CALCUTTA MUNICIPAL CORPORATION & ANR.versusSRI ANIL RATAN BANERJEE AND ORS.

          CALCUTTA MUNICIPAL CORPORATION & ANR.                              A
                           v.
               SRI ANIL RATAN BANERJEE AND ORS.

                          OCTOBER 26, 1994

           [B.P. JEEV AN REDDY AND SUHAS C. SEN, JJ.]                        B

    Calcutta Municipal Corporation Act, 1951-Bengal Municipal Act,
1932-Construction-Multi-storeyed Building-No commencement within
two years after sanction ofplan-Construction after two years-Held, fresh
permission to be obtained
                                                                             c
    Bengal Municipal Act, 1932-Sections 379, 325-Deemed sanction-
Held, not applicable when the sanction sought for is prohibited under law.

     The Respondents entered into an Agreement with an owner of a
site. The Vendor at the instance of the Respondent had sought
permission for construction of eight storeyed building, which was D
sanctioned on 27.4.1985.

    The permission became inoperative since no construction took
place in the site due to disputes between the Respondents and the
Vendor.
                                                                             E
    The Respondents withi~ the said period of two years, on 2.2.1987
applied for sanction of a revised building plan with a changed layout.
They also appl!ed for renewal of sanctioned plan on 16.4.87.

     On 24.8.1987 the Respondents applied for permission to construct
twelve floors on the basis of a new plan. Since no orders were passed in F
any of these applications, the Respondents started to proceed with the
construction in view of deemed permission - when it was obstructed,
the Respondents preferred a writ petition in the High Court against the
petitioners. During the pendency of the writ petition, the Single Judge
had allowed the Respondents to make construction upto ground floor
levels by interim orders subject to an undertaking that they would G
demolish the construction, if it is found to have been made in violation
of the Plan submitted on 24th August, 1987.

     The writ petition was allowed. The Writ Appeal filed by the
petitioners was also dismissed. In the present S.L.P., the petitioners
contended that (1) the Plan sanctioned on 27.4.1985 stood lapsed due to      H
                                   191
    192                     SUPREME COURT REPORTS         [1994] SUPP. 5 S.C.R.

A   no construction activity; (2) there is no provision for renewal of
    sanction; (3) the sanction for 12 floors could not have been granted due
    to the law in force and (4) the maximum permissible height of the
    building is only 8 meters.

          Allowing the appeal, this Court
B       HELD : 1. The responden~s are not legally entitled to make any
    construction on the basis of the deemed sanctioned plan (submitted on
    August 24., 1987) on or after September 24, 1989. (200-D)

         2. The High Court was, in error in permitting the respondents to
    proceed with the construction of the twelve storey building on the basis
c   of the Plan submitted on 24.8.1987 and in giving other allied directions.
                                                                      (200-E)

        3. The construction made pursuant to the orders of the High Court
    should allowed to be retained and two more floors may be constructed
    by the Respondents but not so as to exceed the total height of eight
D   metres - and not at any rate beyond nine meters. (201-A)

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7056 of
    1994.

         From the Judgment and Order dated 29.3.94 of the Calcutta High Court
E   in F.M.A.T. No. 1718of1992.

                                         IN

          Special Leave Petition (C) No. 10331 of 1994.

        Tapas Ray, Manoj Prasad, Deva Prasad Mukherjee, Rajesh and Mrs. B.
F   Sunita Rao for the Appellar.ts/Petitioner.

        K.K. Venugopal and Robin Mukherjee, Rajendra Singhvi and Ashok
    K. Singh for the Respondents.

          The Judgment of the Court was delivered by
G
         B.P. JEEV AN REDDY, J. Leave granted. Heard counsel for the
    parties.

         The appeal is preferred by the Calcutta Municipal Corporation against
    the judgment of a Division Bench of the Calcutta High Court dismissing
H   F.M.A.T. No. 1718of1992 which was directed against the.iudgment ofa
    CALCUTTA MUN. CORPN. v. A. R. BANERJEE [JEEV AN REDDY, J.] 193

learned single Judge allowing the writ petition filed by the respondents. The A .  0




matter pertains to the grant of permission for construction of a multi-storey
building in the South Suburban area of Calcutta.

