1. This is a second appeal preferred by the defendants from a decree of a learned Subordinate Judge who modified a decree of a learned Munsif passed partly in favour of the plaintiff.
2. The plaintiff who was the owner of a certain property wished to make certain constructions. This property was situate within the Municipality of Howrah. He submitted plans for the constructions to the Municipality of Howrah, but the Municipality neither approved nor rejected the application and plans within fifteen days. The plaintiff claimed under Rule 58 of Schedule 17 to the Calcutta Municipal Act, as extended to the Municipality of Howrah, that after the lapse of fifteen days he was entitled to proceed with the work. The Municipal Commissioners later refused to sanction these plans and the plaintiff brought a suit in the Court of the learned Munsif of Howrah in which he prayed for declaration that the plan filed by him on 20-1-1938 before the Municipal Commissioners was legal and in accordance with law and for a further declaration that the same should have been deemed to have been sanctioned by the Commissioners of the said Municipality. There was a further prayer for a permanent injunction restraining the Municipal Commissioners from demolishing a privy which had been erected apparently in accordance with these plans.
3. The learned Munsif decreed the suit in part giving the plaintiff a simple declaration that the plan filed on 20-1-1938, must be deemed to have been approved by the Commissioners of the Howrah Municipality. On appeal by the plaintiff the learned Subordinate Judge was of opinion that the plaintiff was entitled to further relief and he gave a further declaration that the plan submitted by the plaintiff was legal and intra vires. Both Courts, it will be observed, refused to grant an injunction.
4. On behalf of the Municipal Commissioners, who are the appellants in this appeal, it has been urged that the lower appellate Court was wrong in granting a further declaration that the plan submitted was legal and intra vires. The appellants do not object to the Munsif s declaration that the plan must be deemed to have been sanctioned.
5. I have some doubts whether a declaratory suit lies, but it is unnecessary to consider that having regard to the view of the appellants. I am perfectly satisfied, however, that nothing more could be given to the plaintiff in this case than what was given to him by the learned Munsif.
6. The matter is dealt with by Rule 58 of Schedule 17, Calcutta Municipal Act as extended to the Municipality of Howrah. That rule is in these terms:
If within the period prescribed by Rule 57 the Corporation have 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 bylaws made thereunder.
7. The time prescribed by Rule 57 is fifteen days and, therefore, if the Municipal Commissioners neither sanctioned nor rejected the plan in fifteen days, it will be deemed to have been approved. But quite clearly the approval is in a strictly limited form. The applicant must be deemed to be permitted to execute the work, but he cannot in so doing contravene any of the provisions of the Act or any of the rules or by-laws made thereunder. In short, the permission which the Municipal Commissioners are deemed to give is a permission to execute the work in accordance with the plan in so far as the plan complies with the Act and by-laws made thereunder. The fact that permission is deemed to be granted does not mean that the plan must be deemed to be in accordance with the Act and the by-laws made thereunder. It seems that this rule was drafted to prevent delays in the case of applicants who had been careful to comply with the Act and the bylaws. If the plan complied with the Act permission would be deemed to be granted in fifteen days. But the rule was never intended to cover plans which were clearly in contravention of the Act or the by-laws. In other words, where this permission is to be implied the person building will build according to the plan. If it transpires that his plan is contrary to the Act or contrary to the by-laws the implied permission will not save him. All that the plaintiff was entitled to in this case was a mere declaration that the permission must be deemed to have been granted as held by the learned Munsif.
8. In the result, therefore, the appeal is allowed, the decree of the lower appellate Court is set aside, and the decree of the learned Munsif is restored. The appellants are entitled to their costs in this Court and in the lower appellate Court.