- (1.) The appellant is the unsuccessful writ petitioner before the learned single Judge who approached the learned single Judge seeking following reliefs in the writ petition. "Declarations do issue that the revised building plan/site plan No. A681 dated 11.06.2013 has been deemed to be sanctioned by operation of Section 278 of the West Bengal Municipal Corporation Act, 2006; b) A writ of or in the nature of Certiorari commanding the respondents and/or their servants and/or their employees and/or their agents to certify and transmit to this Hon'ble Court the records of the case, including the notice dated 07.08.2014 being "P-6" herein, so that conscionable justice may be administered by quashing the same. c) Writ in the nature of mandamus do issue, directing the respondents Corporation and their agents, employees and assigns to act in accordance with the provisions of law and not to initiate any proceeding for non-sanction of the building plan, and without complying the due process as laid down in the West Bengal Municipal Corporation Act, 2006; d) Any other appropriate writ or writs, order or orders, direction or directions; e) Rule NISI in terms of prayer (a), (b) (c) and (d) above; f) An order do issue restraining the respondents and particularly the respondent Nos.3 and 6 from acting in any manner pursuant to the notice dated 07.08.20014 being annexure "P-6" herein or from initiating any demolition proceedings without the due process of law until the disposal of the instant writ petition; g) Ad-interim order in terms of prayer (f) above; h) Costs of and incidental to this application; i) Such other or further order or orders, direction or directions as to this Hon'ble Court may deem fit and proper;"
(2.) It is not in dispute that the petitioner approached the Court seeking benefit of the provisions of Sections 278 and 279 of the West Bengal Municipal Corporation Act, 2006 contending that there is deemed sanction of revised site plan submitted by the petitioner to the Siliguri Municipal Corporation so far as premises No. 44, Sarat Bose Road, Hakim Para, Siliguri - 734 001. The facts led to filing of the present appeal are as under:- According to the appellant / writ petitioner, there was old building existing right from 1999 having four-storey building in the site in question. He further claims, when the respondent Municipality pointed out certain unauthorised construction he informed the respondent authority and demolished the unauthorised portions way back in 2011. He further contends, he submitted a revised site plan along with building plan in order to put up additional construction to the existing building. When they did not proceed to take any action on the application, according to him, he had the benefit of Sections 278 and 279. In order to substantiate his contention, he also refers to the format in which the application has to be given and according to him, it only refers to site plan and not a building plan. Therefore, he has submitted a revised site plan which according to him includes building plan also.
(3.) In response to this, learned counsel for respondent authority brings to our notice revised rules and contends that so far as deemed provision under Section 278 of the West Bengal Municipal Corporation Act, 2006 it refers to only building plan and not site plan. She also brought to our notice the requirement of clearance of a site plan even for additional construction only in order to see that the site upon which additional construction proposed to be put up in addition to the existing construction was suitable in every respect as contemplated under the procedure to have the additional construction. She has taken us through Section 259 of the West Bengal Municipal Corporation Act and Rules 3, 4 and 5 of the West Bengal Municipal (Building) Rules, 2007 which refers to revised provisions as well. Section 259 reads as under:- "259. Definitions." (1) In this chapter, unless the context otherwise requires, the expression "to erect a building" means" (a) to erect a new building on any site, whether previously built upon or not; (b) to re-erect" (i) any building of which are than one-half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed, or (ii) any building of which more than one-half of the superficial area of the external wall above the level of plinth has been pulled own, or (iii) Any frame-building of which more than half of the number of posts or beams in the external walls have been pulled down; (c) to convert into a dwelling-house any building or any part of a building not originally constructed for human habitation or if originally constructed for human habitation, subsequently appropriated for any other purpose; (d) to convert into more than one dwelling-house a building originally constructed as one dwelling-house only; (e) to concert into a place of religious worship or a sacred building any place or building not originally constructed for such purpose; (f) to roof or cover an open space between walls or buildings to the extent of the structure formed by the roofing or covering of such space; (g) to concert two or more tenements in a building into a greater or lesser number of such tenements; (h) to concert into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such, or to concert any building constructed for such purpose by sub-division or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages; (i) to convert a building, which, when originally constructed, was legally exempt from the operation of any building regulation contained in this Act or the Rules or the regulations made under this Act or contained in any other law for the time being in force, into a building which, had it been originally erected in its converted form, would, have been subject to such building regulations; (j) to convert into, or to use as dwelling- house, any building which has been discontinued as, or appropriated for any purpose other than, a dwelling-house; (k) to make any addition to a building; (l) to close or open permanently any door or window in any external wall; (m) to remove or reconstruct the principal staircase or to alter its position.";