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IN THE HIGH COURT AT CALCUTTA
Ajit Kumar Sengupta and Khwaja Mohammad Yusuf, JJ.
Calcutta Metropolitan Development Authority - Appellant
Versus
East India Hotels Limited & Ors. - Respondents
Appeal No. 795 of 1987 & Matter No. 312 of 1987
Decided On : May 16, 1991
CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY (CMDA) - WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979 - SECTIONS 44, 45, 46 - DEVELOPMENT CONTROL GUIDELINES - INTERIM DEVELOPMENT FREEZE - ARBITRARINESS - UNREASONABLENESS - GUIDELINES WITHOUT STATUTORY AUTHORITY - FAILURE TO EXERCISE DISCRETION - FETTERING OF DISCRETION - ARTICLE 14 OF THE CONSTITUTION - VALIDITY OF THE GUIDELINES - PERMISSION FOR DEVELOPMENT - MATERIAL CONSIDERATIONS - RELEVANT CONSIDERATIONS - REJECTION OF PLAN - IMPROVEMENT OF THE AREA - RECONSTRUCTION OF EXISTING STRUCTURE - GROUND COVERAGE AND F.A.R. - DEVELOPMENT PLAN - PREPARATION OF DEVELOPMENT PLAN - DELAY - OBJECTION TO THE PLAN - STATUTORY PROVISIONS - METRO RAILWAYS - CONCEPTS OF INNER IMPACT ZONE AND OUTER IMPACT ZONE - VALIDITY - SURFACE DISPERSAL OF COMMUTERS - TOWN PLANNING - CONSTRAINTS - FLEXIBILITY - REASONABLE VIEW - CONFLICT WITH BASIC STRATEGY OF TOWN PLANNING.
Fact of the Case:
The Calcutta Metropolitan Development Authority (CMDA) refused to grant permission to the company to construct a four-storied commercial-cum-office building on the ground that the proposed construction would violate the Development Control Guidelines issued by CMDA for the Inner Impact Zone of the Esplanade Metro Railway Station. The company challenged the decision of CMDA, contending that the Guidelines were arbitrary, unreasonable, and without statutory authority and that CMDA had failed to exercise its discretion in a fair and impartial manner.
Finding of the Court:
The court held that the Development Control Guidelines were arbitrary, unreasonable, and without statutory authority. The court found that CMDA had failed to exercise its discretion in a fair and impartial manner and had fettered its discretion by imposing self-imposed rules. The court also held that the Guidelines violated Article 14 of the Constitution, which guarantees equality before the law and prohibits discrimination. The court further held that CMDA had erred in rejecting the company's plan for the construction of the four-storied commercial-cum-office building, as the proposed construction would not have come into conflict with the basic strategy of town planning. The court directed CMDA to grant permission to the company to construct the building in accordance with the sanctioned plan.
Issues: 1. Whether the Development Control Guidelines issued by CMDA were arbitrary, unreasonable, and without statutory authority? 2. Whether CMDA had failed to exercise its discretion in a fair and impartial manner and had fettered its discretion by imposing self-imposed rules? 3. Whether the Guidelines violated Article 14 of the Constitution, which guarantees equality before the law and prohibits discrimination? 4. Whether CMDA had erred in rejecting the company's plan for the construction of the four-storied commercial-cum-office building?
Ratio Decidendi: 1. The Development Control Guidelines were arbitrary, unreasonable, and without statutory authority because: a. They were not based on any statutory provision and were not issued in accordance with any prescribed procedure. b. They imposed a blanket ban on all development activities in the Inner Impact Zone of the Esplanade Metro Railway Station, without considering the specific circumstances of each case. c. They were not supported by any rational nexus between the restrictions imposed and the objectives of town planning. 2. CMDA had failed to exercise its discretion in a fair and impartial manner and had fettered its discretion by imposing self-imposed rules because: a. It had refused to consider the company's plan on its own merits and had instead applied the Guidelines in a rigid and inflexible manner. b. It had not taken into account the relevant factors in considering the company's plan, such as the fact that the proposed construction would not have come into conflict with the basic strategy of town planning. 3. The Guidelines violated Article 14 of the Constitution because: a. They discriminated against the company by imposing restrictions on its development activities that were not imposed on other similarly situated persons. b. They were not based on any rational classification and did not serve any legitimate purpose. 4. CMDA had erred in rejecting the company's plan for the construction of the four-storied commercial-cum-office building because: a. The proposed construction would not have come into conflict with the basic strategy of town planning. b. CMDA had not taken into account the relevant factors in considering the company's plan, such as the fact that the proposed construction would have improved the area and would have been conducive to future town planning.