     Until January 4, 1984, the Calcutta Municipal Corporation Act, 1951
governed the area then comprised in Calcutta municipality. The South
Suburban area, with which we are concerned herein, was not a part of B
Calcutta Municipal Corporation area until that date. It was an independent
municipality, governed by the Bengal Municipal Act, 1932. On January 4,
1984, the South Suburban municipal area alongwith certain other municipal
areas was merged with the Calcutta municipal corporation area and a new
Act viz., The Calcutta Municipal Corporation Act, 1980 was brought into C
force in place of the Calcutta Municipal Corporation Act, 1951. Even so,
the new Act governed and applied only to the original Calcutta municipal
corporation area but not to the newly added areas including the South
Suburban area. Since, regulations governing the construction of buildings
were not framed under the 1980 Act, the regulations made under the 1951 ·
Act continued to govern the original Calcutta municipal area, while the D
Bengal Municipal Act, 1932 including the regulations made thereunder
continued to govern the newly added areas including South Suburban area,
by virtue of Section 635 (ii) (g) of the 1980 Act.

     On February 20, 1989, the Bengal Municipal Act and the rules made
thereunder ceased to apply to the newly added areas by virtue of an E
amendment to the Calcutta Municipal Corporation Act, 1980. The 1980 Act
was extended to the said newly added areas with effect from the said date.
(This was the effect of omission of clause (g) of Section 635 (ii) with effect
from the said date.) On 12th December, 1990, new building rules were
issued under the Calcutta Municipal Corporation Act, 1980.                     F
     The respondents-writ petitioners entered into an agreement with the
owner of the site concerned herein, Sri D.R.K. Kamani, to purchase the
same. They say that, at their instance, Sri Kamani applied to the Calcutta
municipal corporation for permission to construct a multi-storeyed complex
on the said site, which is situated within the erstwhile South Suburban G
municipal area. On April 27, 1985, the municipal corporation sanctioned
the plan for the construction of a eight-storeyed building. This sanction, it is
obvious, was given under and governed by the provisions of Bengal
Municipal Act, 1932 and the regulations made thereunder, which were in
force in the said area at that time. However, no construction was made - not
even commenced - within two years of the permission, with the result that H
    194                     SUPREME COURT REPORTS           (1994] SUPP. 5 S.C.R.

A   the said permission became ineffective and inoperative on the expiry of the
    said period.

         On F<:bruary 2, 1987, i.e., within the said two years period, the
    respondents applied for sanction of a revised building plan with eight
    stories but with a changed layout. On April 16, 1987, the respondents
B   applied for renewal of the sanctioned plan dated April 27, 1985, without
    withdrawing the application for the revised plan submitted on February 15,
    1987.

          On August 24, 1987 the respondents applied for perm1ss1on to
    construct a building comprising of twelve floors on the basis of a new plan.
c   No orders were passed by the Corporation authorities on any of these three
    applications within thirty days of their respective submission. On this basis,
    the respondents say and assert that the permission applied for by them on
    August 24, 1987 must be deemed to have been sanctioned on the expiry of
    thirty days by virtue of the Section 319 of the Bengal Municipal Act, 1932.
    {The municipal corporation, however, says that the said plan was rejected
D   on April 29, 1988; the respondents dispute the receipt of any such order.)
    The respondents' case is that when they proposed to proceed with the
    construction of the building in accordance with the plan submitted on
    August 24, 1987, in view of the deemed permission, the authorities of the
    corporation obstructed the same and did not allow the constrnction to
    proceed. This obstruction, according to the respondents, disentitles the
E   municipal corporation from objecting to or interfering with their
    construction even after the expiry of two years from August 24, 1987. - or
    from September 24, 1987 (the dee.med permission is available and effective
    from September 24, 1987, i.e., on the expiry of thirty days from the date of
    application); as the case may be. The appellant-corporation, however, says,
    firstly, that the respondents ~re not entitled to any deemed permission of the
F   plan applied for on August 24, 1987 inasmuch as the law then governing
    did not pennit construction of a twelve-storey building on the plot of the
    respondents, having regard to the width of the road abutting the said
    plot/site. Secondly, they say that even if it is assumed that any such deemed
    pennission can be invoked by the respondents, the same came to an end on
    the expiry of two years, i.e., on September 24, 1989 and inasmuch as the
G   respondents have not constructed the building within the said period of two
    years, the deemed pennission, if any, can no longer enure to them
    thereafter. They deny that they ever interfered with the construction of the
    building by the Respondents. According to them, no construction
    whatsoever was undertaken on the said plot on account of the differences
H   and disputes between the respondents and their vendor, Sri Kamani.
.        CALCUITA MUN. CORPN. v. A. R. BANERJEE [JEEVAN REDDY, J.) 195
                                           .             .

