Tarun Chatterjee, J. - (1.) The present appeal is directed against an order dated 29th June, 1987 passed by a Single Judge of this Court on an application filed by the appellant (Calcutta Metropolitan Development Authority) for recalling and/or modification of the order dated 18th March, 1987 passed by him in a Writ proceeding.
(2.) The facts of the present case are as follows : The petitioner purchased two cottahs of land being a part and portion of premises No. 15, Dum Dum Road, Calcutta-30 (subsequently referred as 31/2A Birpara Lane, Calcutta) for valuable consideration by a registered deed of sale dated 16th August, 1984. After purchase of the same, the petitioner filed an application for mutating her name in the records of the Calcutta Municipal Corporation (hereinafter referred to as the CMC) and on mutation and separation by the CMC the said premises case to be numbered as 31/2A, Birpara Lane, Calcutta. The petitioner thereafter on or about 24th February, 1985 for the purpose of constructing a residential house of her own submitted a building plan before the CMC. The CMC in its turn directed the petitioner to obtain a 'No objection' Certificate from the Calcutta Improvement Trust (hereinafter referred to as CIT) and also from the Calcutta Metropolitan Development Authority. (hereinafter referred to as CMDA). The CIT on 7th November, 1985 issued a 'No objection' certificate in favour of the petitioner by which the CIT did not raise any objection against the proposed construction of a residential building by the petitioner. The CMDA however by a letter dated 19th February, 1986 refused permission for construction of the residential building of the petitioner on the ground that the land in question has been earmarked for Rehabilitation Site under the Urban Renewal Scheme of CMDA around Dum Dum Railway Station. The CMDA did not issue any "No objection certificate" in favour of the petitioner on the aforesaid ground. The ' CMC in its turn could not sanction the building plan of the petitioner on the ground of her inability to get a 'No objection certificate' from CMDA. Finding no other alternative the petitioner on 27th February, 1987 moved an application under Article 226 of the Constitution of India against the Appellant and others praying for a direction upon the Appellant not to give any effect to and or to withdraw or cancel or rescind the letter dated 19th day of February 1986 issued by the CMDA whereby the CMDA had refused to accord permission to construct residential building on the aforesaid plot of land to the Writ Petitioner. It was also prayed in the said Writ Petition that the CMDA be directed to issue 'No objection' certificate and the CMC be directed to sanction the building plan submitted by the petitioner with the CMC. At the time of moving the said Writ Application ad-interim order of injunction restraining the Appellant and the CMC their agents. servants and subordinates and each of them from taking any steps in terms of the purported objection of the CMDA by its letter dated 19th February, 1986 was issued. The petitioner was directed to serve a copy of the said order upon the Appellant and the CMC liberty was given to the Appellant and the CMC to pray before the learned Single Judge to ask for vacation and/or variation and/or modification of the said interim order upon notice to the Writ Petitioner. On 2nd March, 1987 the notice of the Writ Petition and the order passed by the learned Single Judge on 27th February, 1987 were served upon the Appellant and the CMC. On 17th March, 1987 the matter appeared in the list of the learned Single Judge but none appeared on behalf of the Appellant and the CMC and the matter was adjourned to 18th March, 1987. On 18th March, 1987 the matter again appeared in the list of the learned Single Judge and again no one appeared on behalf of the said respondents. On the same date the learned Single Judge after hearing the learned Advocate for the Writ Petitioner passed a further interim order directing the CMC to ignore the letter dated 19th February, 1986 issued by the CMDA and further directing the CMC to sanction the building plan already submitted by the Writ Petitioner without having any 'No objection certificate' from the CMDA for the proposed construction of the residential building of the Writ Petitioner. It appears that on or about 30th March, 1987 only the Appellant filed an application for recalling the order dated 18th March, 1987 (hereinafter referred to as the said application) passed by the learned Single Judge of this Court and the learned Single Judge was pleased to pass an order to the effect that the petitioner shall not start any construction on the aforesaid plot of land without the leave of the court and directions for affidavits were given and it was further directed that the matter would come up for hearing again on 19th April, 1987 again. It further appears that on or about 23rd April, 1987, the CMC sanctioned the building plan in respect of the premises in question on the basis of the order passed by the learned; Single Judge on 18th March, 1987. The said application was made on the ground that the appellant could not appear at the time of hearing of the writ application as they were misled by the wrong printing of the names of parties in the cause list of that date, but mainly it was filed on the ground that the Public Beneficial Scheme would be affected and jeopardised unnecessarily. The said application was taken up for hearing on 29th, June, 1987 when the learned Single Judge rejected the said application of the Appellant holding that such an application was misconceived as there was no plan for extension although it might be framed in future. It was further held by the learned Single Judge that CMDA could not direct the Corporation not to sanction the plan without its 'No Objection Certificate'. It has been further held that s. 396 of the Calcutta Municipal Corporation Act (hereinafter referred to as the said Municipal Act) does not provide that sanction of Building Plan could be refused in the absence of No Objection Certificate from the CMDA and that CMDA has no jurisdiction under the law to refuse such permission or prevent the Corporation from sanctioning the plan according to the provisions of the Calcutta Municipal Corporation Act. The learned Judge came to a finding that the order to get a plan sanctioned, permission is not necessary on the basis of a Single Bench decision of this Court reported in 1986(1) CHN 380 (Samaresh Das v. CMC) . Having aggrieved by the same, this appeal has been preferred by CMDA. Be it noted herein that CMDA, the Appellant herein did not prefer any appeal against the original order dated 18th March, 1987 passed by the learned Single Judge of this Court. It appears from the order impugned that the said application was disposed of on the basis of the merits of the writ petition and on the basis of the questions of law agitated before the learned Single Judge by the respective parties.
(3.) It may be pointed out that during the pendency of the appeal an application in the appeal for stay of operation of the impugned order passed by the learned Single Judge, was filed by the Appellant and in course of hearing of the stay application before a Division Bench of this Court, it was admitted on behalf of the Appellant that no Gazette publication under s. 38 of the West Bengal Town and Country (Planning and Development) Act, 1979 (hereinafter referred to as the Planning Act) in respect of the area in question has yet been made. The Division Bench of this Court however passed an order on 14th September, 1987 directing the petitioner not to make any further construction till the disposal of the appeal. It appears that in the said application for stay the CMDA also annexed a letter dated 29th July, 1987/3rd August, 1987 of the CMDA addressed to the 1st Land Acquisition Collector, Calcutta requesting urgent requisition of the plot of land under the West Bengal Act II of 1948 and for delivering possession thereof to the CMDA as the land as per site plan in needed very urgently for public purpose namely for rehabilitation of displaced persons from Bangladesh. An affidavit was also affirmed by the petitioner in the appeal wherein the writ petitioner had annexed a letter of an adjoining owner wherefrom it would appear that the land of the petitioner in that area does not come under the aforesaid scheme.;