Skip to content


Sm. Pratima Sarkar Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 602 of 1970
Judge
Reported inAIR1973Cal434
ActsArbitration Act, 1940 - Sections 5, 14, 21 and 30; ;Calcutta Municipal Act, 1951; ;Calcutta Municipal Rules, 1951 - Rules 3, 3(1) and 58
AppellantSm. Pratima Sarkar
RespondentCorporation of Calcutta and ors.
Appellant AdvocateB.C. Dutta and ;S.K. Bhattacharya, Advs.
Respondent AdvocateBhabani Sankar Bagchi and ;Alokendu Mukherjee, Advs. for Nos. 1 to 4, ;Sunil Kumar Basu and ;Probodh Ranjan Das, Advs. for No. 5
DispositionAppeal dismissed
Cases Referred and Kanahyalal Ruja v. Corporation of Calcutta
Excerpt:
- .....of the corporation of calcutta in place of shri bhattacharyya. by an order dated march 25, 1969, shri guha was substituted in place of shri bhattacharyya.3. when the rule came up for hearing before the trial court on march 26, 1969, the parties agreed that in view of the nature of the dispute the matter should be referred to the respondent no. 3 and they further agreed that the decision of the respondent no. 3 would be binding upon them. tile learned judge in the trial court recorded the following order:--'26-3-69. after the learned advocates for either side were heard for sometime, both parties agreed that owing to the technical nature of the dispute involved in this case it would be better to have all the questions of dispute between the parties decided by the commissioner of the.....
Judgment:

Janah, J.

1. This appeal arises out of a judgment and order dated August 14, 1969, discharging the rule obtained by the appellant and the respondent No. 6 of the present appeal, under Article 226 of the Constitution of India. The appellant and the respondent No. 6 alleged that they were the recorded owners of premises Nos. 29-B and 29-C Gariahat Road, respectively, while the respondent No. 5 was the recorded owner of premises No. 14/A/1, Gariahat Road (hereinafter referred to as the disputed premises). Premises Nos. 29-B and 29-C Gariahat Road are to the adjacent north of the disputed premises belonging to the respondent No. 5. According to them the building on the disputed premises was a one-storied brick built structure till February, 1967, when they came to know that the respondent No. 5 was constructing the second and the third storey over the existing structure on the disputed premises. They alleged that the disputed premises abuts a common passage about 8' wide, and so according to the Building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951, the respondent No. 5 was entitled to have only a one storied house on the said plot of land. It was further alleged that the plan for the proposed construction sanctioned by the Corporation of Calcutta was in violation of Rules 3, 29, 30, 32, 33 and 50 of Schedule XVI of the Calcutta Municipal Act, 1951. On these allegations the appellant and the respondent No. 6 who were the petitioners before the Trial Court prayed for an order restraining the respondents, the Corporation of Calcutta, its officers, and the respondent No. 5 from giving effect to or from proceeding with the construction on the disputed premises in accordance with the sanctioned plan.

2. The respondents Nos. 1 to 4 as well as the respondent No. 5 denied that the plan for the proposed construction on the disputed premises was sanctioned in violation of the rules, and asserted that the sanction accorded by the Corporation of Calcutta was perfectly legal and valid. The respondent No. 5 further alleged that the application filed by the appellant and the respondent No. 6 under Article 226 of the Constitution was not a bona fide application, and she referred to certain facts in support of her said allegation. In the application under Article 226 of the Constitution the Commissioner of the Corporation of Calcutta was impleaded as the respondent No. 2. The Commissioner was also impleaded in his personal capacity, and Shri R. K. Bhattacharyya who was the then Commissioner of the Corporation of Calcutta, was impleaded as respondent No. 3. While the matter was pending in the Trial Court Shri Priyo Guha was appointed as the Commissioner of the Corporation of Calcutta in place of Shri Bhattacharyya. By an order dated March 25, 1969, Shri Guha was substituted in place of Shri Bhattacharyya.

3. When the Rule came up for hearing before the Trial Court on March 26, 1969, the parties agreed that in view of the nature of the dispute the matter should be referred to the respondent No. 3 and they further agreed that the decision of the respondent No. 3 would be binding upon them. Tile learned Judge in the Trial Court recorded the following order:--

'26-3-69. After the learned Advocates for either side were heard for sometime, both parties agreed that owing to the technical nature of the dispute involved in this case it would be better to have all the questions of dispute between the parties decided by the Commissioner of the Corporation of Calcutta, who is respondent No. 3, on the spot by an enquiry to be held in presence of both the parties on the 7th of April, 1969, and to submit his decision to this court by the 18th April, 1969. It is agreed between the parties that the decision of the Commissioner would be binding on both the parties.'