        Be that as it may, the respondents approached the Calcutta High Court A
    by way of Writ Petition No. I 1814 of 1989 on September 28, 1989. The
    prayers in the writ petition are the following :

         (a) to direct the respondent-corporation to issue a formal letter
    certifying the building plan submitted on August 24, I 987 in terms of
    Section 319 of the Bengal Municipal Act, 1932;                         B
         (b) to direct the municipality to issue a formal letter sanctioning the
    revised building plan submitted on February 15, 1987 under Section 319 of
    the I 932 Act;

          (c) to restrain the municipality from interfering with their construction C
     in accordance with the plan submitted by them;

       (d) to restrain the municipality from giving effect to any order (not
    communicated to the writ petitioners) in respect of the matters in issue;

        (e) for a declaration that the plans submitted on August 24, 1987 and D
    February 15, 1987 are sanctioned by operation oflaw.

          The learned Single Judge allowed the writ petition on the following
    · reasoning:

         I. That there was no bar or impediment to renew the sanctioned plan E
    (for eight-storeyed building) granted on April 27, 1985, inasmuch as the
    said sanction was given on a consideration of all the relevant factors and
    also because there has been no change in the circumstances warranting
    refusal of renewal.

         2. The building plan submitted on August 24, 1987 (for a twelve-            F
    storeyed building) fulfils the requisites of law and inasmuch as it was not
    rejected within a period of thirty days, it must be deemed to have been
    sanctioned on the expiry of thirty days. The writ petitioners have a riglrt to
    start the construction in terms of such deetll"ed sanctioned plan.

         The respondents were, accordingly, directed to permit the writ              G
    petitioners to proceed with the construction in terms of the revised building
    plan filed on August 24, 1987 on condition that the petitioners will not
    commit breach of any relevant Rules or bye-laws prevailing on the date of
    filing of the said plan. The corporation was further directed to issue a
    formal permission within sixty days. It was also directed that the said plan     H
    196                      SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

A   must be deemed to have been sanctioned from the date of the said judgment
    and its validity period shall be two years from that date.

          On Appeal, the Division Bench referred to the frequent legislative
    changes (referred to at the inception of this judgment) and opined that since
    it is difficult for the ordinary people to keep track of the legislative changes,
B   "the Court has to take a practical and pragmatic view of the matter." It held
    that "the plan submitted on August 24, 1987 should be treated as deemed to
    have been sanctioned as within the period of thirty days no objection was
    taken. Subsequent objection beyond that statutory period of thirty days
    cannot change the legal fiction inasmuch as in every case of deemed
    sanction, construction has to be made strictly in accordance with the rules
c   and regulations or in other words no construction could be made on the
    basis of a deemed sanction of plan in contravention of the building rules
    and regulations prevailing at the time when such plan w~ deemed to have
    been sanctioned." The Division Bench thus affirmed the finding of the
    learned single Judge that the writ petitioners have a right to make
    construction in accordance with the plan submitted on August 24, 1987 and
D
    that it must be deemed to have been sanctioned on the expiry of thirty days
    therefrom. The· correctness of the said view is questioned by the Calcutta
    municipal corporation in this Appeal.

