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1995 Supreme(Cal) 193
HIGH COURT OF CALCUTTA
Bhagabati Prosad Banerjee & Nure Alam Chowdhury JJ.
Calcutta Municipal Corporation & Ors.
Versus
Arunendra Nath Banerjee
Appeal No. 660 of 1994 with Matter No. 2572 of 1994
Decided On : June 15, 1995
Advocate Appeared:
A. P. Sircar, Gour Roy Chowdhury, Jugal Poral for the appellants;
S. C. Bose, S. Chatterjee, D. J. Dutta, B. Mitra for the respondents.
The Municipal Commissioner is not the authority to sanction or refuse to sanction the building plan. The approval of the Mayor-in-Council is necessary for the sanction of the building plan. The condition imposed by the Municipal Building Committee for making gift of land as a precondition for sanctioning of the plan is ultra vires.
Headnote:
CALCUTTA MUNICIPAL CORPORATION ACT - S. 391, 396, 398A - SANCTION OF BUILDING PLAN - MUNICIPAL BUILDING COMMITTEE - MAYOR-IN-COUNCIL - POWER TO SANCTION - MINISTERIAL FUNCTION - DISCRETIONARY POWER - PROVISO TO S. 396 (1) - SCOPE - GIFT OF LAND AS CONDITION FOR SANCTION - WHETHER ULTRA VIRES.
Fact of the Case:
The writ petitioner, the owner of premises No. 39, Shakespeare Sarani, Calcutta, applied for sanction of the building plan before the Calcutta Municipal Corporation. The Municipal Building Committee recommended the sanction of the plan subject to fulfilling of the three conditions. The petitioner duly complied with all the requisitions and formalities as stipulated in the letter, dated 27th January, 1989, and the petitioner duly convened a part of its property to the Calcutta Municipal Corporation by two seperate deeds of gifts executed on February 2, 1989, and on August 11, 1989, respectively. The said gift of land, without any consideration was accepted by the municipal authorities by the letter dated September 7, 1989. The Municipal Building Committee adopted a resolution in respect of the sanction of the said plan. The said resolution is as follows: “Item No. 11 : Re. 39, Shakespeare Sarani This is a proposal for erection of a new partly seven, partly eight and partly nine storied building for business-cum-residential purposes. The committee has considered the case and recommends for sanction subject to compliance with the following requisitions (Emphasis supplied) :- 1. Underground reservoir should be shifted beyond 3.5 metres from the property boundary line abutting on Sorojini Naidu Sarani i.e. Old Rawdon Street. 2. A strip of land fallen within 11 metres from Shakespeare Sarani shall have to be thrown to C.M.C. Road. 3. The comer of Shakespeare Sarani and Rawdon Street shan have to be splayed by 2.4 x 2.4 metres and the splayed portion shall have to be thrown to C.M.C. Road. 4. However the applicant will get the advantage of ground coverage, F.A.R., obligatory open space etc. as he could get prior to throwing that strip of land. 5. All other departmental requisitions shall have to be complied with.” The said recommendation was thereafter forwarded to the Mayor-in-Council by the Chairman, Calcutta Municipal Building Committee, who is the Commissioner of the Calcutta Municipal Corporation. After approving the said recommendation on 10th of January, 1989, Chairman of the Municipal Building Committee signed the same and on 19th January, 1989, the Mayor-in-Council of the Calcutta Municipal Corporation approved the said recommendation in toto. The petitioner submitted that though the owner was not required under the Building Rules or the Act to shift underground reservoir beyond 3.5 metres from the operative line from Sarojini Naidu Sarani (Old Rawdon Street). The Respondent writ petitioner followed the said suggestion and in acknowledgement of such proposal delivered to the Municipal Corporation a revised plan on 14.02.1989, after readjusting the underground reservoir according to the desire of the Municipal Building Committee, dated 30.12.1988, which was approved by the Mayor-in-Council.
Finding of the Court:
The Municipal Commissioner is not the authority to sanction or refuse to sanction the plan. The Act has provided a Municipal Building Committee with the Municipal Commissioner as the Chairman. When the Municipal Building Committee. including the Municipal Commissioner as the Chairman, makes a recommendation and that recommendation is made to the Mayor-in-Council and when the Mayor-in-Council considers the recommendation and accepts the recommendation, the matter in its finality, in view of the provisions to second proviso to s. 396 of the said Act. In law, one cannot make a recommendation to himself. The recommendation, as provided under s. 391 of the said Act by a Committee presided over by the Municipal Commissioner, is not authorised and/or competent to make recommendation to the Municipal Commissioner for the same reason that a larger body is not authorised as the competent and it is against the scope of the Act to make recommendation to a member of the main body, namely Municipal Building Committee. When the Municipal Commissioner, as the Chairman of the Municipal Building Committee, makes a recommendation that the plan was in order and makes a recommendation for sanction so far as Municipal Commissioner is concerned the Municipal Commissioner cannot then refuse act in the matter as the same binding upon the Municipal Commissioner and the subsequent acts of the Municipal Commissioner are nothing but purely ministerial. The decision is taken by the Municipal Building Committee and in the decision making process, the Municipal Commissioner. being the Chairman of the Municipal Building Committee, when makes a recommendation to the Mayor-in-Council and the Mayor-in-Council accepts such recommendation and/or approve such recommendation, the matter reaches its finality and the decision making process is thus completed. Thereafter, there is no scope for taking any decision afresh by the Municipal Commissioner under the scope and ambit of any of the provisions of this Act sitting over the decision of the Committee. . After the Municipal Building Committee takes a decision on consideration of the entire matter, by the Municipal Building Committee with Municipal Commissioner as the Chairman, no discretion is left for the Commissioner to be exercised under the Act either to grant or to refuse sanction. On the contrary, it is clear that under the Second Proviso to s. 396(1) of the said Act, it is clear that certain amount of discretion is 1eft with the Mayor-in-Council who is to consider the recommendation of the Municipal Building Committee and who is to finalise its decision on such consideration if he thinks fit.
