdhury, the learned counsel for the petitioners, contended that admittedly the plan for the building in question was submitted before the Corporation of Calcutta on 26th June, 1974 and within 30 days from the date of receipt of the said plan along with an application for sanction of the plan, the Corporation of Calcutta did not take any step whatsoever in respect of the said application. The Corporation did neither formally approve the plan and accord its sanction nor did it reject the said application for sanction of the plan. Under such circumstances, Mr. Deb contended that in terms of Rule 56 of Schedule XVI of the Act, the petitioners are entitled to proceed on the footing that the plan must be deemed to have been sanctioned. Mr. Deb contended that if under the deeming provisions, the petitioners are entitled to proceed on the footing that there is asanction to proceed with the execution of construction of the building in question, the Corporation of Calcutta is not authorised to reject the said plan and/or to stop the work of construction so long such construction work did not contravene any of the provisions of the Act or any rule or by-laws made thereunder. Mr. Deb contended that the authorities of the Corporation of Calcutta are proceeding on the footing that they had refused to sanction the plan submitted by the petitioners on 5/7th June, 1976 and as such the petitioners were not entitled to carry on any construction work whatsoever Mr. Deb contended that the Corporation of Calcutta and/or its officers were not entitled to stop the construction work altogether on such footing that there was no accord of sanction to execute work of construction and as such the work of construction is per se illegal and unauthorised. Under the deemed sanction the petitioners can proceed with the execution of work of construction but if in the process of such execution any of the provisions of the Act or the rules or bye-laws framed thereunder is contravened, the Corporation of Calcutta has certainly the power to stop such unauthorised construction. In the aforesaid circumstances, Mr. Deb contended that the said Memo dated 5/7th June, 1976 of the Corporation of Calcutta refusing to grant sanction of the plan submitted by the petitioners and further action in issuing direction under Section 416 of the Act to stop construction work was wholly illegal and without any authority whatsoever and the petitioners are entitled to the writs and/or orders or directions as prayed for in the instant Rule. To appreciate properly the contentions of the learned counsel of the petitioners it is necessary to refer to a few rules relating to an application for construction of masonry building by a person and accord of sanction on such application by the Corporation of Calcutta. Part VII of Schedule XVI of the Calcutta Municipal Act contains the rules relating to applications for permission to erect new buildings other than huts. The relevant rules are set out hereunder:--

'Rule 50. (1) Every person who intends to erect a new building (other than a hut) shall send to the Commissioner an application for permission to execute the work, together with a site-plan of the land, a plan of the whole building, separate plans of each floor of the building,complete elevations and sections of the work and a specification of the work.

(2) Every document referred to in sub-rule (1) shall contain the particulars and be prepared in the manner hereinafter in this part prescribed in this behalf.

51. (1) Every application made under Rule 50 shall be written on a printed form (to be supplied by the Commissioner free of charge), and shall state the position of the site, the number assigned to it in the assessment book and its dimensions, the description of the building and its dimensions, and such other particulars as may be prescribed by the Commissioner

(2) The site-plan sent with such an application shall be drawn to a scale of not less than one-fiftieth of an inch to the foot, shall be sent in triplicate, and shall show-

Clause (a) to (1)- [Not quoted. The said clauses provide for various particulars in the site plan to be annexed to the petition.]

(3) and (4) ..................

52. ...............

53. (1) Every person who intends to erect a new building or add to any building, shall if such erection or addition costs more than twenty-five thousand rupees, employ a licensed building surveyor to supervise the erection of such building or addition.

(2) The name of the person to be so employed shall be stated in the application under Rule 50, in respect of such building.

(3) If the person so employed dies or ceases to be so employed before the completion of the said building, the name of the licensed building surveyor employed in place of such person to supervise the erection of such building, shall be forthwith reported to the Commissioner.

54. (1) Ail information and documents which it may be found necessary to require, and all objections which it may be found necessary to make before deciding whether permission to erect a new building (other than a hut) should be given, shall be respectively required and made in one requisition, and the applicant shall be appraised thereof at the earliest possible date.