         Shri Tapas Ray, learned counsel for the municipal corporation, urged
E   the following contentions:

         1. That the plan sanctioned on April 27, 1985 for a eight-storeyed
    building lapsed on 26th of April, 1987 since no construction was made and
    completed within two years. Indeed, no construction was commenced by
    that date. It is true that on April 16, 1987 the respondents applied ;or
F   renewal of the said plan but there was no provision in the Bengal Municipal
    Act for granting such renewal. Even assuming that such renewal could be
    granted and must be deemed to have been granted, such deemed renewal
    too expired on April 16, 1989 or, at any rate, on April 26, 1989.
    Admittedly, no construction was made, much less completed, by the said
    date. In other words, the sanction of the said plan, both actual and deemed,
G   lapsed by 26th of April, 1987 and 26th April 1989 respectively. 'No
    construction can be permitted on the basis of such plan after the said dates.

        2. So far as the deemed sanction of the twelve-storeyed building
    applied for on August 24, 1987 is concerned, it cannot be deemed to have
    been sanctioned on the expiry of thirty days by virtue of Section 319 of the
H   Bengal ' Municipal Act for the reason that no such permission could have
    CALCUTTA MUN. CORPN. v. A. R. BANERJEE [JEEVAN REDDY, J.] 197

been actually grahted under the law then in force in the said area, having A
regard to the width of the road abutting the respondents' plot and other
relevant circumstances. The Division Bench has itself recognised that the
deemed permissiob cannot be inconsistent with the relevant rules and
regulations. No deemed pe:mission can be conceived of which is
inconsistent with die relevant rules and regulations.
                                                                                 B
     3. The position today is that the building rules framed in the year, 1990
(with effect from !December I, 1990) are more stringent than the pre-
existing rules and regulations. According to these rules the maximum
height of a building in the respondents' plot cannot exceed eight metres.

    4. Both the learned single Judge and the Division Bench erred in not C
examining the question whether the plan for twelve-storeyed building
applied for by the respondents on August 24, 1987 could at all have been
granted in accordance with the law then in force in the said area. This
should have been done before granting the declaration that the said plan
must be deemed to have been granted and that the respondents are entitled
to make construction in accordance therewith.                             D
     5. The learned Judges of the High Court were not justified in holding
that the municipal authorities were negligent in responding to the
respondents' applications for permission. It is equally not correct to suggest
that the respondents are entitled to an extended period for constructing a
building on account of the alleged obstruction by the municipal authorities. E
Since no construction was ever made, there was no obstruction by the
authorities, and even if there was such obstruction, it was perfectly valid
and justified since the respondents had no authority in law to proceed with
the construction.

     Sri K.K. Venugopal, learned counsel appearing for the respondents- F
writ petitioners, supported the reasoning and conclusion of the High Court
and submitted that the writ issued by the High Court is nothing more than a
formalisation of the legal position obtaining by virtue of Section 319 of the
1932 Act. Learned counsel also brought to our notice, by way of written
submissions, certain subsequent developments which according to the G
learned counsel establish the mala tides on the part of the Corporation.