Thereafter the respondent No. 3 Shri Guha submitted a report on April 19, 1969, after making a local inspection, and the matter came up for consideration before the Trial Court on April 25, 1969. At the hearing on that day an objection was taken by the learned Advocate appearing for the appellant (petitioner No. 1) to the effect that as the matter had been referred to the Commissioner of the Corporation of Calcutta and as Shri Guha had ceased to be the Commissioner on account of a Chief Executive Officer being appointed in place of the Commissioner and Shri Guha being reverted to the post of Deputy Commissioner, his report should not be accepted and should not be considered by the Court. Learned Advocate appearing on behalf of the respondent No. 5, on the other hand, contended that all proceedings before the respondent No. 3 had been completed before he relinquished charge of his office as the Commissioner and only the submission of the report was pending. The learned Judge passed an order on that day to the effect that the respondent No. 3 would file his report and the parties would be at liberty to agitate at the final hearing of the rule the point as to whether the report of Shri Guha should be considered or not. Shri Guha submitted his report on April 28, 1969, and thereafter the rule came up for hearing on May 29, 1969. On that day learned Advocate for the appellant took an objection that the inspection was made by Shri Guha in the absence of the appellant or anybody on her behalf. The learned Judge upheld this objection and directed that Shri Guha would again visit the disputed premises and take fresh measurements in presence of the nominee of the appellant and would submit a supplementary report containing his findings on such fresh measurements being taken. In pursuance of the said order a fresh inspection was made of the disputed premises by Shri Guha on July 20, 1969, in the presence of several persons, one of whom was the husband of the appellant and the other was Shri Dinesh Chandra Banerjee, an ex-City Architect of the Corporation of Calcutta, who was engaged by the appellant. Shri Guha filed a supplementary report on July 24, 1969 and thereafter the Rule came up for final hearing on August 14, 1969, before D. Basu, J. The learned Judge accepted the report submitted by Shri Guha and negatived the contention of the appellant that as Shri Guha had ceased to be the Commissioner of the Corporation of Calcutta before he submitted his report that his report could not be considered by the Court. Relying upon the report submitted by respondent No. 3 the learned Judge came to the conclusion that there was no violation of the building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951. The learned Judge was also of the opinion that when the parties agreed to refer the dispute to the arbitration of the respondent No. 3 and agreed to accept the decision of the respondent No. 3 as binding between them they could not be permitted to resile from that position. Upon this view the learned Judge discharged the rule.

4. Mr. Bankim Chandra Dutt,, learned Advocate appearing on behalf of the appellant at first canvassed before us the objection about the violation of the Building Rules with reference to all the Building Rules mentioned in the petition before the Trial Court, namely, rules 3, 29, 30, 32, 33 and 50 of Schedule XVI to the Calcutta Municipal Act, 1951. But ultimately Mr. Dutt gave up his client's case with regard to the alleged violation of the rules, except Rule 3 which relates to the height upto which a building can be constructed.

5. The first ground of attack of Mr. Dutt against the decision of the Trial Court is that the learned Judge in the Trial Court proceeded to treat the report of Shri Guha, the respondent No. 3, as an award made by an arbitrator. The first branch of his argument in this behalf is that in order to make a reference to an arbitrator in a pending proceeding that proceeding must be a suit. In the present case the dispute between the parties formed the subject-matter of an application under Article 226 of the Constitution. The contention of Mr. Dutt is that an application under Article 226 of the Constitution is not a suit and therefore Section 21 of the Arbitration Act, 1940 had no application. He relied upon several derisions in support of this contention but it is not necessary for us to refer to those decisions. The next branch of argument of Mr. Dutt in this regard has been that even assuming that an application under Article 226 of the Constitution is a suit, Section 21 of the Arbitration Act had no application because in the present case there was no application in writing by the parties to the Court and there was no order of reference by the Court. He contended further that in order to be a valid reference all the parties must join but here all the parties did not join, and lastly, the award must be filed in Court. Mr. Dutt accordingly argued that in the present case there could not be, and there was no valid reference to arbitration. In our view this contention of Mr. Dutt must be upheld. But even though there was no valid reference to arbitration and even though the report submitted by Shri Guha may not be an award by an arbitrator the point to be considered in the present case, in our opinion, is whether in view of the stand taken by the appellant in the Trial Court to have the dispute settled on the basis of the report which was to be submitted by the respondent No. 3 she should now be allowed to resile from that position.

