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2006 Supreme(Ori) 497
2006 (II) OLR — 277
THE CHIEF JUSTICE AND A. K. GANGULY, JJ.
M/s. Z. Engineers Construction (P) Ltd....Petitioner
Versus
Bhubaneswar Development Authority and another...Opp. Parties
W.P.(C) No.2589 of 2006
Decided on 12th July, 2006.
For Petitioner:M/s. S. C. Parija, P. Behera and M. R. Tripathy
For Opp.Parties:Mr. S. B. Panda
Headnote:1. ORISSA DEVELOPMENT AUTHORITIES ACT, 1982 - Sec. 16(1), 16(7) and 16(8) - Construction of a residential/commercial S+8 building - Approval of plan - Deemed sanction of plan - A deemed provision is a legal fiction created by a statute and in interpreting a legal fiction the Court is to first ascertain the purpose, for which the fiction is created - In construing the fiction its effect is not to be extended beyond the purpose for which it is created - Court cannot hold that the deeming provision under Sec. 16(8) can be applied in the facts of the case.
In my judgment the deeming provision in Sub-section (8) and the time limit in Sub-section (7) has been introduced with the dominant purpose to see that the applications which are filed for grant of sanction by the applicants do not remain pending with the authorities for an unreasonably long period. On the other hand the legislative intention is that such an application should receive immediate attention of the sanctioning authority. So the deeming provision introduced in Sub-section (8) of Section 16 is meant to expedite the entire process of sanction under the threat of a deemed sanction. (Para - 9)
2. ORISSA DEVELOPMENT AUTHORITIES ACT, 1982 - Sec. 16(8) - Approval of Building plan - Deemed sanction of plan - Conditions in sending the form - Relevant form is Form III and the same is a statutory form - Conditions are to be mandatorily followed by anyone who seeks to invoke the benefit under Sec. 16(8) - This has not been done in the present case - Without compliance with these statutory requirements, the petitioner cannot claim the benefit of Section 16(8).
The requirement of sending the notice under statutory form by registered post with A.D. is part of conditions under Section 16(7) and it is only on a strict fulfilment of these conditions the benefit of deeming sanction under Section 16(8) can be availed of by an applicant. The prescription of those conditions namely sending the notice under a statutory form and under regis¬tered post also has a specific purpose. The obvious purpose is after it is sent in that form and in that manner it will immedi¬ately draw the attention of the Vice-Chairman. Hundreds of let¬ters not in any prescribed forms are sent under ordinary post or through personal service. But those letters do not carry the stamp of urgency which is attributable to a statutory notice sent under registered post. Therefore, the ordinary letter of an applicant sent not in the form and otherwise than by registered post may not be placed before the Vice-Chairman to draw his attention. That is why the conditions have been prescribed. (Para - 10)
3. INTERPRETATION OF STATUTE - A deemed provision is a legal fiction created by a statute and in interpreting a legal fiction the Court is to first ascertain the purpose for which the fiction is created - In construing the fiction its effect is not to be extended beyond the purpose for which it is created. (Para - 9)
JUDGMENT
A. K. GANGULY, J. — This writ petition has been filed chal¬lenging the order dated 6.2.2006 passed by the Bhubaneswar Devel¬opment Authority, opposite party No.1 (hereinafter called “B.D.A.”). By the said order the Planning Member of B.D.A. informed one Tapan Kumar Mohanty, who claims to be the Managing Director of M/s. Z. Engineers Construction (P) Ltd., the petitioner-company that its application filed on 19.10.2005 for construction of a residential/commercial S+8 storied building cannot be considered for certain reason mentioned in the said order. The reasons for non-consideration of the petitioner’s application is that the plot is located in the green belt/Commercial zone as per the C.D.P. of Bhubaneswar. The other reasons is that the building plan is not in conformity with Rule 70(8) of Bhubaneswar Develop¬ment Authority (Planning & Building Standards) Regulations, 2001 (hereinafter referred to as “Regulations, 2001”).
2. The material facts of the case are that for construc¬tion of a S+8 residential building over plot No.264(P), 265 in Mouza Chandrasekharpur in Bhubaneswar, a plan is stated to have been submitted on 4.7.2002 by the petitioner in the prescribed form under Section 16(1) of Orissa Development Authorities Act (hereinafter referred to as “the Act”). It was alleged that the said plan was submitted in conformity with Clause 70(2) read with Table 17(2)(b) Column 3, Serial No.9 of the Regulation. The further case of the petitioner-company is that by its letter dated 11.2.2003 sent to the Vice-Chairman, BDA, it was brought to the notice of the Vice-Chairman that permission from the BDA to undertake development with respect to the plot in question was filed on 4.7.2002 and its application was registered on 4.7.2002. More than two months had elapsed since the submission of the application by the petitioner-company but till date it had not been either approved or rejected. It was made clear in the said letter that if within a further period of one month from the date of receipt of the notice no communication of either granting or refusing permission or for requisitioning of any relevant infor¬mation was received by the petitioner-company, then the petition¬er-company would presume the permission as applied for has been deemed to have been granted.
In answer to the said letter, the B.D.A. sent on 26.2.2003 its letter to the Chief Architect, Government of Orissa, Bhubaneswar enclosing therein a set of revised plan containing three numbers of drawing and copy of clarification letter submit¬ted by the Chief Architect in response to the observations made by the Chief Architect. The Chief Architect was also requested by the Planning Member, Bhubaneswar to take appropriate action in the matter and his considered view was also requested to be communicated to the Planning Member of B.D.A. to be placed in the next Development Plan and Building Permission Committee. A copy of the said letter was sent to the Managing Director of the petitioner-company for necessary information and interaction with the Chief Architect and it was also made clear that the said letter was issued in response to the statutory notice received by the B.D.A. 13.2.2003.
3. The Chief Architect in response to the same sent its reply to the Vice-Chairman, BDA by a communication dated 8.4.2003, the text of which is set out below :-
“GOVERNMENT OF ORISSA
OFFICE OF THE CHIEF ARCHITECT
NIRMAN SOUDHA : BHUBANESWAR
No. C.P.H. & UD-1/98(pt) 926 / Dated the 8th April, 2003.
From
Shri S. C. Swain,
Chief Architect,
Govt. of Orissa,
Bhubaneswar.
To
The Vice-Chairman,
Bhubaneswar Development Authority,
Bhubaneswar.
Sub : Submission of first revision drawings of item No.BPC-17/37- Apartment complex of High Land residency over Plot No.264/2511, 264/4299 and 265 in Mz-Chandrasekharpur.
Sir
With reference to the letter No.1626/BP/BDA dated 26.02.2003, the revised drawings of the above mentioned projects submitted by B.D.A. were scrutinized by our Design Committee on 7.4