(2) to (4) ...............

55. (1) Within one month after the receipt of any application made under Rule 50 for permission to execute any work, or of any information or documents or further information or documents requir-ed under this schedule, or within one month after the Commissioner has been satisfied that there are no objections which may lawfully be taken to the grant of permission to execute the work, the Commissioner shall, by written order, either-

(a) grant permission conditionally or unconditionally to execute the work, or

(b) refuse, on one or more of the grounds mentioned in Rule 57 or Rule 61, as the case may be, to grant such permission.

(2) When the Commissioner grants permission conditionally under clause (a) of Sub-rule (1), he may, in regard thereto, impose such conditions, consistent with this Act, as he may think fit.

(3) and (4) ...............

56. If within the period prescribed by Rule 55, the Commissioner has neither granted nor refused to grant permission to execute any work, such permission shall be deemed to have been granted; and the applicant may proceed to execute the work, but not so as to contravene any of the provisions of this Act or of any rules or bye-laws made thereunder.

57. The only grounds on which permission to erect a new building (other than a hut) may be refused are the following, namely:--

(1) that the work, or any of the particulars comprised in the site-plan, building plans, elevations, sections or specifications would contravene some specific provision of this Act or some specific order, rule or bye-laws made thereunder;

(2) that the application for such permission does not contain the particulars or is not prepared in the manner prescribed in this schedule;

(3) that, in the case of a new building (other than a hut) falling within the street alignment or building-line of a public street projected under Section 63 of the Calcutta Improvement Act, 1911, the permission of the Chairman of the Board of Trustees for the Improvement of Calcutta has not been obtained;

(4) that any of documents referred to in Rule 50 have not been signed as prescribed in Rule 52;

(5) that any information or documents required by the Commissioner under this schedule have not been duly furnished; or

(6) that the applicant has not satisfied the Commissioner in regard to any objections which may have been taken under these rules to the grant of the said permission.

58. and 59. ...............

60. Subject to the provisions of Rule 56, the erection of a new building (other than a hut:) shall not be commenced unless and until the Commissioner has granted permission for the execution of the work on an application sent to him under Rule 50.

61. and 62. ...............

63. If, at any lime after permission to erect any masonry building has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the application made under Rule 50, or in the plans, elevations, sections, or specifications submitted therewith in respect of such building, he may cancel such permission and any work done thereunder shall be deemed to have been done without permission:

Provided that, if such permission was granted with the approval of the Standing Committee, the Commissioner shall not cancel it except with the approval of the Standing Committee.

4. Referring to the aforesaid rules. Mr. Deb contended that admittedly on 26th June, 1974 Lalika Housing Co-operative Society submitted a 'plan for multi-storied residential building at the premises No. 9/3 Hungerford Street. As the said Latika Housing Co-operative Society was competent to make an application under the aforesaid Rule 50 and as within the period of one month since prescribed by Rule 55, the Commissioner had neither granted nor refused to grant permission to execute any work, under the provisions of Rule 56 such permission shall be deemed to have been granted and as such the applicant was entitled to proceed with the execution of the work of construction with only this limitation that in the process of such exeqution, the applicant is not to contravene any of the provisions of the Act or any rules or bye-laws made thereunder. In the aforesaid facts the purported refusal to grant permission under Rule 54 by the Corporation of Calcutta as contained in the said impugned memo dated 5/7-6-1976 is wholly misconceived and of no consequence. Mr. Deb contended that if under the deeming provisions the petitioners were entitled to execute the work of construction then the Corporation was not authorised to stop the execution of the said work by issuing notification under S. 416 because such notification wasissued not on the ground that execution of any particular work was unauthorised or such construction had contravened the provisions of the Act and the rules framed thereunder but the impugned notification and/or direction under Section 416 of the Municipal Act was issued on the footing that there was no sanction of any plan and as such the petitioners were not entitled to proceed with any construction work whatsoever. Mr. Deb contended that the very purpose of according permission to execute work under the deeming provisions under Rule 56 becomes nugatory if the Corporation proceeds on the footing that as no plan was sanctioned by the Corporation no work can be executed at all. Mr. Deb contended that although under the said deeming provisions the petitioners were entitled to carry on and/or to execute the construction work, such authority to execute the work of construction does not authorise the petitioners to effect constructions in any manner they like. The authority to execute work of construction under the deeming provisions of Rule 56 is certainly circumscribed by the express limitation under the said rule namely that the work of construction should not contravene any of the provisions of the Act or any rules or bye-laws made thereunder. Mr. Deb also submitted that in such circumstances, the Corporation of Calcutta will not suffer any prejudice and the Corporation with always have the right to stop execution of work whenever such work will be undertaken in contravention of any of the provisions of the Act or rules framed thereunder.

