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CALCUTTA HIGH COURT
MANJULA CHELLUR & ARIJIT BANERJEE, JJ.
Bimal Kumar Sarkar – Appellant
Vs.
State of West Bengal and Others – Respondents
M.A.T. No. 1743 of 2014
Decided On : 3.11.2014
BUILDING PLAN APPROVAL - DEEMED SANCTION - SECTIONS 278 AND 279 OF THE WEST BENGAL MUNICIPAL CORPORATION ACT, 2006 - INTERPRETATION - KEY LEGAL PROVISIONS - COURT'S ANALYSIS AND CONCLUSION - REVISED RULES AND REQUIREMENTS FOR BUILDING PLAN APPROVAL - DISTINCTION BETWEEN SITE PLAN AND BUILDING PLAN - CONDITIONS FOR DEEMED SANCTION - APPLICABILITY OF DEEMED PROVISION TO ADDITIONAL CONSTRUCTION.
Fact of the Case:
The appellant sought a declaration that the revised building plan/site plan was deemed to be sanctioned by operation of Section 278 of the West Bengal Municipal Corporation Act, 2006. The appellant contended that they had submitted a revised site plan along with a building plan for additional construction to an existing building and that the respondent authority had failed to take any action on the application, leading to the benefit of Sections 278 and 279.
Finding of the Court:
The Court held that the deemed provision under Section 278 of the Act of 2006 could be invoked for a building plan but not unless other formalities were completed. The Court clarified that the application of a building plan must be in the required format, either along with the approved site plan or along with the site plan for approval, for the deemed provision to apply. The Court also held that unless the site plan was approved, even if the building plan was approved or had deemed approval, it could not have any authenticity.
Issues: 1. Whether the deemed sanction provisions of Sections 278 and 279 of the West Bengal Municipal Corporation Act, 2006, apply to revised site plans submitted for additional construction. 2. Whether the requirement for site plan approval is necessary even for additional construction to an existing building. 3. Whether the deemed provision under Section 278 can be invoked without complying with other requirements under the Act.
Ratio Decidendi: 1. The Court interpreted Section 259 of the Act, which defines 'erect a building' to include making any addition to a building, and held that additional construction to an existing building falls within this definition. 2. The Court analyzed Rules 3, 4, and 5 of the West Bengal Municipal (Building) Rules, 2007, and held that a piece of land can only be used as a building site in accordance with the provisions of the Act and the Rules. 3. The Court held that Rule 5, which requires the Municipal authority to provide further information or documents within fifteen working days from the date of receipt of an application for approval of a building site, refers to site plans and not building plans. 4. The Court concluded that the deemed provision under Section 278 of the Act can be invoked for a building plan but not unless the other formalities, including site plan approval, are completed.
Final Decision: The Court disposed of the appeal and the application without any order as to costs. The Court directed the respondent authority to consider the application as a site plan and decide its fate first, after which the owner could submit a building plan depending on the consideration of the site plan application.
1. The appellant is the unsuccessful writ petitioner before the learned single Judge who approached the learned single Judge seeking following reliefs in the writ petition.
(a) Declarations do issue that the revised building plan/site plan No. A681 dated 11.06.2013 has been deemed to be sanctioned by operation of Section 278 of the West Bengal Municipal Corporation Act, 2006.
(b) A writ of or in the nature of Certiorari commanding the respondents and/or their servants and/or their employees and/or their agents to certify and transmit to this Hon'ble Court the records of the case, including the notice dated 07.08.2014 being P-6 herein, so that conscionable justice may be administered by quashing the same.
(c) Writ in the nature of mandamus do issue, directing the respondents Corporation and their agents, employees and assigns to act in accordance with the provisions of law and not to initiate any proceeding for non-sanction of the building plan, and without complying the due process as laid down in the West Bengal Municipal Corporation Act, 2006.
(d) Any other appropriate writ or writs, order or orders, direction or directions.
(e) Rule NISI in terms of prayer (a), (b) (c) and (d) above.
(f) An order do issue restraining the respondents and particularly the respondent Nos. 3 and 6 from acting in any manner pursuant to the notice dated 07.08.20014 being annexure P-6 herein or from initiating any demolition proceedings without the due process of law until the disposal of the instant writ petition.
(g) Ad-interim order in terms of prayer (f) above.
(h) Costs of and incidental to this application.
(i) Such other or further order or orders, direction or directions as to this Hon'ble Court may deem fit and proper.
2. It is not in dispute that the petitioner approached the Court seeking benefit of the provisions of Sections 278 and 279 of the West Bengal Municipal Corporation Act, 2006 contending that there is deemed sanction of revised site plan submitted by the petitioner to the Siliguri Municipal Corporation so far as premises No. 44, Sarat Bose Road, Hakim Para, Siliguri 734 001. The facts led to filing of the present appeal are as under:
According to the appellant/writ petitioner, there was old building existing right from 1999 having four-storey building in the site in question. He further claims, when the respondent Municipality pointed out certain unauthorised construction he informed the respondent authority and demolished the unauthorised portions way back in 2011. He further contends, he submitted a revised site plan along with building plan in order to put up additional construction to the existing building. When they did not proceed to take any action on the application, according to him, he had the benefit of Sections 278 and 279. In order to substantiate his contention, he also refers to the format in which the application has to be given and according to him, it only refers to site plan and not a building plan. Therefore, he has submitted a revised site plan which according to him includes building plan also.
3. In response to this, learned counsel for respondent authority brings to our notice revised rules and contends that so far as deemed provision under Section 278 of the West Bengal Municipal Corporation Act, 2006 it refers to only building plan and not site plan. She also brought to our notice the requirement of clearance of a site plan even for additional construction only in order to see that the site upon which additional construction proposed to be put up in addition to the existing construction was suitable in every respect as contemplated under the procedure to have the additional construction. She has taken us through Section 259 of the West Bengal Municipal Corporation Act and Rules 3, 4 and 5 of the West Bengal Municipal (Building) Rules, 2007 which refers to revised provisions as well. Section 259 reads as under:
"259. Definitions - (1) In this chapter, unless the context otherwise requires, the expressi
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