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1990 Supreme(Cal) 27
High Court Of Calcutta
P. D. DESAI, AJIT KUMAR SENGUPTA
ATMARAM KANORIA - Appellant
Versus
L.K.R.PRASAD - Respondent
Matter 515 Of 1989
Decided On : 01/15/1990
A statute is not retrospective in operation merely because a part of the requisites for its action is drawn from a time antecedent to its passing.
Headnote:
CALCUTTA MUNICIPAL CORPORATION ACT - SECTION 398A - VALIDITY - PROSPECTIVE OPERATION - NO RETROSPECTIVE EFFECT - JUDICIAL DECISIONS - BINDING EFFECT - SANCTION OF BUILDING PLANS - DELAY - CONTEMPT PROCEEDINGS. The Calcutta Municipal Corporation (Amendment) Ordinance, 1989 (West Bengal Ordinance No. IX of 1989) inserted section 398A in the Calcutta Municipal Corporation Act, 1980. Section 398A(2) provided that any application for sanction of any plan to erect a building exceeding thirteen and a half meters in height, submitted by any person before the coming into force of the said Ordinance and lying pending for such sanction on the date of coming into force of the Ordinance, shall stand rejected forthwith. The petitioners had submitted Building Plans for sanction to the Calcutta Municipal Corporation. The Plans were accepted conditionally for further scrutiny. After some objections/requisitions were served upon the petitioners and complied with, the Municipal Building Committee raised further objections. The petitioners intimated that the matters raised had been taken care of and that they were prepared to give registered undertakings not to make any construction on a portion of the ground floor within its 5.9 meters height. Despite this, the Building Plans were not sanctioned. The petitioners filed a Writ Petition seeking a direction to the Corporation Authorities to forthwith sanction the Building Plans. The Trial Court passed an ad interim order staying the operation of the resolution of the Municipal Building Committee and appointed a Special Officer to assist in finding out whether the revised Building Plans submitted by the petitioners were in compliance with the Building Rules of the Calcutta Municipal Corporation. The Special Officer submitted a report and the Trial Court found that there could not be any objection on the part of the Corporation Authorities against sanctioning the Building Plans. The Corporation Authorities appealed against the decision, which was disposed of by the Division Bench. The Division Bench directed the Corporation Authorities to accord sanction to the revised Building Plans as expeditiously as possible and preferably within a period of two weeks from the date of communication of the order. The Corporation Authorities did not comply with the order. The petitioners filed a Contempt Petition praying that Rule Nisi be issued calling upon the respondents to show cause why they should not be committed to prison or be otherwise dealt with and/or punished for deliberate and willful violation and utter disregard of the directions issued in the judgment rendered by the Division Bench. The Corporation Authorities pleaded the Ordinance as coming in their way in granting sanction to the Building Plans in question despite the direction of the Division Bench. The Court held that section 398A operated prospectively and was not attracted on the facts and in the circumstances of the present case. The application for sanction of the Building Plans was made long before the said section was enacted and came into force. The right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Division Bench which still stood. The said right as well as the corresponding obligation acquired and incurred accordingly could not be disregarded or ignored by evoking the aid of sub-section (2) of section 398A which was inapplicable in such cases. Such right and/or obligation could not and was not intended to be taken away by sub-section (2) of section 398A. The Court directed the Corporation Authorities to implement the Writ in the course of the next week by issuing the sanction.
Fact of the Case:
The petitioners submitted Building Plans for sanction to the Calcutta Municipal Corporation. The Plans were accepted conditionally for further scrutiny. After some objections/requisitions were served upon the petitioners and complied with, the Municipal Building Committee raised further objections. The petitioners intimated that the matters raised had been taken care of and that they were prepared to give registered undertakings not to make any construction on a portion of the ground floor within its 5.9 meters height. Despite this, the Building Plans were not sanctioned. The petitioners filed a Writ Petition seeking a direction to the Corporation Authorities to forthwith sanction the Building Plans. The Trial Court passed an ad interim order staying the operation of the resolution of the Municipal Building Committee and appointed a Special Officer to assist in finding out whether the revised Building Plans submitted by the petitioners were in compliance with the Building Rules of the Calcutta Municipal Corporation. The Special Officer submitted a report and the Trial Court found that there could not be any objection on the part of the Corporation Authorities against sanctioning the Building Plans. The Corporation Authorities appealed against the decision, which was disposed of by the Division Bench. The Division Bench directed the Corporation Authorities to accord sanction to the revised Building Plans as expeditiously as possible and preferably within a period of two weeks from the date of communication of the order. The Corporation Authorities did not comply with the order. The petitioners filed a Contempt Petition praying that Rule Nisi be issued calling upon the respondents to show cause why they should not be committed to prison or be otherwise dealt with and/or punished for deliberate and willful violation and utter disregard of the directions issued in the judgment rendered by the Division Bench.