5. Mr. Ghosh the learned counsel aprpcaring for the respondent's however submitted that the question as posed by the learned counsel for the petitioner was not so simple. Mr. Ghosh contended that in order to get the privilege of deemed sanction under the provisions of Rule 56, it must be established that the persons having authority to execute the work on a particular plot of land had made an application and such application was also made in accordance with the provisions of the Act and the rules framed thereunder. If the application for grant of sanction of a building plan is not made by a person authorised to make such application or if such application is not in conformity with the provisions of the rules framed thereunder, then such application cannot be deemed to be a valid application and there cannot be any question of deemed sanction in respectof an invalid application. For this contention, Mr. Ghosh referred to a decision of Madhya Pradesh High Court made in the case of Govind Prasad v. Administrator of the City of Jabbalpur reported in : AIR1971MP216 . It was held in the said case that to get the benefit of deeming provisions, there must be a valid application. Mr. Ghosh contended that in the instant case the application for sanction of a building plan since submitted to the Corporation of Calcutta was signed by the Secretary, Latika Housing Society. The said Latika Housing Society was not a corporate body and as such the Secretary of the said Society had no authority to sign the said application. The said Secretary not being the owner of the land in question could not make the said application and on that score alone the application for sanction of the plan must be held to be an invalid application and accordingly it must also be held that the Corporation was not under any obligation to deal with and/or to consider such invalid application. Hence, on the strength of an invalid application, the petitioners are not entitled to take the benefit of deemed sanction under the provisions of Rule 56. Mr. Ghosh referred to para. 7 of the supplementary affidavit' and contended that it will appear from the said supplementary affidavit that the particulars required under clauses (d) and (e) of Rule 51 (2) were not given in the plan submitted by the said Secrevary, Latika Housing Society. Requirements under Rule 50 and 51 had also not been complied with. Mr. Ghosh further contended that separate floor plans for each floor had not been submitted although the said particulars have got to be furnished in the site plan accompanying the application for sanction of a building plan. Mr. Ghosh contended that it was admitted by the petitioners in reply to the affidavit-in-opposition of the respondents that the plan was incomplete but such defect was cured on 24th August, 1978, when with the leave of the Court and without prejudice to the rights and contentions of the parties in the instant Rule, the petitioners had further discussion with the City Architect of the Corporation of Calcutta to settle the disputes between the parties, if possible. Hence, Mr. Ghosh contended that admittedly the plan was incomplete and it did not contain the relevant particulars required to be given under the aforesaid Rules. As a result, the petitioners cannot claim any deemed sanc-tion under the aforesaid provisions of Rule 56. Mr. Ghosh next contended that 'deemed sanction' referred to in Rule 56 must relate to the plan as originally filed. Under the deeming provisions, though sanction was not factually made, such sanction exists by fiction. Mr. Ghosh confended that sanction to execute any work must