The Municipal Commissioner of the Calcutta Municipal Corporation has the authority to grant relaxation from the open space requirement under Rule 58 of the Building Rules, 1990, and this decision is final and not subject to approval or confirmation by any other authority.

Vinod Kumar Gupta, J.

1. A very short point is involved for consideration in this case.

2. The petitioners have submitted a building plan for sanction by the Calcutta Municipal Corporation. The petitioners say that despite the plan having been submitted for sanction as far back as in the year 1993, the Calcutta Municipal Corporation has not granted its approval. The only objection raised in the affidavit-in-opposition, which was also urged at the time of hearing, was that the building plan as submitted by the petitioners suffered from the non-compliance with the requirement of keeping open space as prescribed under Rule 58 of the Building Rules, 1990 In fact, it is submitted that the petitioners were informed way back in the year 1995 that since the building does not have a provision for an open space, as was required under Rule 58, the plan could not be sanctioned.

3. In the affidavit-in-reply the petitioners have refuted the aforesaid objection taken on behalf of the Calcutta Municipal Corporation and have submitted that the requirement relating to open space as contained in Rule 58 Wits dispensed with and relaxed by the Municipal Commissioner in terms of Rule 58 and that the respondents in their affidavit-in-opposition have concealed this factual aspect. In order to resolve this controversy, the respondents were directed to produce the Original record for perusal of the Court. I have seen the original record produced by the learned advocate for the respondents and found that the file regarding the grant of relaxation from the observance of Rule 58 with regard to the provision of open space was submitted to the Municipal Commissioner of the Calcutta Municipal Corporation in due course. In fact, the relevant noting starts on 28.12.93 when the City Architect after observing that the height of the existing building in the front was 6.30 Mts. from the ground level and as the buildings on North, West and South and the adjoining premises are within 14.5 Mts. the requirement under Rule 58 may be relaxed. This recommendation of the City Architect made on 28.12.93 after having been routed through various channels was ultimately put up before the Municipal Commissioner, who vide his order dated 8.3.94 has recorded In tile original file observed as under:-

"May be relaxed."

4. The factual aspect which thus emerges from a perusal of the original file is that the Municipal Commissioner of the Calcutta Municipal Corporation in fact ordered the relaxation In so far as the observance of the Rule 58 was concerned relating to the provision for open space. The learned Advocate for the respondents has also very fairly conceded to this factual aspect and has submitted that the Municipal Commissioner, in fact granted relaxation. The argument, however, is that the Municipal Commissioner either was not competent to grant relaxation himself or, if he granted relaxation initially, the same was subject to confirmation and approval of the Building Committee and the Mayor-in-Council as per the requirements contain in Section 391 read with Section 396 of the Calcutta Municipal Corporation Act, 1980. I was taken through both these provisions in support of the aforesaid argument. It was very vehemently urged on behalf of the respondents that every action of the Municipal Commissioner is subject to confirmation by the Building Committee and the Mayor-in-Council and that every aspect relating to the sanction of a building plan has to be examined by the Building Committee and the Mayor-in-Council and that the Municipal Commissioner has no power or authority to deal with any such matter on his own.

5. Rule 58 of the Building Rules, 1990 reads as under:-

"58. Joint open space-Subject to the provisions of Rules 56 and 57, the joint open space in between two buildings belonging to the same owner or not, shall not be less than 7 metres, if one of such building exceeds 14 metres and 50 centimetres in height.

Provided that the provisions of this rule may be relaxe