Finding of the Court:
The Court held that section 398A operated prospectively and was not attracted on the facts and in the circumstances of the present case. The application for sanction of the Building Plans was made long before the said section was enacted and came into force. The right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Division Bench which still stood. The said right as well as the corresponding obligation acquired and incurred accordingly could not be disregarded or ignored by evoking the aid of sub-section (2) of section 398A which was inapplicable in such cases. Such right and/or obligation could not and was not intended to be taken away by sub-section (2) of section 398A. The Court directed the Corporation Authorities to implement the Writ in the course of the next week by issuing the sanction.
Issues: Whether section 398A of the Calcutta Municipal Corporation Act, 1980, which provides that any application for sanction of any plan to erect a building exceeding thirteen and a half meters in height, submitted by any person before the coming into force of the said Ordinance and lying pending for such sanction on the date of coming into force of the Ordinance, shall stand rejected forthwith, is retrospective in operation and can be applied to a case where the application for sanction of the Building Plans was made long before the said section was enacted and came into force and the right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Division Bench which still stood.
Ratio Decidendi: The Court held that section 398A operated prospectively and was not attracted on the facts and in the circumstances of the present case. The application for sanction of the Building Plans was made long before the said section was enacted and came into force. The right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Division Bench which still stood. The said right as well as the corresponding obligation acquired and incurred accordingly could not be disregarded or ignored by evoking the aid of sub-section (2) of section 398A which was inapplicable in such cases. Such right and/or obligation could not and was not intended to be taken away by sub-section (2) of section 398A.
Final Decision: The Court directed the Corporation Authorities to implement the Writ in the course of the next week by issuing the sanction.
( 1 ) PER Chief Justice (Oral) - In order to appreciate the issues arising for decision in this Contempt Petition, it is necessary to set out the facts in some detail.
( 2 ) THE petitioners are the owners of a property being land with superstructures bearing premises No 14, Ballygunge Park, Calcutta. They intended to demolish the existing superstructures and to raise a twelve storied residential building on the said premises. They, therefore, submitted the requisite sets of Budding Plans for sanction to the Calcutta Municipal Corporation, hereinafter referred to as "the Corporation Authorities", on or about August 26, 1987. The Building Plans were "accepted conditionally for further scrutiny" subject to certain conditions by the Corporation Authorities. From time to time thereafter certain objections/requisitions were served upon the petitioners and they are stated to have been duly complied with by the submission of revised Building Plans, whenever necessary or required.
( 3 ) IT is the case of the petitioners that the matter ultimately went up to the Municipal Building Committee which raised certain additional points and required certain further modifications being carried out in the Building Plans. In order to avoid dispute and delay, according to the petitioners, they submitted further revised Building Plans. Once again, however, the Municipal Building Committee raised further objections which were communicated to the petitioners. They thereupon intimated that the matters raised by the Municipal Building Committee had already been taken care of and that, if necessary, they were prepared to give registered undertakings not to make any construction on a portion of the ground floor within its 5. 9 meters height.
( 4 ) DESPITE intimation given as aforesaid the Building Plans were not being sanctioned and that gave rise to a Writ Petition (Matter No. 515 of 1989 -Atmaram Kanoria and Ors v. The Calcutta Municipal Corporation and Ors.) moved by the petitioners on January 24, 1989 seeking the relief, inter alia, in the nature of a direction to the Corporation Authorities to forthwith sanction the Building Plans submitted by the petitioners upon their producing the permission and/or clearance certificate from the Urban Land Ceiling Authorities under the Urban Land (Ceiling and Regulation) Act, 1976 and without giving effect to the resolution passed by the Municipal Building Committee as communicated to them. The Trial Court passed an ad interim order on that day staying the operation of the resolution of the Municipal Building Committee as communicated to the petitioners and at the same time appointed a Special Officer with liberty to engage the services of an Architect chosen from out of the panel maintained by the High Court to assist in finding out whether the revised Building Plans submitted by the petitioners in respect of the proposed multi-storied building were in compliance with the Building Rules of the Calcutta Municipal Corporation. Certain further directions of an incidental nature were also issued The Special Officer was directed to submit a report within ten days from date. The Special Officer submitted a report as directed and the matter was finally heard on February 7, 1989. The Trial Court found upon scrutiny of the said report, that there could not be any objection on the part of the Corporation Authorities against sanctioning the Building Plans which were the subject matter of the Writ Petition. Accordingly, the Writ Petition was allowed and the Corporation Authorities were directed to sanction the Building Plans within three weeks from the date of communication of the order
( 5 ) THE Calcutta Municipal Corporation and others preferred an appeal against the said decision which came to be finally disposed of on May 18, 1989 by the Division Bench. The material part of the judgment disposing of the appeal reads as follows:"the writ petitioners, respondents Nos. 1, 2 and 3 her