necessarily refer to a building plan and without reference to any such plan the sanction to execute work cannot be conceived. For this contention Mr. Ghosh referred to the said Rule 50 and contended that the said rule indicates that there cannot be any sanction to execute work for erecting any masonry new building, but there will be sanction to execute work as specified in the plan of the proposed building. Rule 55 also indicates that permission to execute work or refusal to grant permission to execute work will be made with reference to construction of new building as per the plan submitted. Mr. Ghosh also referred to Rule 58 of Schedule XVI and contended that the said rule also indicates that the permission is to be granted on the basis of the plan submitted. Referring to Rule 22 of Schedule XVI, Mr. Ghosh submitted that the said Rule also indicates that there cannot be any sanction to execute work of construction of any building but sanction to execute work is only referable to the plan submitted. Similarly, Rule 62 also refers to the sanctioned plan. Mr. Ghosh further referred to Section 414 (i) (b) of the Act and contended that the said section also indicates that sanction to execute any work of construction must be on the basis of a plan. In this connection, Mr. Ghosh also referred to a Bench decision of this Court made in the case of Commr. of Corporation of Calcutta v. S. K. Datta Gupta reported in (1975) 79 Cal WN 908. In the said case the legal incidence of refusal of an application received under Rule 50 as contained in Rule 54 (4) vis-a-vis the implication of refusal to grant such application under Rule 55 (1) (b) were taken into consideration. It was however held in the said decision that it is only where all particulars required under the Act have been given in the application that the application can be taken up for consideration by the Commissioner. Mr. Ghosh submitted that the application submitted by the petitioners was not a proper or valid application made by a person having competence to make such an application and the said application also did not contain relevant particulars required under the rules as indicatedhereinbefore but the Corporation instead of rejecting the said application in limine considered the said application on merit and asked the petitioners to furnish other relevant particulars required under the Act and the rules and also directed the petitioners to conform to the provisions of the Act and the rules framed thereunder for obtaining a sanction of the plan submitted by the petitioners. Mr. Ghosh next contended that even assuming that in the facts of the case, the application for sanction was a valid application, the petitioners not having insisted on the right under a 'deemed sanction' as contained in Rule 56 but on the contrary having taken part in making further representation and having furnished further particulars in terms of requisition made by the Corporation for obtaining a sanction of the said building plan, is not entitled to fall back on the right to execute work under the said deemed sanction when the Corporation on consideration of the application on merit refused to grant sanction. Mr. Ghosh contended that in the facts of the case, the petitioners are completely estopped from contending that under the deeming provisions of Rule 56 the petitioners had obtained a deemed sanction to execute the work of construction of the proposed building. For this contention, Mr. Ghosh referred to a passage of the treatise The Law relating to estoppel by representation' by George Spencer Bower at page 184 which runs to the following effect:--

'Where a Statute requires something to be done by one of the parties as a condition precedent to the validity of an instrument or transaction which, therefore, is not made by the Statute absolutely illegal and void in iteself but only contingently so, it is contended with considerable force that there is no reason why the party entitled to insist on the fulfilment of the statutory condition should not be allowed to renounce or waive his right either by express agreement or consent or by acts and conduct having the effect of precluding him from asserting the legality of the instrument or transfer an effect which (whether so described or called by in other name as such waiver) is, as is pointed out elsewhere nothing but a form of estoppel.'

6. Mr. Ghosh also referred to a passage of Maxwell on the Interpretation of Statutes' 12th Edition, page 328. Referring to the principle of waiver thelearned author in the said treatise held 'every one has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy'. Mr. Ghosh also referred to Rule 56 of Sen. XVI and submitted that the marginal note of the said rule indicates that the said rule provides for remedy if Commissioner delays to grant or refuses to grant permission. Hence, simply because under the said Rule 56, a sanction to execute work of construction may be deemed to have been given, it cannot be contended that the Corporation can no longer grant sanction on the basis of the plan submitted by the party, if the party in spite of the deemed sanction asks for consideration of his application on merit either expressly or by conduct. Mr. Ghosh also contended that the time limit to accord sanction within one month is only directory and not mandatory. For this contention, Mr. Ghosh referred to a passage in the treatise of Interpretation of Statutes by Bindra (6th Edition, p, 670). Quoting Corpus Juris, the learned author stated that where a public officer is directed by a Statute to perform a duty within a specified time the provisions as to time are only directory. Accordingly, Mr. Ghosh submitted that simply because one month's time had elapsed from the submission of the plan, it cannot be contended that the Corporation can no longer take the said application for consideration and on such consideration, subsequently cannot grant or refuse to grant permission. Mr. Ghosh also contended that it is evident that the petitioners did not avail of the right under the said deemed sanction under Rule 56 but had waived such right to execute work under the deemed sanction and, on the other hand, had taken steps to have the application for sanction considered on merit and to obtain sanction on such consideration. Accordingly, the petitioners are estopped to contend in the writ petition that they have right to execute work under deemed sanction under Rule 56. In this connection Mr. Ghosh also referred to the decision made in the case of Lachoo Mal v. Radhye Shyam reported in : [1971]3SCR693 . The Supreme Court, quoted in approval the observation of Maxwell 'On the Interpretation of Statute' that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefitand protection of the individual in his private capacity. Mr. Ghosh contended that the deemed sanction is solely for the benefit of an individual in his private capacity to obtain permission to execute work of construction of a building within the limits of the Corporation of Calcutta and it is entirely for such individual to waive and/or to agree to waive such advantage. Hence, even assuming that the petitioners were entitled to the right to execute work under the deemed sanction, in the special facts and circumstances of the case, the petitioners are precluded from claiming such right any further. Mr. Ghosh further contended that in any event, the petitioners having neglected to assert such right under the deemed sanction for a number of years, the petitioners are not entitled to ask for appropriate writs and/or directions in the constitutional Writ Jurisdiction of this Court. For this contention Mr. Ghosh referred to the decision of the Supreme Court made in the case of M. S. Rule T. Corporation v. B. Rule M. Service reported in : [1969]1SCR808 . It was held in the said case that it is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Mr. Ghosh also referred to another decision of the Supreme Court in this connection, namely the decision made in the case of Manak Lal v. Dr. Prem Chand Singhvi reported in : [1957]1SCR575 . In the said case, the allegation of bias made by the petitioner against the Chairman of Bar Council Tribunal was negatived by the Supreme Court on the ground that the party alleging such bias never did raise the plea of bias before the Tribunal in the manner in which the said point was raised before the High Court and the Supreme Court accepted the contention of the respondents that the party having appeared before the Tribunal must be held to have waived his objection and as such he should not be allowed to raise it. Mr. Ghosh contended that the petitioners, if they had really intended to take the benefit of the deemed sanction should have insisted on such right from the very beginning. But it is quite evident that at no point of time such right was insisted bv the petitioners but as aforesaid, the petitioners really asked for sanction on consideration of the application on merit sympa-thetically. Mr. Ghosh also contended that in the aforesaid circumstances of the case, the petitioners should not be allow--ed to carry on any construction whatsoever under the deemed sanction and the action of the Corporation in issuing the said notice under Section 416 of the Act to stop the unauthorised construction is quite justified and in any event no interference in the constitutional writ jurisdiction is called for.

7. Mr. Roy Chowdhury in reply to the aforesaid contentions raised by Mr. Ghosh contended that under Rule 50, any person who intends to erect a new building is to send to the Commissioner an application for permission to execute the work. It is not necessary that such an application should be made by the owner of the land. From the facts of the case, it will be quite apparent that the Cooperative Housing Society was not registered at the material time but the possession of the said land was taken by some promoters of the said Co-operative Housing Society and under the terms of the agreement with the owner of the land the application for sanction of the building plan was made in the name of Latika Housing Co-operative Society. 'Person' has been defined under Section 3 (32) of the Bengal General Clauses Act to the following effect:--

' 'Person' shall include any company or association or body of individuals whether incorporated or not.'

Mr. Roy Chowdhury also referred to Rule 52 of the Schedule XVI of the said Act and submitted that the plan is required to be signed by the owner of the building and the Rule does not speak that such plan is required to be signed by the owner of the land. Hence when there was an agreement to convey the said land by the owner and when the major part of the consideration money had been paid to the owner and the possession had been handed over by the owner in favour of the purchasers with an express permission to apply for sanction of building plan on the said land, it cannot be contended that it was only the owner of the land and no one else was eligible to make such application. In my view, the aforesaid contention of Mr. Roy Chowdhury is of substance and I am inclined to accept the same. In my view, it is not necessary that only the owner of land is to make an application for sanction of a building plan under the said Act, If 'any person' makes an application forsanction of a building plan, the Corporation of Calcutta must consider the application and the site plan and ascertain as to whether the plan of the proposed building conforms to the provisions of the Act and rules framed thereunder and if the plan conforms to the Act and the rules and the application is also made by the applicant in accordance with the provisions of the Schedule XVI of the Act the Corporation must accord permission despite the fact that such application is not by the owner of the land. Whether such person has right to effect such construction on other's land is the concern of the owner of the land or any other person having legal right on the land and the Corporation of Calcutta is not entitled to refuse to grant permission simply on the ground that the person seeking for sanction is not the owner of the land in question. In this connection, Mr. Roy Chowdhury also referred to Section 5 (53) of the said Act and submitted that the definition of 'owner' in the Act is an inclusive definition and it cannot be contended that a licensee cannot be deemed to be 'owner' for the limited purpose of the Act. Mr. Roy Chowdhury also contended that the time schedule fixed for according sanction of a building plan or refusing such sanction is absolutely mandatory and if such plan is not refused and/or sanctioned within one month from the date of submission of the plan then under Rule 56 it must be deemed that there has been a sanction to execute the work. Mr. Roy Chowdhury contended that if a person under the deemed sanction is authorised to carry on the construction work without infringing the provisions of the Act and the rules framed thereunder, it is inconceivable that after such 'deemed sanction', the Corporation may still entertain the application for sanction of a building plan and may either accord sanction or refuse to grant such sanction. Mr. Roy Chowdhury submitted that it would be anomalous that a party having obtained an authority to execute the work under the deemed sanction will be deprived of such authority at a later date simply because the Corporation subsequently though it desirable to consider the application for sanction of a building plan on merit and passed orders on such consideration. Mr. Roy Chowdhury contended that it must be held that the time limit fixed for according sanction of a building plan is mandatory and not recommendatory as contended by Mr. Ghosh, otherwise, the provisions of'deemed sanction' may become nugatory by the belated action of the Corporation of Calcutta. In my view, Mr. Roy Chowdhury's contention should be accepted with some qualification. After the 'deemed sanction' under Rule 56 the Corporation is not normally entitled to consider the application on merit, without anything more, thereby frustrating the right given to an applicant under the deemed sanction to proceed to execute the work. But it must also be borne in mind in this connection that such deemed sanction may not be availed of by an applicant and the applicant may waive such right under the deemed sanction and may still ask for the sanction of the plan by the Corporation on consideration of the application on merit in order to avoid any complication 'in future or for any other reason. In my view, if an applicant waives his right under deemed sanction as contained in Rule 56 and does not proceed to execute the work of construction in question but approaches the Corporation for consideration of his application on merit, the deemed sanction will lose its force because of waiver and in such circumstances, the Corporation will be quite entitled to consider the application on merit despite the expiry of the period mentioned in Rule 56.

8. Mr. Roy Chowdhury also disputed the contention of Mr. Ghosh that the application for sanction of the building plan not having contained all the relevant particulars required under the relevant Rules of the Schedule XVI of the Act such application was invalid and did not merit any consideration on merit. It is true that all the relevant particulars were not. given at the time of submission of the plan for sanction of the proposed building and admittedly after the Corporation had made requisitions, some particulars were furnished at a later date. But in my view, it cannot be contended that simply because there was an omission to give one or two required particulars at the time of making the application for sanction of a building plan such application becomes an invalid application, not required to be considered at all on merit. It is precisely for the purpose of asking for further required particulars from an applicant and for raising objections against the proposed construction, the provision for making requisition by the Corporation has been made in Rule 54. I am, however, inclined to accept the contention of Mr. Ghoshthat for obtaining the benefit of a 'deemed sanction' under Rule 56, the application must be a valid application containing the site plan and other relevant particulars required under the said Rules. If for want of such essential relevant particulars, the application could not have been considered on merit and sanction given by the Corporation, there cannot be any deemed sanction under Rule 56. In my view, Rule 56 has been incorporated to protect an applicant from undue delay on the part of authorities of Calcutta Corporation to take up the application for sanction of a building plan for consideration on merit. But the question of 'deemed sanction' will not arise if sanction on merit was not possible. In the instant, case, admittedly all the particulars required under the Rules for according sanction of the building plan were not given at the time of making the application' or even before the expiry of the period mentioned in Rule 56 and as such on the basis of the existing application, the plan of the applicants could not have been sanctioned. Hence, in my view, the petitioners are not entitled to claim benefit of deemed sanction under Rule 56 in the instant case.

9. That apart, in the instant case, the petitioners admittedly furnished further particulars, though not complete in all respects, in answer to the requisition made by the Corporation of Calcutta for consideration of application for sanction of the building plan on merit. In the facts and circumstances of the case, there is no manner of doubt that the petitioners had been appearing before the authorities of the Corporation of Calcutta, contending before such authorities that the plan submitted on their behalf for erecting the proposed building should be sanctioned as the said plan was in conformity with the provisions of the Act and the Rules framed thereunder and the objections made by the Corporation authorities were untenable. Hence, I am inclined to accept the contention of Mr. Ghosh that the petitioners had waived their right, even if any, to execute the construction works on the strength of a deemed sanction under Rule 56 and in such circumstances, the Corporation was quite competent to consider the application for sanction of the building plan on merit and pass appropriate orders on the same.

10. In view of my aforesaid findings that the petitioners are not entitled tothe benefit of a deemed sanction under Rule 56 for not furnishing relevant particulars at the time of making the application and that in any event, the petitioners had waived their right, if any, under a deemed sanction and had, in fact, invited the authorities of the Corporation of Calcutta to accord sanction on consideration of the application on merit, the impugned order rejecting the application under Rule 54 (4) is not without jurisdiction. In the aforesaid facts the issue of notice under Section 416 of the Act by the Corporation of Calcutta cannot be held to be illegal or without jurisdiction. It is not necessary in the instant case to decide as to whether the adjudication of the Corporation of Calcutta on merit on the said application for sanction of the building plan was correct or not because there are serious disputes on the factual aspects relating to the proposed construction of the building involving technical knowledge and it is neither feasible nor desirable that the Writ Court should consider the respective contentions of the parties about the said disputed questions of fact and decide such facts. It may be noted in this connection that during the pendency of the Rule, with the leave of the Court and without prejudice to the right and contentions of the parties in the Rule, further discussions were held between the architect of the petitioners and the city architect of the Calcutta Corporation to solve the disputes as to infringement of the Act and the Rules on account of the proposed building but unfortunately some basic objections of the Corporation still remain disputed. Apart from this, against the rejection of the plan on merit, the petitioners were entitled to avail of other alternative remedy and in such circumstances, interference by the Constitutional Writ jurisdiction is also not warranted. It is really unfortunate that the petitioners have incurred considerable expenses in procuring the land and making some foundation works and they are seriously prejudiced for the rejection of the plan but despite my sympathies for the petitioners, no relief can be given in the instant Rule. The Rule, therefore, fails and is discharged but, in the facts of the case, I make no order as to costs.


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