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High Court Of Calcutta
A. N. RAY
TRIMPLEX INDUSTRIES PVT LTD - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Constitutional Writ Jurisdiction 573 Of 1991
Decided On : 06/26/1992
BUILDING RULES - SANCTION FOR BUILDING - Deemed approval of building plan - Interpretation of Rule 55 of Schedule XVI of Kolkata Municipal Corporation Act, 1980 - Held, where no express permission or refusal is communicated by the Municipal Commissioner within two months from the date of application, the application for sanction to build in accordance with the plan submitted stands approved by operation of law.
Fact of the Case:
The writ petitioner filed an application for a declaration that the building plan and application for sanction to build at 4a Woodburn Park, filed by the predecessor in interest of the writ petitioner with the Municipal Authorities stands approved by operation of law. On 25th February, 1988, one Smt. Ana Ghosh made an application for sanction to build after demolition of existing structures in relation to the land and premises in question. The requisite fees for the said application were also paid. On the 12th of December, 1990, new Building Rules replaced the earlier Building Rules which had formed Schedule XVI of the 1951 Act and which had been continued by the 1980 Act.
Finding of the Court:
The Court held that by operation of Rule 55 of Schedule XVI of the Kolkata Municipal Corporation Act, 1980, after a lapse of two months from 25th February, 1988, the application for sanction to build in accordance with the plan submitted stood approved by the Municipal Commissioner by operation of law. The Court further held that the deemed sanction of the plan must also in law be taken as so sanctioned as to be available to any owner builder, be it the first writ petitioner or be it any subsequent owner of the land subject, however, to compliance with the irrelaxable building rules which prevailed in April, 1988 or other rules, if any, which have been expressly (or by legally necessary implication) made applicable retrospectively to that period of time.
Issues: Whether the application for sanction to build in accordance with the plan submitted stood approved by operation of law after a lapse of two months from the date of application, where no express permission or refusal is communicated by the Municipal Commissioner.
Ratio Decidendi: The Court interpreted Rule 55 of Schedule XVI of the Kolkata Municipal Corporation Act, 1980, which provides that within two months after the receipt of any application for permission to execute any work, the Commissioner shall, by written order, either grant permission conditionally or unconditionally to execute the work, or refuse, on one or more of the grounds mentioned in rule 52, to grant such permission. The Court held that the rule contemplates two possibilities, namely, those of express permission and of express refusal of the application to build. The Court further held that in case the Municipal Commissioner makes no communication to the applicant either expressly granting permission or expressly refusing the same, the application for sanction to build in accordance with the plan submitted stands approved by operation of law.
Final Decision: The writ petition was allowed. It was declared that the first writ petitioner is entitled as the present owner of the land and premise in question to demolish, build, erect or re-erect in accordance with the application and plan tendered by Smt. Ana Ghosh to the Municipal authorizes on 3.12.1987. It was further declared that whether before or after any or all of the existing building or structure is demolished, the one or ones to be erected or re-erected shall not contravene, in any event, the irrelaxable building rules that prevailed on or by retrospective operation are deemed to have prevailed on 25.4.1988. The respondents and all of them and their officers, servants and employees shall be restrained by an order of permanent injunction from in any manner obstructing or taking steps against the writ petitioner or its servants, agents, assigns or employees on the ground that there is no expressly permitted, sanctioned or approved plan, in case the writ petitioner commences, continues and concludes its building activities in accordance with the declarations made above.
( 1 ) THE Court: This is an application filed by the writ petitioner substantially for a declaration that the building plan and application for sanction to build at 4a Woodburn Park, filed by the predecessor in interest of the writ petitioner with the Municipal Authorities stands approved by operation of law.
( 2 ) THREE dates are the most material in the disposal of this application. On the 4th of January, 1984, the Calcutta Municipal Corporation Act, 1980, came into force repealing the earlier Municipal Act of 1951 by section 635 thereof. However, the very same section preserved the building rules which had formed Schedule XVI to the said earlier Act of 1951.
( 3 ) ON the 25th of February, 1988, one Smt. Ana Ghosh made an application for sanction to build after demolition of existing structures in relation to the land and premises in question. The requisite fees for the said application were also paid. It should be clarified that the submission of the building plan was made by Smt. Ghosh on 3rd December, 1987 and the fees were paid on the 25th February, 1988 and for our purposes we shall assume that the application was duly completed by on behalf of Smt. Ana Ghosh on the 25th of February, 1988. On the 12th of December, 1990, new Building Rules replaced the earlier Building Rules which had formed Schedule XVI of the 1951 Act and which had been continued by the 1980 Act.
( 4 ) MR. Siddhartha Sankar Ray and Mr. Pijush Kanti Dutta both made submissions on behalf of the Writ petitioner on different dates. The learned Counsel for the Municipal Authorities namely Mr. Mihir Roy and Mr. Barin Banerjee also made submissions on different days and both the sets of counsel relied upon several Rules of Schedule XVI which were rules 47, 49, 51, 52, 54, 55 and 56. It is better for the sake of convenience to set out the said Rules herein:- "47. Application to the Commissioner for permission to erect a new building or make addition or alteration to a building. (1) No person shall erect a new building, or re-erect or make addition and/or alteration to any building or cause the same to be done without first obtaining a written permission from the Commissioner under rule 55. (2) Every person intending to erect a new building or re-erect or make addition and/or alteration to any building shall send to the Commissioner an application for permission to execute the work together with the site plan of the site, a plan of the whole building, separate plans for each floor of the building, complete elevations and sections of the work, services plans, a specification or the work and such other particulars as may be prescribed by the Corporation in this behalf from time to time. 49. Signature of plans, elevations and sections- Every applicant who intends to erect a building shall satisfy the Commissioner as to his exclusive right of erection and the application, plans, elevations and sections referred to in rules 47 and 48 of this Schedule shall be signed clearly and in a prominent place by such applicant or applicants (in case the number of applicant is more than one) and by the licenced building architect as required under section 380 of the Act. 51. Formulation of requirements and objections- (1) All information and documents which it may be found necessary to require, and all objections which it may be found necessary to make before deciding whether permission to erect a building (other than a hut) should be given, shall be respectively required and made in one requisition, and the applicant shall be apprised thereof at the time of earliest possible date. (2) Within fifteen working days after the receipt of any application under rule 47 for permission to execute any work, the Commissioner may require the applicant- (i) to furnish him with any information on matters referred to in that rule which has not already been given in the documents received thereunder or with any document prescribed by that rule which has not been sent in, or (
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