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High Court Of Calcutta
S. C. Sen , ARUN KUMAR DUTTA
EXECUTIVE OFFICER, DIGHA PLANNING AUTHORITY - Appellant
Versus
HOTEL SEA GULL - Respondent
F. M. A. T. 1 Of 1993
Decided On : 10/13/1993
WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979 - SECTIONS 46, 54, 53(1) - DEVELOPMENT PLAN - PERMISSION FOR DEVELOPMENT - APPLICABILITY OF SECTION 46 - DEVELOPMENT OF EXISTING BUILDING - REQUIREMENT OF PERMISSION - DEVELOPMENT CHARGE - ZONING AND SUB-DIVISION REGULATIONS - INTERPRETATION.
Fact of the Case:
The petitioner, a hotel owner, had obtained a sanctioned plan from the Gram Panchayat for construction of a five-storied building and had partly completed a two-storied building. After the area was acquired by the Digha Planning Authority, the petitioner undertook construction of the second floor. The Executive Officer of the Authority issued a notice under Section 54 of the Act, directing the petitioner to discontinue further construction, and a subsequent notice under Section 53(1), requiring the petitioner to demolish the construction undertaken. The petitioner filed a writ petition challenging the validity of the notices, contending that permission under Section 46 of the Act was not required for development of an existing building, and that there were other five-storied buildings in the area which had been constructed as per the plan sanctioned by the Panchayat, amounting to discrimination.
Finding of the Court:
The court held that permission under Section 46 of the Act is required for development of an existing building, as it amounts to 'building operations' and is thus 'development' in, on, over, the land in question. The court further held that permission under Section 46 would be required even in the absence of a Development Plan, as the relevant provisions of the Act, including Sections 46(2), 102, and 51, do not indicate that the section would not apply in such a situation. The court also held that the Zoning and Sub-Division Regulations could be included in the Outline Development Plan and Detailed Development Plan before the Development Plan comes into operation, and that permission under Section 46 would be obligatory for any development within the notified area for giving effect to such regulations.
Issues: 1. Whether permission under Section 46 of the Act is required for development of existing building or for development of vacant land only? 2. Whether permission for development under Section 46 of the Act would be required in the absence of Development Plan.
Ratio Decidendi: 1. The court held that permission under Section 46 of the Act is required for development of an existing building, as it amounts to 'building operations' and is thus 'development' in, on, over, the land in question. The court relied on the definitions of 'development' and 'building operations' in the Act, as well as the provisions of Section 46(1), which requires any person intending to carry out any development to make an application for permission. 2. The court held that permission under Section 46 of the Act would be required even in the absence of a Development Plan, as the relevant provisions of the Act, including Sections 46(2), 102, and 51, do not indicate that the section would not apply in such a situation. The court also held that the Zoning and Sub-Division Regulations could be included in the Outline Development Plan and Detailed Development Plan before the Development Plan comes into operation, and that permission under Section 46 would be obligatory for any development within the notified area for giving effect to such regulations.
Final Decision: The court allowed the appeal, set aside the impugned judgment and order of the lower court, and directed the petitioner to apply for permission under Section 46 of the Act for making further construction upon the existing Hotel building in terms of the Plan sanctioned/approved by the then competent Authority. The court also directed the concerned Authority to dispose of the application according to law by passing reasoned order after giving the petitioner all reasonable opportunity of being heard.
( 1 ) THE instant Appeal is directed against the judgment and order dated 22-12-1992 passed by Susanta Chatterji, J. in C. O. No. 10579 (W) of 1992.
( 2 ) THE facts giving rise to the said writ petition may shortly be stated as follows :-one Molay Kumar Guha was originally the owner of the Hotel, namely, M/s. Sea Gull, on part of plot No. 240, Khata No. 96, Mouza-Govinda Basan, P. S. Ramnagar (at present Digha), District Midnapore. After obtaining a sanctioned plan from the then Authority, Pudima II Gram Panchayat, on 19-1-1990 for construction of five-storied building thereon, and raising partly finished two-storied building he had been carrying on Hotel business by paying taxes and complying with requisite formalities therefor. By a registered Deed of Conveyance dated 7-6-1991 Sushil Pal Chowdhury and Dulal Pal Chowdhury had purchased the said Hotel with all that partly finished two-storied pucca "l" pattern structure/building standing thereon, including the business of the Hotel and its goodwill. They had thereafter executed a Deed of Partnership on 5-8-1991 for carrying the Hotel business in the name and style "hotel Sea Gull". They continued to carry on Hotel business by paying trade tax to the Gram Panchayat and complying with all other formalities therefor. The said two partners of the Writ Petitioner-Hotel (hereinafter referred to as Hotel) had undertaken construction of second floor in the month of July, 1992 in terms of the said sanctioned plan, still in force, which had almost been completed. The centering of the roof was also completed and the construction work was in progress. The management of the area (which was originally under the aforesaid Gram Panchayat) was acquired by the Digha Planning Authority on and from 20-11-1990 by virtue of a Notification under the West Bengal Town and Country (Planning and Development) Act, 1979 (hereinafter referred to as the Act ).
( 3 ) WHEN construction of the roof of the second floor on the said Hotel was about to be started the respondent No. 2, Executive Officer, Digha Planning Authority (hereinafter referred to as Officer) had issued a notice under Section 54 of the Act upon the petitioner, being Memo No. 238/xxx-24/dpa/92 dated 24-7-92, directing it to discontinue further construction of the building on the aforesaid plot in terms thereof, informing therein that necessary permission for such development is required under the said Act (copy of which had been marked as Annexure 'b' to the Writ Petition ). Immediately thereafter, the Writ Petitioner had received another notice from the Sub-Divisional Executive Magistrate, Contai, in Misc. Case No. 151 of 1992 asking it to appear before the Court and show-cause by 25-8-1992 as to why a proceeding under Section 144 of the criminal P. C. (hereinafter shortened into Code) should not be drawn up against it. By another subsequent notice dated 14-8-1992, the aforesaid Magistrate had directed the petitioner not to raise any construction and/or further construction and not to make any disturbance to the first party therein. The said case was fixed for further hearing on 14-9-92, and the restraint order was directed (on 25-8-92) to continue; and police picket was also posted in front of the Hotel.
( 4 ) IT has been contended by the Writ Petitioner that the respondent No. 2 had no right to interfere with the said construction work, which was undertaken on the basis of a Plan, duly sanctioned by the aforesaid Gram Panchayat. It has further been contended that there are other five-storied buildings very close to the Hotel, which had been constructed as per Plan sanctioned by the Panchayat, and completed after the Development Authority had acquired management of the area, amounting to discrimination between the parties standing on similar platform.
( 5 ) BEING aggrieved by and dissatisfied with the aforesaid Notice under Sec. 54 of the Act, the subsequent Notice issued by the said Executive Magistrate to stop wor
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