     Now it is true that on April 27, 1985 permission was granted for
construction of a eight-storey building on the premises in question. But it is
admitted, at the same time, that no construction could be made within the
period of two years therefrom because of the disputes between the                H
    198                     SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   respondents and Sri Karnani. (The learned single Judge has referred -to
    these disputes in his Judgment and observed that because of these disputes,~
    no construction could be undertaken by the writ petitioners. The learned
    Judge has also recorded that the writ petitioners had to file a Suit for
    specific performance which came to an end only when conveyance deeds
    were executed through Court in favour of the writ petitioners. To the same
B   effect is the statement of the Respondents-writ petitioners in Para 4 (g) of
    their counter filed in this appeal). These disputes were settled only some
    time later. (A mutation certificate was granted on July 4, 1989 by Calcutta
    municipal corporation in favour of the respondents.) By virtue of Section
    325 of the 1932 Act, no construction can be carried on after the expiry of
    two years from the date of grant of permission. The petitioners say that they
c   had applied for renewal of the said sanctioned plan on April 16, 1987.
    Assuming that an application for renewal was indeed made and even if by
    virtue of the fiction contained in Section 319 the said renewal permission is
    deemed to have been granted, even then this renewed deemed permission
    expired on April 16, 1989 - and, admittedly, even by this date no
D   construction has been made on the premises. On 24th August, 1987 the
    respondents had applied for permission to construct a twelve-storey
    building and even if we assume that such a permission must be deemed to
    liave been granted by virtue of the Section 319, this deemed permission too
    came to an end on August 24, 1989 or say, on September 24, 1989. It has
    been found by the learned single Judge that "Admittedly, no construction
E   has been raised within the premises either in terms of the first building plan
    sanctioned in 1985 or in terms of the revised plan filed subsequently. There
    is neither any specified permission of renewal nor there is any thing on
    record to show that the writ petitioners have been permitted to go with the
    construction either in terms of the first building plan or in terms of the
    revised building plan." The Division Bench has not recorded any finding to
F   the ~ontrary. Indeed, the Division Bench has also recorded that "In the
    instant case, because of pendency of litigation and disputes the owner did
    not think it is to be fit to make any investment until and unless the matter is
    set at rest." Thus, it is clear that even by September 24, 1989, no
    construction was made by the respondents on the said premises.
G       The respondents, no doubt, assert that they had commenced
    construction before 24th August, 1989 and that it could not be proceeded
    with an account of the obstruction by the municipal authorities. Sri
    Venugopal brought to our notice a notice issued by the municipal
    corporation dated 21st November, 1990 and a commencement report dated
H   October 14, 1991. But these are all proceedings subsequent to September
    CALCUTTA MUN. CORPN. v. A. R. BANERJEE [JEEVAN REDDY, J.] 199

24, 1989 and also subsequent to the filing of the writ petition and cannot,      A
therefore, help the respondents' assertion. The respondents rely upon an
observation in the judgment of the Division Bench to the following effect:

               "That apart, construction has actually taken place on the
               basis of a plan that could have been sanctioned as the law
               prevailing at that time in that event nothing could have been B
               done."

     But the above sentence - assuming that it is a correct rendering - is
followed immediately by the following observation :

               "In the ins.tant case, because of pendency of litigation and      C
               disputes, the owner did not think it to be fit to make any
               investment until and unless the matter is set at rest."

     In the circumstances, it must be held that no construction was made by
the respondents on the said site upto 24th September 1989.
                                                                                 D
     Apart from the above, there is yet another problem in the way of the
respondents. Section 319 expressly states that even in case of a deemed
permission, the applicant cannot execute the work '.'so· as to contravene any
of the provisions of this Act or of Schedule VI or any Rule or Bye-law
applying thereto." Neither the learned single Judge nor the Division Bench
have gone into and/or recorded any finding that having regard to the E
position of law obtaining on 24th August, 1987 and the width of the road
on which the said premises abuts, a pennission for twelve-storey building
could have been granted. Neither the learned single Judge nor the Division
Bench have gone into this aspect. They have assumed that such a
permission could have been granted. The said assumption is challenged by
the corporation before us.                                                    F
     Assuming that permission for a twelve-floors building could have been
granted under the law obtaining in August 1987, the question still remains -
not having made any construction on the basis of the said plan before
September 24, 1989, can any construction be made thereafter? The answer
can only be in the negative. Indeed; even if any construction was                G
commenced before that date, it qnnot be continued thereafter according to
Section 325 of the Bengal Municipal Act. It must be remembered that the
writ petition itself was filed on 28th September, 1989, i.e., after the expiry
of the two years period from August 24, 1987 or from September 24, 1987,
as the case may be. The new Building Rules issued under the Calcutta
Municipal Act, 1980 came into force on and from 12th December, 1990.             H
    200                     SUPREME COURT REPORTS             [1994] SUPP. 5 S.C.R.

A   Inasmuch as the respondents had not made the construction wi'.:bin the two
    years' period of any of the three applications afo1esaid and also because
    there was not even an application for renewal of the alleged deemed
    sanction on the basis of the plan submitted on August 24, 1987, no
    construction could have been carried on by the respondents after September
    24, 1989, unless they obtained a fresh pennission according to law.
B
         It is brought to our notice by the learned counsel for the Respondents
    that by an order dated November 29, 1990, a learned single Judge of the
    High Court had allowed the respondents "to make construction upto the
    ground floor level in suppression of the notice dated 21st November, 1990
    as :ssued by the District Building Survaeyor under Section 40 l of the
c   Calcutta Municipal Corporation Act, 1980" subject to an undertaking that
    they would demolish the construction, if it is found to have been made in
    violation of the plan submitted on 24th August, 1987. All this shows again
    that the only construction that has been made is of the ground floor and that
    too under the interin:i orders of the High Court in the present proceedings.
    In the above circumstances, it must be held that the respondents are not
D   legally entitled to make any construction on the basis of the deemed
    sanctioned plan (submitted on August 24, 1987) on or after September 24,
     1989 - or for that matter, after the filing of the writ petition. The High Court
    was, therefore, in error in pennitting the respondents (writ petitioners) to
    proceed with the construction of the twelve-storey building on the basis of
    the plan submitted 0n August 24, 1987 and in giving other allied directions.
E                       )

         In view of the fact that the respondents' vendor was granted pennission
    for a eight-storey puilding on 27.4.1985 and because of other relevant facts
    and circurrystancls of this case, we called upon the learned counsel for the
    corporation to tellr us whether it is possible for the corporation to grant
    pennission today for construction of a building on the said premises as per
F   the plan sanctioned on April 27, 1985 or as per the plan applied for on
    August 24, 1987. 'the learned counsel has, however, stated after obtaining
    instru~tions from the corporation that no pennission beyond the height of
    eight meters can 6e granted in the said premises having regard all the
    relevl:lnt facts and circumstances. It is also stated by the learned counsel that
G   the site .in question is abutting on a road with a width of less than 3.5 meters
    and in view of t~at fact also, construction of a building of a height
    exceeding eight meters cannot be pennitted.

         The question then arises as to what should be done with the
    construction of ground floor which has already taken place on the basis of
H   the interim orders of the I-Jigh Court in accordance with the plan submitted
    CALCUTTA MUN. CORPN. v. A. R BANERJEE [JEEVAN ru:;DDY, J.] 201

on 24th August, 1987. Having regard to all the facts and circumstances of A
the case, we direct that the said construction should be allowed to be
retained and two more floors may be constructed by the respondents
thereon but not so as to exceed the total height of eight meters - and not at
any rate beyond nine meters. Having regard to the construction of ground
floor already made pursuant to the orders of t.he High Court, we do not
think it appropriate to direct the respondents to apply for fresh permission B
in accordance with the 1990 Building Rules. This direction does not,
however, preclude the respondents from applying for permission in
accordance with the Rules in force, if they are so advised, and proceed to
make construction in accordance with the permission that may be granted
thereon.
                                                                            c
     Sri Venugopal disputed the corporation's contention that the road
abutting the said premises is only of a width not exceeding 3.5 meters. It is
not possible for us to pronounce upon this disputed question of fact. It is
enough to observe that it shall be open to the respondents to approach the
concerned authorities of the corporation and if such authorities are satisfied
that the width of the road is more than 3.5 meters, they may permit the D
respondents to raise such construction or such further construction, as the
case may be, as may be permissible under the Rules now in force.

     The appeal is, accordingly, allowed with the above directions. There
shall be no order as to costs.
                                                                            E
V.M.                                                      Appeal allowed.