CALCUTTA MUNICIPAL CORPORATION & ANR.

v.

SRI ANIL RATAN BANERJEE AND ORS.

OCTOBER 26, 1994

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

Calcutta Municipal Corporation Act, 1951-Bengal Municipal Act,

1932-Construction-Multi-storeyed

Building-No commencement within

two years after sanction

of plan-Construction after two years-Held, fresh

permission to be obtained

Bengal Municipal

Act, 1932-Sections 379, 325-Deemed sanction­

Held, not applicable when the sanction sought for is prohibited under law.

A

B

c

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.

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.

E

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.

B

c

D

Allowing the appeal, this Court

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

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

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.

F

G

IN

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

Tapas Ray, Manoj

Prasad, Deva Prasad Mukherjee, Rajesh and Mrs. B.

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

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

CALCUTT A 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

A

B

c

D

E

F

G

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194 SUPREME COURT REPORTS (1994] SUPP. 5 S.C.R.

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

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.

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

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

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

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

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

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

A

B

c

D

E

F

G

H

196 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

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,

"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

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

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

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

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,

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

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.

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.

B

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

A

B

c

D

E

F

G

H

198

SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

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

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

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

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

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

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.

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

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.

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

D

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

c

D

E

F

G

H

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

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

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.

)

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

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

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

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.

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

c

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.

V.M. Appeal allowed.

E