Issues: 1. Whether the Municipal Commissioner has the power to sanction or refuse to sanction the building plan? 2. Whether the approval of the Mayor-in-Council is necessary for the sanction of the building plan? 3. Whether the condition imposed by the Municipal Building Committee for making gift of land as a precondition for sanctioning of the plan is ultra vires?
Ratio Decidendi: 1. The Municipal Commissioner is not the authority to sanction or refuse to sanction the plan. The Act has provided a Municipal Building Committee with the Municipal Commissioner as the Chairman. When the Municipal Building Committee. including the Municipal Commissioner as the Chairman, makes a recommendation and that recommendation is made to the Mayor-in-Council and when the Mayor-in-Council considers the recommendation and accepts the recommendation, the matter in its finality, in view of the provisions to second proviso to s. 396 of the said Act. 2. Yes, the approval of the Mayor-in-Council is necessary for the sanction of the building plan. The second proviso to sub-section (1) of Section 396 of the said Act provides that “provided that no such sanction had been accorded without the prior approval of the Mayor-in-Council in case of a building, except residential building proposed to be erected or reerected on a building of 500 sq. metres or less”. 3. Yes, the condition imposed by the Municipal Building Committee for making gift of land as a precondition for sanctioning of the plan is ultra vires. The Municipal Authorities are creatures of the Statute. Under the Statute the Calcutta Municipal Corporation had no such authority or jurisdiction to ask a party to make a free gift of a place of land as a precondition for sanctioning of a plan.
Final Decision: The appeal is dismissed without any order as to costs.
Bhagabati Prosad Banerjee, J.
This appeal, filed by the Appellant, is against the judgment delivered by Satyabrata Sinha, J., passed on 26th September, 1994.
2. In the writ application, the writ petitioner opposite party, inter alia, prayed for issuance of a writ in the nature of Mandamus, directing the appellants to grant formal sanction of the building plan in terms of the decision already taken in this behalf by the Municipal Authorities.
3. The facts of this case for the purpose of this appeal is that the writ petitioner opposite party is the owner of the premises No. 39, Shakespeare Sarani, Calcutta, and filed an application for sanction of the building plan before the Calcutta Municipal Corporation on 11th October, 1988. 'No Objection' certificate from the Director of West Bengal Fire Services as well as from the Deputy Commissioner (Traffic) were obtained and filed. The Municipal Building Committee recommended the sanction of the said building plan on 30th December, 1988, subject to fulfilling of the three conditions land the same was communicated to the petitioner by letter dated 27.01.1989, by the District Building Surveyor, in which it was stated:
"This is a proposal for erection of a new partly seven, partly eight and partly nine storeyed building for business-cum-residential purpose. The Committee has considered the case and recommends for sanction subject to compliance with the following requisitions:
1. Underground reservoir should be shifted beyond 3.5 metres from the property boundary line abutting on Sarajani Naida Sarani i.e. Old Rowdon Street.
2. A strip of land fallen within 11 metres from the centre line of Shakespeare Sarani shall have to be thrown to C.M.C. Road.
3. The corner of widen Shakespeare-Sarani and Rowdon Street shall have to be splayed by 2.4 X 2.4 metres and the splayed portion shall have to be thrown to C.M.C. Road."
4. The Respondent writ petitioner duly complied with all the requisitions and formalities as stipulated in the said letter, dated 27th January, 1989, and the petitioner duly convened a part of its property to the Calcutta Municipal Corporation by two seperate deeds of gifts executed on February 2, 1989, and on August 11, 1989, respectively. The said gift of land, without any consideration was accepted by the municipal authorities by the letter dated September 7, 1989.
5. The said proposed building would be constructed of the corner of two streets and in view of the conditions of s. 405 of Calcutta Municipal Corporation Act and under Rule 18(5) of the said Rules, the proposed plan had provided for splaying of corner sides of Shakespeare Sarani and Rowdon Street and marked as 'Hatched Portion'. It also appears that in the outlined development plan of the Calcutta Metropolitan Development Authority, prepared under the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, that there was a proposal for widening of Shakespeare Sarani, whereby a strip of land falling within 11 metres from the central line of Shakespeare Sarani would be necessary. This land, could have been acquired by the appropriate authority, measuring about one cottah two chattaks (85.64 sq. metres) and consequently the writ petitioner, who was the owner, could get substantial amount of compensation money for such acquisition if made. The plan that was submitted on 11.10.1988, was prepared in a way as if that the sanction of the said plan, 85.64 sq. metres of land were left out all along Shakespeare Sarani, falling within 11 metres from the central line of Shakespeare Sarani and this was shown in the plan which was submitted to the municipal authority together with another boundary line after leaving aside the aforesaid 85.64 sq. metres of land to be required for widening of the road in future.
6. At the back portion of the premises, the plan had provided for making an under-ground reservior for 50,000 liters. In the plan, 60.5% of the total area of the premises had been left open with