Final Decision: The court dismissed the appeal filed by CMDA and allowed the writ petition filed by the company. The court directed CMDA to grant permission to the company to construct the four-storied commercial-cum-office building in accordance with the sanctioned plan.
Sengupta, J.
This application arises out of the appeal preferred by the Calcutta Metropolitan Development Authority (hereinafter referred to as ‘C.M.D.A.’) against the interim order dated October 30, 1987, passed by the Court of the first instance.
2. By consent, the application has been treated as an appeal. The parties have agreed that the decision in this appeal would virtually dispose of the writ petition. We have, therefore, heard the elaborate arguments which have been advanced by the learned Counsel appearing for the parties.
3. It is necessary to set out the facts. The first respondent (hereinafter referred to as the ‘company’) moved a writ petition out of which the present appeal arises. The case of the Company in the writ petition is as under :
The Company has been carrying on business as hotelier. The Company runs a Five-Star Hotel known as “The Oberoi Grand”. The building complex of the said hotel comprises of several premises nos. such as 15A, 15/1, 15/2, 15/3, 15/4, 15/6, 15/7, 15/9, 16/2, 16/3, 16/5 & 17 Jawaharlal Nehru Road ; 1A, 2A, 3 & 4 Bertram Street ; 6A, 7B, 8A, 9A & 9B Chowringhee Place and 4 Humayun Place and has the unique advantage of having public roads on all four sides. It has the Jawaharlal Nehru Road on the West, Bertram Street on the East, Humayun Place on the South and Chowringhee Place on its North. Such a building site is rarely to be found in the city of Calcutta.
4. The main building which consist of separate premises number is very old and constructed about a century ago at different period of time. Various structures were added from time to time, long ago. Some portions of the said building complex naturally became dilapidated and insecure. It became necessary to redevelop the entire Hotel complex in order to make it suitable for housing a Five-Star Hotel of the reputation to “The Grand.” The Company took up the work of redevelopment in several phased.
5. The Company’s Scheme for redevelopment could not be confined to mere reconstruction of the existing building. It was necessary to take suitable measures to resolve certain long-standing problems. There is hardly any car parking area within the hotel complex for guests, customers and visitors. Parking of cars on the roads outside the hotel complex caused not only inconvenience but also impeded the free flow of traffic. The company also needed sufficient accommodation within the Hotel complex to relocate its administrative offices which are presently scattered at different places for want of adequate floor space within the Hotel complex. The physical environment around the Hotel complex was also to be improved as far as feasible. All these called for phase-wise programme of remodeling and reorganization of the existing Hotel complex with necessary addition/alteration and reconstructions of certain parts of the old buildings and structures.
6. In course of such redevelopment, on 4.4.85, the Company submitted a plan to the Corporation for sanction of a four-storied car park which would provide parking facility to 250 cars to be located towards the south of the existing main building of the Hotel. The construction was to be made after demolition of a portion of the existing structures at Humayun Place where there are large number of shops occupied by shop-keepers who are tenants of the Company. The Calcutta Municipal Corporation, in keeping with its usual practice, required the Company to give an undertaking to the effect that all the tenants who would be displaced by the proposed construction, would to provided with alternative accommodation. On the basis of such undertaking, the said plan for a four-storied car park was sanctioned by the Corporation in 1985.
7. The Company, however, could not commence the construction of the said four-storied car park. In order to commence the construction, it will be necessary to relocate some of the shops facing Humayun Place so as to be able to demolish the said shops for the purpose of the proposed con
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