6. In order to get over this difficulty learned Advocate for the appellant has argued that what his client agreed to is that the inspection was to be held and the report was to be submitted by the Commissioner of the Corporation of Calcutta. According to him when the report was submitted by Shri Guha he ceased to be Commissioner and therefore his report could not be considered by the Court. In order to test this argument we have to look into the order dated March 26, 1969 which was passed by consent of parties. By that order it was recorded that 'owing to the technical nature of the dispute involved in this case it would be better to have all the questions in dispute between the parties decided by the Commissioner of the Corporation of Calcutta, who is respondent No. 3 on the spot by an enquiry.............'. There is no dispute between the parties that Shri Guha who was substituted in place of the Original respondent No. 3 as the Commissioner of the Corporation of Calcutta was the ex-City Architect of the Corporation of Calcutta. Therefore he had the necessary technical qualification to make an enquiry into the points of dispute between the parties. Mr. Dutt emphasised upon the words 'Commissioner of the Corporation of Calcutta' in the order dated March 26, 1969. In our opinion the emphasis should be upon the words and figure 'who is respondent No. 3' appearing immediately after the words 'Commissioner of the Corporation of Calcuttta' in the said order. It is to be noticed that the Commissioner of the Corporation of Calcutta was impleaded in his official capacity as respondent No. 2. He was also impleaded in his personal capacity as respondent No. 3. If the parties wanted the Commissioner to hold the inspection and to submit a report then it is reasonable to expect that they would have selected the respondent No. 2 and not the respondent No. 3. In our opinion, therefore, Shri Privo Guha who was at the relevant time holding the office of the Commissioner of the Corporation of Calcutta, was selected by the parties on account of his technical qualifications. The objection taken by Mr. Dutt in this regard is, therefore, overruled. We accordingly hold, that having been a party to the consent order passed on March 26. 1969 the appellant cannot now be permitted to ask the Court not to consider the report submitted by Shri Guha, unless of course, she can show that the report is mala fide. No material has, however, been placed before us by the appellant to show that the report submitted by Shri Guha is mala fide.

7. The next argument of Mr. Dutt relates to the violation of Rule 3 of Schedule XVI to the Calcutta Municipal Act, 1951. Rule 3 relates to the height upto which a building can be constructed on a building site. It is admitted by both parties that the disputed premises is a Tandem site.

There is also no dispute between the parties that the disputed plot is accessible by a 8' wide private passage from the 12' wide Corporation Road to the south of the disputed plot. According to Mr. Dutt the sanctioned plan offends the provision of Sub-rule (1) of Rule 3 of Schedule XVI of the Calcutta Municipal Act, 1951. Sub-rule (1) of Rule 3 is as follows:--

'3 (1) If a building is situated at the side of a street no portion of the building except open or balustraded parapets not more than 1 metre and 20 centimetre high shall intersect any of a series of an imaginary line drawn across the street at an angle of fifty-three degrees with the horizontal, such lines being drawn from the side of the street which is the more remote from the building in question from a height of sixty centimetres above the centre of the street.'

Mr. Dutt contends that although the disputed plot does not abut the 12' wide Corporation Road, which is intervened by another plot of land, the disputed plot should be deemed to be abutting the Corporation Road, and in that case if the provision of Sub-rule (1) of Rule 3 is applied then the sanctioned plan offends the provisions of the said Sub-rule. Sub-rule (1) of Rule 3 has several provisos but none of these provisos are applicable in the present case nor are the other Sub-rules of Rule 3 applicable in the present case. According to Mr. Dutt Rule 3 does not contemplate any building which is not abutting a road and, therefore, when Sub-rule (1) speaks of a building at the side of a street the disputed premises although not situated at the side of a street should be deemed to be so. Mr. Dutt argues that if this interpretation is not put upon Sub-rule (1) of Rule 3 then the result would be that a person having a building site on the side of a narrow street will be restricted to a lower height in constructing a building on that site, but a person whose building site is far removed from that street and is accessible by a common passage would be entitled to build a much higher building. This apparent anomalous position as suggested by Mr. Dutt will not however arise if we consider the other provisions of the Calcutta Municipal Act. The proviso to Sub-rule (4) of Rule 30 is as follows:

'Provided that in the case of a Tandem site, the back of a building shall be deemed to be that face of the building which is along the lesser dimension of the site and the furthest removed from the street from which the site has access 'Street' as defined in Clause 71 of Section 5 of the Act means a public or private street. 'Public street' as defined in Clause 60 of Section 5 means 'any street, road, lane, gully, alley, passage, pathway, square or court, whether a thoroughfare or not, over which the public have a right of way ...... .....................' and 'Private Street' as defined in Clause 57 of Section 5 means 'any street, road, lane, gully, alley, passage or square which is not a public street as defined in this section, and includes any passage securing access to four or more premises belonging to the same or different owners. .................,...' It would thus appear thateven though a tandem site which may be far removed from a public street but if it is accessible by a private street then it will be taken as facing that private street for the purpose of Sub-rule (1) of Rule 3, and in that case, the height of a building on that site cannot go upto any length as suggested by Mr. Dutt. Moreover under proviso (iii) to Sub-rule (1) of Rule 3 no building exceeding thirty six metres in height can be erected without the special permission of the Corporation of Calcutta.

