1. Challenge to the constitutional validity of an Amending Act imposing a one-year ban on high-rise building plan applications and rejecting pending applications under Section 398-A. (Para 2 , 4 )
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1994 Supreme(SC) 1136
SUPREME COURT OF INDIA
A.M. AHMADI, C.J.I. AND N.P. SINGH, J.
Civil Appeal No. 4832 of 1992
STATE OF W.B.
Versus
TERRA FIRMA INVESTMENT & TRADING PVT. LTD.
With
Civil Appeal No. 4834 of 1992
CALCUTTA MUNICIPAL CORPORATION AND OTHERS
Versus
TERRA FIRMA INVESTMENT & TRADING PVT. LTD. AND OTHERS
Civil Appeal Nos. 4832 and 4834 of 1992
15-11-1994
Important Points
Submission of a building plan does not create a vested right to sanction. Plans must be sanctioned according to regulations prevailing at the time of sanction. Legislative bans on high-rise construction for urban planning are not inherently arbitrary or violative of Article 14.
Subject
Constitutional Law - Municipal Law
Act Referred
Headnote
Calcutta Municipal Corporation Act, 1980 - Section 398-A, 635(2)(f) - Problems of Calcuttas Urban Growth and Civic Existence - Accentuating Traffic Congestion - Dearth of Open Space - Lack of suitable Facility for Sewerage and Sanitation - Matters Connected with Act - Framing New Building Rules - Appellants that Government of West Bengal felt the necessity of framing new Building Rules under the Act to cope with present-day problems of Calcuttas urban growth and civic existence keeping in view the accentuating traffic congestion, dearth of open space, lack of suitable facility for sewerage and sanitation and other amenities. The old Building Rules were found to be not suitable and appropriate for the construction of buildings, particularly, high-rise ones. So a decision was taken to frame new Building Rules to regulate indiscriminate growth of constructions of buildings in Calcutta. With that object, the State Government formed an Expert Committee, consisting of Secretaries of different Departments concerned, as well as the Chief Government Architect, Public Works Department, and the Municipal Commissioner of Calcutta for framing the new Building Rules – Held, Building plans can only be sanctioned according to building regulations prevailing at time of sanctioning of such building plans - At present statutory bye-laws published are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favorably to builders before sanctioning of building plans already submitted, builders would certainly claim and get the advantage of regulations amended to their benefit - Appeals allowed
Legal Category Hierarchy
Table of Contents
2. Whether a temporary ban on high-rise construction and retrospective rejection of pending applications is arbitrary, irrational, and violative of Article 14 of the Constitution. (Para 6 , 13 )
3. Statutory authorities are entitled to anticipate urban growth problems; courts should not substitute their judgment on the necessity of building regulations unless they are unconstitutional. (Para 10 , 11 , 12 )
4. No legal right accrues to a builder by mere submission of a building plan; plans must be sanctioned according to regulations prevailing at the time of sanction. (Para 14 , 15 )
5. Appeals allowed and High Court judgment set aside; the provisions of the Amending Ordinance and Act are upheld as constitutional. (Para 16 )
6. Does submitting a building plan create a vested legal right to have it sanctioned?
No. The court held that no legal right accrues to a builder by the mere submission of a building plan. A legal right is only acquired once the plan is sanctioned by the competent authority. (Para 14 , 15 )
7. Which building regulations apply to a pending building plan application?
Building plans are sanctioned according to the building regulations prevailing at the time of the actual sanctioning of such plans, not the rules in force at the time of application. (Para 15 )
8. Under what circumstances can courts interfere with building regulations framed by statutory authorities?
Courts generally do not examine building regulations unless the rule or bye-law is beyond the power vested in the authority by the statutes or is hit by constitutional provisions. (Para 10 )
JUDGMENT
N.P. SINGH, J.- Two appeals, one on behalf of the State of West Bengal and the other on behalf of the Calcutta Municipal Corporation, have been filed against the same judgment of the Calcutta High Court.
2. By the impugned judgment, the High Court has held that Calcutta Municipal Corporation (Amendment) Act, 1990 (hereinafter referred to as the Amending Act) was unconstitutional and a direction has been given to Calcutta Municipal Corporation to proceed to sanction the applications for proposed construction of buildings rising above 13.5 metres in height which were pending on 18-12-1989, in accordance with the building rules which were applicable on that date.
3. The Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the Act) came into force on 4-1-1984 by which the earlier Calcutta Municipal Act, 1951 was repealed. Under the Act, power has been conferred on the State Government to make rules for all or any of the matters connected with the Act, but till December 1990, no building rule under the Act could be made. By virtue of Section 635(2)(f) of the Act, Schedule XVI of the earlier Act which contained the Building Rules continued to remain in force under the Act.
4. It is the case of the appellants that Government of West Bengal felt the necessity of framing new Building Rules under the Act to cope with the present-day problems of the Calcuttas urban growth and civic existence keeping in view the accentuating traffic congestion, dearth of open space, lack of suitable facility for sewerage and sanitation and other amenities. The old Building Rules were found to be not suitable and appropriate for the construction of buildings, particularly, high-rise ones. So a decision was taken to frame new Building Rules to regulate indiscriminate growth of constructions of buildings in Calcutta. With that object, the State Government formed an Expert Committee, consisting of Secretaries of different Departments concerned, as well as the Chief Government Architect, Public Works Department, and the Municipal Commissioner of Calcutta for framing the new Building Rules. It is said that after thorough and exhaustive consideration by the Expert Committee, the Draft Building Rules were finalised, which were modified in the light of representations, suggestions and objections received from various official and non-official quarters by the State Government. Before such rules could be brought in force, different proceedings were initiated in the High Court of Calcutta in which ex parte orders of injunction were granted restraining the State Government from publishing the rules in question. In the meantime, more and more applications continued to be submitted to the Calcutta Municipal Corporation for sanction of high-rise buildings under the old Building Rules. As there was no chance of proceedings pending before the High Court being disposed of, a decision was taken by the State Government to impose a ban on the submission of building plans for high-rise construction for a period of one year within which period it was expected that the new rules shall come in force. As the legislature was not in session, Calcutta Municipal Corporation (Amendment) Ordinance, 1989 was promulgated with effect from 18-12-1989 by which a new section i.e. Section 398-A was introduced into the Act, which is as follows:
"398-A. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, with effect from the date of coming into force of the Calcutta Municipal Corporation (Amendment) Ordinance, 1989 (hereinafter referred to in this section as the said Ordinance) and for a period of one year from such date (hereinafter referred to in this section as the said period), no person shall apply for sanction of any plan to erect a building exceeding thirteen and a half metres in height.
(2) Any application for sanction of any plan to erect a building exceeding thirteen and a half metres in height, submitted by any person
