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High Court Of Calcutta
Jyotirmay Bhattacharya, J.
VICTOR AUTO AGENCY - Appellant
Versus
RAJPUR SONARPUR MUNICIPAITY - Respondent
W. P. 7838 (W) Of 2006
Decided On : 11/23/2006
BUILDING PLAN SANCTION - Refusal - Grounds - Non-Application of Mind - Curable Defects - Soil Test Report - Feasibility of Construction - Pond Filling Allegation - Hearsay Evidence - Natural Justice - Building Rules Violation - Legality of Building Plan.
Fact of the Case:
The petitioners' building plan for a multi-storied building (G+4) at 215 N. S. Road, Ward No. 16, Rajpur-Sonarpur Municipality, was denied due to various reasons, including the absence of development and land use change permission under the West Bengal Town and Country (Planning and Development) Act, 1979, incomplete signatures on the application, lack of an approved site plan, and incomplete document submission. The petitioners challenged this refusal, claiming it was arbitrary and lacked proper consideration.
Finding of the Court:
The court found that the Municipal authority acted illegally by refusing to grant sanction to the petitioner's plan due to total non-application of mind, as they had already granted permission for development and land use change under section 46 of the West Bengal Town and Country (Planning and Development) Act, 1979. The court also held that the other grounds of objection were either curable defects or lacked merit, such as the requirement for a No Objection Certificate under the Urban Land (Ceiling and Regulation) Act, 1976, which was not necessary for building plan approval under the West Bengal Municipal Act. The court further found that the allegation of pond filling was based on hearsay evidence and that the Soil Test Report indicated the feasibility of construction on the disputed portion of the land.
Issues: 1. Whether the Municipal authority's refusal to grant sanction to the building plan was arbitrary and lacked proper consideration? 2. Whether the grounds of objection raised by the Municipal authority were valid and justified the refusal of sanction? 3. Whether the petitioners' building plan complied with the relevant building rules and regulations?
Ratio Decidendi: 1. The court held that the Municipal authority's refusal to grant sanction to the building plan was arbitrary and lacked proper consideration, as they had already granted permission for development and land use change under section 46 of the West Bengal Town and Country (Planning and Development) Act, 1979. 2. The court found that the other grounds of objection raised by the Municipal authority were either curable defects or lacked merit, such as the requirement for a No Objection Certificate under the Urban Land (Ceiling and Regulation) Act, 1976, which was not necessary for building plan approval under the West Bengal Municipal Act. 3. The court further found that the allegation of pond filling was based on hearsay evidence and that the Soil Test Report indicated the feasibility of construction on the disputed portion of the land.
Final Decision: The court directed the petitioners to justify before the Municipal authority that their building plan was submitted in accordance with Rule 47 of the West Bengal Municipal Building Rules, 1996. If the petitioners succeeded in establishing this, the Municipal authority was directed to grant sanction within two weeks. If the petitioners failed to establish this, they were to re-submit the building plan in conformity with the rule, and the Municipal authority was directed to consider the legality of the plan and take a decision within four weeks. The Municipal authority was also directed to communicate its decision to the petitioners within a week of taking such a decision.
( 1 ) REFUSAL to grant sanction to the building plan submitted by the petitioners for construction of a multi-storied building (G+4) at holding No. 215, N. S. Road, Ward No. 16, by the Municipal authority of Rajpur-Sonarpur Municipality vide annexure 'p-15' to this writ petition at page 83, is under challenge in this writ petition.
( 2 ) THE said holding No. 215, N. S. Road consists of various plots of land, viz. . Dag Nos. 179, 180, 181 and 186. The petitioners applied for the sanction of building plan for construction of a multi-storied building on the entire holding comprising of 16 cottah 20 chittak 4 sq. ft. of land.
( 3 ) SUCH prayer of the petitioners was not allowed by the Municipal authority on the following grounds:
(1) That the petitioners have not taken any permission for development as well as for change of use of the said land in question under section 46 of the West Bengal Town and Country (Planning and Development) Act, 1979. (2) All the owners of the said land have not signed in the said application. (3) The petitioners have not submitted the approved site plan. (4) The petitioners have not submitted all the papers and documents duly attested. (5) The petitioners have not submitted the No Objection Certificate from the competent authority as defined in clause (d) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976. (6) It appears from the soil test report that more or less 7 cottah of land in the said plot situated adjacent to N. S. Road has been filled up by the borrowed soil followed by muck of around 1. 0m. thickness upto 3. 7m. depth around BH-1 and BH-2 as shown in the said soil test report. (7) It has been learnt that there was a pond adjacent to N. S. Road measuring about more or less 8 cottah which has been filled up by the agents/associates 3-4 years ago. e. in the year 2001.
( 4 ) WHILE rejecting the petitioners' prayer for grant of sanction to their said building plan, the Municipal authority by its letter dated 23rd july, 2005 being annexure 'p-15' to this writ petition at page 83 directed the petitioners to restore the said pond immediately within 30 days from the date of receipt of the notice. It was also indicated therein that if the petitioners failed to comply with the said direction within the stipulated period, the Municipal authority will take appropriate steps in accordance with law without further reference to the petitioners.
( 5 ) THE petitioners were, however, requested to modify their building plan in the light of the observations made by the Municipal authority, in its said letter and to submit the same by complying with all the formalities as indicated in the said letter at the earliest, so that the municipal authority can reconsider the petitioners' prayer for such sanction afresh.
( 6 ) MR. Panja, learned senior counsel, appearing on behalf of the petitioners, submitted that the refusal to grant sanction to the building plan submitted by the petitioners for construction of the multi-storied building at the said premises suffers from total non-application of mind by the Municipal authority.
( 7 ) MR. Panja contended that most of the formalities which the petitioners were called upon to comply with, do not require further compliance as the petitioners had already complied with the requisite formalities at the time of submission of such plan. Mr. Panja further submitted that some of the formalities which the petitioners were called upon to comply with, are absolutely irrelevant for the purpose of processing the petitioners' plan for sanction.
( 8 ) BY referring to various annexures to this writ petition. Mr. Panja pointed out that the requisite formalities were all complied with by the petitioners. By referring to annexures 'p-8' and P-9' to this writ petition at pages 71 and 72 respectively, Mr. Panja pointed out that permission under section 46 of the West Bengal Town and Country (Planning and Development) Act, 1979 has already been granted
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