2001 Supreme(Cal) 288

High Court Of Calcutta
D. K. SETH
SALIM MAKKAR - Appellant
Versus
N.K.PANSARI - Respondent
T.  160  Of  2001
Decided On : 05/17/2001

The revalidation of a sanctioned plan under Section 399 of the Calcutta Municipal Corporation Act, 1980 is permissible even after the expiry of the initial period of validity, provided that the plan was sanctioned under Schedule 16 of the 1951 Act and remained valid on the date of coming into force of Rule 117 of the 1990 Rules.

Headnote:

CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - SECTION 399 - REVALIDATION OF SANCTIONED PLAN - VALIDITY - SCHEDULE 16 OF THE 1951 ACT - CONTINUATION - RULE 117 OF THE 1990 RULES - CESSATION OF SCHEDULE 16 - APPLICABILITY OF SECTION 399 OF THE 1980 ACT - WRIT PETITION - MAINTAINABILITY - INTERVENTION - LOCUS STANDI - ADVERSE POSSESSION - PERMANENT INJUNCTION - RES JUDICATA.

Fact of the Case:

The petitioner filed a writ petition challenging the revalidation of a sanctioned plan by the Municipal Corporation. The petitioner claimed title to the property through a registered deed of lease dated 5th December, 1984 obtained from two ladies who were possessing the said premises adversely and as of right for more than 12 years. The defendant No. 1, N,. K. Pansari had been making construction on the basis of a plan sanctioned sometimes back since been revalidated in 1997. The petitioner contended that the relief with regard to the revalidation of the said plan could not be had in the suit and that the Corporation was not a party to it, therefore, the writ petition has since been filed. The defendant No. 1 filed an application for taking the plaint off the file and recalling of the order dated 26th February, 2001 passed in T. No. 160 of 2001 (C. S. No. 108 of 2001) and G. A. No. of 2001. Both the counsel for the respective parties had addressed the Court on the question of grant of interim order of injunction and the maintainability of the writ petition as well as continuance or vacating of the interim order granted in the suit and the writ petition.

Finding of the Court:

1. The revalidation of the sanctioned plan was permissible under Section 399 of the Calcutta Municipal Corporation Act, 1980. 2. Schedule 16 of the 1951 Act which remained valid by reason of S. 635 (2) (f) ceased to continue to remain in force with the coming into force of Rule 117 of the 1990 Rules. 3. The plan as sanctioned remaining valid on 12th December, 1990 will remain valid as such and cannot be altered even if there is any change in the 1990 Rules by reason of sub-rule (2) of Rule 117. 4. The writ petition was not maintainable as the petitioner had no locus standi to maintain the writ petition. 5. The plaintiff could not claim a title better than his lessors, the said two ladies. 6. The said two ladies could not acquire any title in respect of the property by adverse possession as they were bound by the permanent injunction granted against them in suit No. 3539 of 1951. 7. The decision in suit Nos. 10 of 1988 and 1036 of 1989 operated as res judicata against the plaintiff.

Issues: 1. Whether the revalidation of the sanctioned plan was permissible under Section 399 of the Calcutta Municipal Corporation Act, 1980? 2. Whether Schedule 16 of the 1951 Act continued to remain in force after the coming into force of Rule 117 of the 1990 Rules? 3. Whether the plan as sanctioned remaining valid on 12th December, 1990 could be altered even if there was any change in the 1990 Rules? 4. Whether the writ petition was maintainable? 5. Whether the plaintiff had locus standi to maintain the writ petition? 6. Whether the said two ladies could acquire any title in respect of the property by adverse possession? 7. Whether the decision in suit Nos. 10 of 1988 and 1036 of 1989 operated as res judicata against the plaintiff?

Ratio Decidendi: 1. Section 399 of the Calcutta Municipal Corporation Act, 1980 provides that the Municipal Commissioner shall when sanctioning the erection of a building or the execution of a work specify a reasonable period within which the building or the work is to be completed. If the building or the work is not completed with the period so specified, it shall not be continued thereafter without fresh sanction obtained in the manner hereinbefore provided, unless the Municipal Commissioner on an application made in this behalf allows an extension of such period. 2. Rule 117 of the 1990 Rules provides that notwithstanding such cessation of the rules contained in Schedule 16 under the 1951 Act, building plans sanctioned under the former rules and remaining valid on the date Immediately before 12th December, 1990 shall continue to remain valid till the expiry of the period of validity thereof. 3. The plan as sanctioned remaining valid on 12th December, 1990 will remain valid as such and cannot be altered even if there is any change in the 1990 Rules by reason of sub-rule (2) of Rule 117. 4. The petitioner had no locus standi to maintain the writ petition as he was not a party to the suit in which the revalidation of the sanctioned plan was challenged. 5. The said two ladies could not acquire any title in respect of the property by adverse possession as they were bound by the permanent injunction granted against them in suit No. 3539 of 1951. 6. The decision in suit Nos. 10 of 1988 and 1036 of 1989 operated as res judicata against the plaintiff as he was claiming his title through the said two ladies who were parties to the said suits.

Final Decision: The writ petition was dismissed. The order dated 26th February, 2001 (passed in C. S. No. 108 of 2001) was vacated and discharged. The application for injunction in C. S. No. 108 of 2001 was dismissed. The prayer for vacating the interim order made in G. A. No. (sic) of 2001 was allowed. The prayer for taking the plaint off the file in G. A. No. (sic) of 2001 was listed 5 weeks hence.