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High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE , A. K. CHAKRAVARTY
CIRCULAR PROPERTIES (P) LIMITED - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
F. M. A. T. 1223 Of 1995
Decided On : 11/03/1995
EXTENSION OF SANCTIONED PLAN - CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - SECTION 399 - CALCUTTA MUNICIPAL CORPORATION RULES, 1990 - RULE 62A - CIRCULAR NOS. 4 AND 9 OF 1994-95 - INTERIM ORDER OF INJUNCTION - INCOME-TAX ACT, 1961 - SECTION 269UD(1) - ACTUS LEGIS NEMINI EST DAMNOSUS - ACTUS CURIAE NEMINEM GRAVABIT - CONTEMPORARY EXPOSITION - HOSTILE DISCRIMINATION - FAIRNESS AND REASONABLENESS - JUDICIAL REVIEW - RIGHT TO PROPERTY - UNJUST ENRICHMENT - UNJUSTIFICATION INCONVENIENCE.
Fact of the Case:
The appellant, Williamson and Magor Co. Ltd., obtained sanction for a building plan from the Calcutta Municipal Corporation in 1985, with a validity period of five years. However, due to an interim injunction issued by the court in 1987, the appellant was prevented from commencing construction within the validity period. After the injunction was lifted in 1993, the appellant applied for an extension of time to complete the construction. The Municipal Commissioner refused the extension, citing a circular that restricted the extension of validity to plans sanctioned under the Calcutta Municipal Corporation Rules, 1990, which came into force after the appellant's plan was sanctioned. The appellant challenged this decision in the Calcutta High Court.
Finding of the Court:
The Calcutta High Court held that the Municipal Commissioner had the power to grant an extension of time under Section 399 of the Calcutta Municipal Corporation Act, 1980, even if the original plan was sanctioned under the previous Act of 1951. The court found that the Municipal Commissioner's refusal to grant an extension was discriminatory, as the Commissioner had granted extensions in similar cases. The court also held that the appellant was entitled to an extension of time because they were prevented from constructing due to an act of law (the interim injunction) and an act of the court. The court directed the Municipal Commissioner to renew and extend the period for completing the construction.
Issues: 1. Whether the Municipal Commissioner has the power to grant an extension of time for completing a construction under Section 399 of the Calcutta Municipal Corporation Act, 1980, even if the original plan was sanctioned under the previous Act of 1951? 2. Whether the Municipal Commissioner's refusal to grant an extension was discriminatory? 3. Whether the appellant is entitled to an extension of time because they were prevented from constructing due to an act of law and an act of the court?
Ratio Decidendi: 1. The court held that Section 399 of the Calcutta Municipal Corporation Act, 1980, gives the Municipal Commissioner the power to grant an extension of time for completing a construction, even if the original plan was sanctioned under the previous Act of 1951. The court found that the statute does not provide any time limit for the initial grant of time or for the extension thereof, and that the Municipal Commissioner has the discretion to determine what would be a reasonable period for completing the construction. 2. The court held that the Municipal Commissioner's refusal to grant an extension was discriminatory, as the Commissioner had granted extensions in similar cases. The court found that the Municipal Commissioner did not have any uncontrolled and unguided power to refuse to grant an extension, and that the Commissioner could not act arbitrarily or capriciously. 3. The court held that the appellant was entitled to an extension of time because they were prevented from constructing due to an act of law (the interim injunction) and an act of the court. The court found that the appellant was not at fault for the delay in completing the construction, and that it would be unjust to deny them an extension of time.
Final Decision: The Calcutta High Court allowed the appeal and directed the Municipal Commissioner to renew and extend the period for completing the construction.
( 1 ) THIS is an appeal against the order dated 25 April 1995, passed by the learned trial Judge, disposing of the writ application, directing the Municipal Authorities to consider and dispose of the application filed by the appellant for extension of the period of the sanctioned plan. The facts of this case is briefly stated as follows :- the Appellant No. 3, Williamson and Magor Co. Ltd. as owner of premises No. 22, Camac Street, Calcutta, applied for and obtained sanction of a plan from the Calcutta Municipal Corporation for construction of a building. The said plan was sanctioned on 8th April, 1985. The validity period of the said sanctioned plan was up to 7th April, 1990.
( 2 ) IT is stated that after obtaining the sanction of the said plan, works for erection of the building as per the said plan was commenced by starting soil work, through a firm of Foundation Consultants, namely Technical Consultancy Services, with effect from 22nd January, 1986, and in respect of which, intimation was given to the City Architect by a letter dated 15th January, 1986.
( 3 ) ON 5th March, 1986, Williamson and Magor Co. Ltd. appointed the appellant No. 1, Circular Properties Pvt. Ltd. , as contractor for construction of the building and the City Architect was informed by the letter dated 5th March, 1986, regarding the awarding of such contract and that the work would be commenced by the said contractor from 7th March, 1986.
( 4 ) IT is further stated that the appellant No. 1, Circular Properties Pvt. Ltd. , started work from 7th March, 1986. Excavation, Mud-mat dressing, Raft Foundation were done on a portion of the said land.
( 5 ) IT is a case of the appellant that the further progress of the work was disrupted as a notice dated. . . . . . . , under Section 269-UD (1) of the Income-tax Act, 1961, was served in January 1987. By the said notice, the Income-tax Authority intended to pre-emptive 3 purchase of the said premises by the Central Government. In other words, by exercise of that section, the Central Government decided to opt for purchase of the said property.
( 6 ) THE Williamson and Magor Co. Ltd. , (then known as Moneill and Magor Ltd.) challenged the said order and the notice of the Income-tax Department in a Writ proceeding filed in this Court on 5 February 1987, whereupon this Court, on contested hearing, was pleased to issue a rule and pass an interim order to the extent that the transferor was restrained from making any construction or taking any action as per sanctioned plan in view of the provisions under the Income-tax Act. The transferor was also restrained from making any addition or alteration to the nature and character of the property.
( 7 ) AS a result of the issue of the notice under Section 269ud (1), as well as the consequent interim order and injunction passed by this Court, the appellants were prevented from carrying out any further work on the basis of the said sanctioned plan and within the validity period of the said sanction.
( 8 ) THE said writ application, challenging the validity of the notice under Section 269ud (1) of the Income-tax Act, 196l, was finally disposed of by an order dated 14 January, 1993, passed by the Hon'ble Justice Suhash Chandra Sen (as His Lordship then was ). By that order, the order of the Income-tax Department, issued under that section, was quashed and the Income-tax Authority was given liberty to consider the matter afresh and pass order and to decide whether they would take over the property. The order further provided that if the appropriate authority failed to pass any order by 15 March 1993, for taking over the property, they should issue a ' no objection certificate' in favour of the owner, appellant Williamson and Magor Co. Ltd. The Income-tax Authorities did not issue any fresh order and on the contrary issued the 'no objection certificate' on 12 March, 1993.
( 9 ) AFTER the 'no objection certificate' was issued by the Income-tax Aut
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