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HIGH COURT OF CALCUTTA
B. C. MITRA, JANAH AND SHARMA
PRATIMA SARKAR - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
FMA 602 Of 1970
Decided On : JUNE 05, 1973
CALCUTTA MUNICIPAL ACT, 1951 - BUILDING RULES - SCHEDULE XVI - RULE 3 - HEIGHT OF BUILDING - INTERPRETATION - ADJOINING OWNER - NOTICE AND HEARING - RIGHT TO.
Fact of the Case:
The appellant and respondent No. 6, owners of premises adjacent to the disputed premises, alleged that the respondent No. 5 was constructing a second and third storey on the disputed premises in violation of the Building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951. They filed an application under Article 226 of the Constitution seeking an order to restrain the construction.
Finding of the Court:
The Trial Court referred the dispute to the Commissioner of the Corporation of Calcutta (respondent No. 3) for an on-site inspection and report. The Commissioner submitted a report finding no violation of the Building Rules. The Trial Court accepted the report and discharged the rule. The appellant challenged the decision on grounds of lack of valid reference to arbitration, violation of Rule 3 of Schedule XVI, and lack of notice and hearing before the plan was sanctioned.
Issues: 1. Whether the reference to the Commissioner of the Corporation of Calcutta constituted a valid arbitration. 2. Whether the sanctioned plan violated Rule 3 of Schedule XVI of the Calcutta Municipal Act, 1951. 3. Whether the appellant, as an adjoining owner, had a right to notice and hearing before the plan was sanctioned.
Ratio Decidendi: 1. The Court held that there was no valid reference to arbitration as there was no application in writing by the parties, no order of reference by the Court, and not all parties joined in the reference. 2. The Court interpreted Rule 3 of Schedule XVI and held that the disputed premises, being a Tandem site accessible by a private passage from a Corporation Road, should be deemed to be facing that private street for the purpose of determining the height of the building. The intervening space between the building and the Corporation Road was rightly considered in determining the height. 3. The Court held that the appellant, as an adjoining owner, had no right to notice or hearing before the plan was sanctioned, as the sanctioned plan did not violate any of the Rules under the Calcutta Municipal Act, 1951, and there was no provision in the Act requiring such notice or hearing.
Final Decision: The appeal was dismissed, and no order as to costs was made.
( 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 Tri
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