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Dinesh Chandra Banerjee and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 428 of 1968
Judge
Reported inAIR1976Cal44
ActsCalcutta Municipalities Act, 1951 - Sections 378 to 380; ;Calcutta Municipalities Rules - Rule 51, 51(1) and 51(2)
AppellantDinesh Chandra Banerjee and ors.
RespondentCorporation of Calcutta and ors.
DispositionApplication dismissed
Excerpt:
- ordersabyasachi mukharji, j. 1. this is an application by seven petitioners who are licensed building surveyors, in their representative capacity against the corporation of calcutta under article 226 of the constitution. the petitioners challenge the letter dated 31st may. 1968, issued by the city architect, corporation of calcutta. by the said letter the licensed building surveyors were informed, inter alia, as follows: 'the following system for the improvement of working in the plan section of the city architect's department as has been approved by the corporation at its meeting held on 25-3-1968 will be given effect to on and from 26-6-1968 forenoon. the revised building application form as approved by the corporation referred above would be available from the office of the city.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This is an application by seven petitioners who are Licensed Building Surveyors, in their representative capacity against the Corporation of Calcutta under Article 226 of the Constitution. The petitioners challenge the letter dated 31st May. 1968, issued by the City Architect, Corporation of Calcutta. By the said letter the Licensed Building Surveyors were informed, inter alia, as follows:

'The following system for the improvement of working in the plan section of the City Architect's department as has been approved by the Corporation at its meeting held on 25-3-1968 will be given effect to on and from 26-6-1968 forenoon. The revised building application form as approved by the Corporation referred above would be available from the office of the City Architect free of charge between the normal office hours.'

2. I will refer to the relevant application form that was in practice before the introduction of the new system and the new application form with additional particulars that are required to be filled in by the impugned letter. Before I do that, it is necessary to refer to the relevant provisions of the Calcutta Municipal Act. The relevant provisions of the said Act are Sections 378 to 380 which are to the following effect:

'378. (1) The Commissioner may from time to time, in accordance with such rules as may be made by the Corporation, grant to any person he thinks fit a license to act as a licensed building surveyor for the purposes of this Chapter.

(2) The Corporation may prescribe the qualifications to be required of persons to whom licenses may be granted under Sub-section (1) in respect of the several classes of buildings.

(3) Every such license shall be for a renewable period of three years.

379. (1) The Corporation may make rules for the guidance of licensed building surveyors, and a copy of all such rules, for the time being in force, shall be written on the back of every license granted under Section 378.

(2) the Corporation may from time to time prescribe a scale of fees of licensed building surveyors in respect of any class of buildings, to be made applicable in the absence of a written contract to the contrary.

380. The Commissioner may decline to accept any plan, elevation or section, submitted with any application for permission to erect a new building, unless such plan, elevation or section has been prepared by, and bears the signature of, a licensed building surveyor.'

It is also relevant to refer to Rule 532 which is to the following effect:

'532. (1) The State Government may, on the recommendation of the Corporation, by rules alter, add to or cancel any part of, or any rule contained in, any Schedule except Schedule I.

(2) All references in this Act to any schedule which may be amended under this section shall be construed as references to such schedule as for the time being so amended.'

Rule 51 of Schedule XVI inter alia provides as follows:

'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-

(a) * * *(b) * * *(c) * * *(d) * * *(e) * * *(f) * * *(g) * * *(h) * * *(i) * * *(j) * * * (k) * * * (l) such other particulars as may beprescribed by the Corporation.'

3. The old application form before the impugned system was introduced, a copy whereof is at page 23 of the petition, had to be signed by the owner 4andhad to Rive certain specifications and it had to be supported by site plan and such, plan had to be signed by the Licensed Building Surveyor. In the new application form certain certificates are required to be procured from various departments, for example. Chief Valuer and Surveyor, Calcutta Corporation, Chief Valuer & Surveyor, Calcutta Improvement Trust, Executive Engineer. Water Works, Calcutta Corporation, Borough Engr., Calcutta Corporation, Executive Engineer. Drainage Department. Calcutta Corporation, Indian Posts and Telegraphs Department (including Telephones). Government of India. Calcutta Electric Supply Corporation Ltd., Oriental Gas Co. Ltd., Director of Fire Services, Government of West Bengal. Commissioner for the Port of Calcutta, Garrison Engineer. Fort William, Commissioner of Police, Theatre Inspector, Corporation of Calcutta and it is enjoined that the Licensed Building Surveyor should particularly see the references are filled in properly. The application form, however, even under the new system is required to be signed by the owner only, But in the schedule annexed to the application form, there are certain particulars which are required to be given and these particulars are required to be signed both by the owner and Licensed Building Surveyor, Thereafter, certain declarations have to be given, for example, that no inflammable material for roofs and external walls have been used, that all brick walls shall be properly bounded and these statements are required to be specified as correct that there is no misrepresentation. These particulars are required to be signed both by the owner and the building surveyor.

4 It was contended on behalf of the applicants that the particulars which were required to be furnished by the annexure to the application for sanction were really imposition of duties upon the licensed building surveyors and not merely specification of more particulars required to be given to the plan or to the application. It was, therefore, submitted that the Corporation of Calcutta has no right or authority or power under Sections 378 to 380 of the Calcutta Municipal Act, 1951, as well as Rules 50 and 51 of Schedule XVI to impose additional duties on the buildings surveyors without rules being framed under Section 532 of the Act It was submitted that Section 380 made it clear that plans were different from the application forms. Reading the provisions of Sections 378 to 380 together, it appears to me that the Corporation has the power to specify the particulars as indicated to be filled in in the application for sanction of a building plan, it is true that a new obligation has been imposed to give certain particulars in the plan for sanction but these obligations are really enforcementof additional particulars and for the verification of the correctness of additional particulars under Rule 51 (1) under Sub-rule (2) of Rule 51 the other particulars have been required to be given and the fact that these are required to be given in the application to ensure that these are correct particulars by verification of the licensed building surveyor, does not, in my opinion, impose any additional duties which the Corporation was not competent to impose by virtue of powers under Sections 378 to 380 of the Act. In the aforesaid view of the matter. I am of the opinion that the impugned letter was not beyond the power of the Corporation or ultra vires the powers of the Corporation of Calcutta.

5. In the premises, this application fails and is accordingly dismissed. There will be no order as to cost of this application. Interim order is vacated. There will be a stay of operation of this order for six weeks.


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