A policy decision of the Government cannot be a consideration for grant or refusal of sanction of a building plan by the Corporation, in the absence of any law or enactment requiring such clearance.

( 1 ) THE petitioner has applied for sanction of building plan in respect of a premises which was separated through mutation since been allowed by the Corporation. It is alleged that the portion owned by the petitioner is not a manufacturing unit whereas the other separated portion contains a manufacturing unit. The petitioner proposed to raise a building on his own separated portion which is not a manufacturing unit. The Corporation instead of refusing or granting sanction had required the petitioner to obtain a 'no Objection Certificate' from the Industrial Reconstruction Department. This direction by the Corporation for obtaining 'no Objection Certificate' from the Industries Department and the delay or default either in sanctioning or refusing the plan the petitioner has invoked writ jurisdiction.

( 2 ) MR. Saktinath Mukherjee, ld. Sr. Counsel had pointed out that as soon an application for sanction is made it is incumbent on the Corporation either to refuse or to grant sanction. It cannot sit over the matter neither can it delay the same indenfinitely. Relying on Section 395 of the Calcutta Municipal Corporation Act, 1980 he contends that it can refuse sanction of a plan only on conditions contained in sub-section (2) of Section 396 and not otherwise. It can also insist upon the permission as contained in sub-section (3 ). Elaborating his submission he contended that the provisions containedin sub-section (3) do not include obtaining of a clearance from the Industries Department. In support of his contention he had further submitted that he has a right under Article 300-A to hold the property. This right includes the right to possess, right to enjoy. Such right, however, is restricted by law and such law is a law made by the Parliament. It does not include laws made through executive action. Unless there is any such restriction the petitioner cannot be deprived of his right to property as enshrined under Article 300-A. Therefore, the Municipal Authority cannot sit tight over it nor can refuse to sanction the plan except on grounds mentioned in sub-section (2) within which the petitioner's case does not fall. In support of his contention Mr. Mukerjee has cited a few decisions which will be dealt with at appropriate stage.

( 3 ) MR. Dipankar Chakraborty, ld. Counsel for the Calcutta Municipal Corporation on the other hand contends that there is a trend of raising multistoreyed building after closing industries and thereby reducing the scope of employment and increasing unemployment in the State. Therefore, the Government had taken a policy decision to issue certain guidelines in the matter of sanctioning of a plan by the Corporation. Since Corporation is subordinate to the State Government, therefore, it is bound by such policy decision and therefore, it is well within the power of the Corporation to seek the 'no Objection Certificate' as a condition for grant of sanction to a building plan.

( 4 ) I have heard both the Counsel at length.

( 5 ) IT is not disputed that the portion mutated in favour of the petitioner is not a manufacturing unit. Be that as it may whether it is a manufacturing unit or not is not for us to consider in view of the law laid down on this subject by this Court consistantly, to which reference would be made at a later stage.

( 6 ) SECTION 396 of the said Act in sub-section (2) provides the conditions in which a plan can be refused. There is nothing in the Act to show that a 'no Objection Certificate' from the Industries Department is a requisite condition for sanction of a plan or absence of such 'no Objection Certificate' is a condition for refusing grant of sanction of a plan. Clauses (a) to (f) of sub-section (2) does not indicate any such proposition. Sub-section (3) also does not indicate that any licence or permission is required from the Industries Department for the purpose of making a construction. The allegation that a manufacturing unit would be closed down or there wil