8. It appears from the report of Shri Guha (at page 77 of the paper-book) that the furthest end of the 12 feet wide Corporation road from the building on the disputed plot is about 50 feet away. This statement in the report has not been challenged before us. Shri Guha has stated in his report that the disputed premises can, therefore, have a building of much greater height than what has been proposed. Mr. Dutt argues that this statement of Shri Guha is not correct because, according to Mr. Dutt, the intervening space of 50 feet cannot be taken into consideration for the purpose of determining the height of the building, which, in the facts of the present case, according to Mr. Dutt, must be deemed to be abutting the said 12 feet wide road. We are unable to interpret Sub-rule (1) of Rule 3 the way Mr. Dutt wants us to do, because, in that case, the opening words of the Sub-rule, namely, 'If a building is situated at the side of a street' would be superfluous, inasmuch as every building, according to such an interpretation, must necessarily be situated at the side of a street. We accordingly hold that the intervening space of 50 feet between the building on the disputed plot and the 12 feet wide Corporation road to its South has been rightly taken into account by Shri Guha in determining the height of the building.

9. This brings us to the last contention urged by Mr. Dutt in support of this appeal. He contends that his client being the owner of the adjoining premises and who was going to be injuriously affected, was entitled to a notice and a hearing before the plan for the proposed building on the disputed premises could be sanctioned by the respondent No. 1. In support of this contention he relied upon the decisions of this Court in In re Sm. Lakshmimoni Dassi, 45 Cal WN 401 = (AIR 1941 Cal 391); Hirendra Nath Dutta v. The Corporation of Calcutta, 45 Cal WN 413 = (AIR 1941 Cal 386); A. C. Mohamed v. Corporation of Calcutta, 45 Cal WN 408; Kanai Lal Paul v. Corporation of Calcutta, (1964) 68 Cal WN 1049; Krishna Kali Mallik v. Babulal Shaw, : AIR1965Cal148 and Kanahyalal Ruja v. Corporation of Calcutta, (1951) 88 Cal LJ 78. We are unable to see how these decisions are of any help to Mr. Dutt. In all these cases it was found that the constructions alleged, were in violation of the Building Rules and it was held in the said cases that the person aggrieved therefore had a right to pray for an injunction in a suit or for a Writ of Mandamus in an application under Section 45 of the Specific Relief Act, 1877, or for a similar Writ under Article 226 of the Constitution. In none of these cases, except in the case reported in (1964) 68 Cal WN 1049 it was held that the aggrieved party had a right to get a notice or a right of hearing prior to the plan for a proposed building being sanctioned by the Corporation of Calcutta. All that was held in the said cases is that if the construction is made, or the plan is sanctioned, in violation of the Rules the aggrieved party had a right which was enforceable in law. It is only in the case reported in 68 Cal WN 1049 that it was held, in the facts of that case, that the person who was going to be affected by the proposed construction in accordance with the plan sanctioned by the Corporation of Calcutta in violation of the Rules, was entitled to a notice and a hearing. The facts of that case in our view, were completely different and observations made in that decision cannot have any general application to all cases. In that case a purchaser of a portion of a holding, which itself was a part of a larger holding, and which came into being as a result of partition between the heirs of the original owner, applied for sanction of a plan of a building which he proposed to construct upon the portion purchased by him. The proposed building affected the owner of the adjoining building. The said plan was, at first, rejected by the department of the Corporation of Calcutta on the ground that it was in violation of some of the Building Rules. The petitioner in that case who was going to be affected by the proposed construction came to know about the submission of the plan by the purchaser, and he made a complaint to the Corporation of Calcutta that the plan which had been submitted for sanction was contrary to law, and therefore, it should not be sanctioned, and notice of hearing should be given to him when the plan was placed before the Standing Building Committee for sanction. In spite of this, the plan was placed before the Standing building Committee without any notice to him and it was sanctioned, although the recommendation of the Building Department was to the effect that no sanction should be given. It was in the background of these facts that it was held that the petitioner had a right of hearing before the plan could be sanctioned. It was also held that whether in the case of an administrative order notice is necessary to be given, depends on the facts of each case. In our case we have already found that the plan, sanction of which was asked for, by the respondent No. 5, did not violate any of the Rules under the Calcutta Municipal Act 1951. That being the position there was no question of any notice or any hearing being given to the appellant before the plan could be sanctioned by the respondent No. 1. Mr. Dutt has also not been able to place before us any provision of the Calcutta Municipal Act, 1951, which requires the Corporation of Calcutta to issue notices to the adjoining owners or to give them a hearing before a plan is sanctioned.

10. For the reasons mentioned above, this appeal fails, and it is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.

B.C. Mitra, J.

11. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //