B.P.Banerjee, J. - (1.) This is an appeal against the judgment and order dated July 10, 1990 passed by the learned trial Judge in Matter No. 2235 of 1988. By that order the learned trial Judge dismissed the writ application filed by the appellants writ petitioners. The appellant company is the owner of premises No. 5, Pretoria Street, Calcutta (now known as Dr. Barendra Coomar Sarani, Calcutta) on which there is already a four storeyed building which had been constructed. The said construction was made on the basis of a sanctioned plan. The area of the said premises is 2533.3 square meters, the plinth area is only 693.094 square meters and the total covered area of all the floors is 1909.92 square meters. The height of the existing building is 13.5 meters. The floor area ratio calculated in accordance with the provisions in Rule 21 of Schedule XVI of the Calcutta Municipal Corporation Act, 1951 (hereinafter referred to as "the said Act") read with Section 635 is 2.3719. According to that ratio it was alleged that the permissible floor area of the said premises to be 6008.7 square meters, whereas the existing floor area is 1909.92 square meters. The dispute started when a proposed building plan for addition of two more floors on the existing building in the said premises was submitted. The same was submitted on or about May 3, 1986. On February 17, 1987 the appellants informed the municipal authorities that they had changed their Architects. Messrs. D.C. Ghoah & Associates and, instead, appointed a new Architect, Shri Amitava Raha and on or about February 23, 1987 the appellants submitted a fresh plan for construction of two additional stories instead and place of the proposed plan submitted on May 3, 1986 with the necessary fees. After taking into consideration of the existing and the additional two proposed floors as against the permissible floor area of 8008.734 square meters, the revised proposal was for construction of 2883.438 square meters only. The proposed height of the building was 19.09 meters. On September 23, 1987 the appellants received a letter from the respondent No. 4 in which it was stated that the application for sanction of building plan submitted by the appellants was placed before the Municipal Building Committee for construction on September, 2, 1987 when the said building committee passed the following resolution : "This is a proposal for additional of 5th and 6th Storey over the four storeyed existing building. The site a huts on Pretoria Street which is very narrow. Due to the proposal, extra traffic flow will be generated. The Pretoria Street is already overloaded from traffic point of view. It is, therefore, recommended that the party be asked to leave so much of land to make Pretoria Street 13 meters wide and that strip of land should be free gifted to Calcutta Municipal Corporation. If the party agrees to comply with above and all other departmental requisitions, the case may be recommended for sanction."
(2.) On receipt of the said letter, the appellant by the letter dated October 16, 1987 informed the respondent No. 4 that no extra traffic flow would be generated with the addition of two additional storeys over the existing building, the same being a private residential house in the occupation of one family only. The appellant Writ petitioners, however, stated that they agreed to co-operate with the Calcutta Municipal Corporation for widening of Pretoria Street.
(3.) Thereafter, the appellant Writ petitioners did not receive any reply to the said letter whereupon the appellant Writ petitioners asked the Architect to discuss the matter with the Building Department of the respondent No. 1. The appellant Writ petitioners came to know through the Architect that the respondent No. 1 was insisting on a free gift of a certain portion of the land from said premises which was allegedly required for widening of Pretoria Street and making it 13 meters wide. The appellant's case is that although the appellant writ petitioners were not bound in law to make such free gift of land and although the respondent authorities had no jurisdiction to insist on such a precondition of making gift of land for sanction of building plan the applicant writ petitioners as a gesture of goodwill agreed to make free gift of a portion of the said premises which would be required for widening of the road. The appellant writ petitioners whereupon recorded an undertaking for making free gift of a portion of the said premises as would be required to make Pretoria Street 13 meters wide. The said portion was shown in the plan which had been submitted to the Calcutta Municipal Corporation for sanction and the appellant writ petitioners undertook to keep the said portion vacant and not to make any pucca construction thereon. The appellant Writ Petitioners further undertook that whenever any scheme for widening of the Pretoria Street would be undertaken by the Calcutta Municipal Corporation, the appellant Writ Petitioners would execute and register necessary documents for gifting of the said open land in favour of the Calcutta Municipal Corporation or Calcutta Improvement Trust as may be necessary. The said undertaking was also presented for registration with the Registrar of Assurance, Calcutta. Thereafter, by the letter dated November 23, 1987, the appellant company forwarded a copy of the letter dated November 21, 1987 from Messrs. Jhunjhunwalla & Co. in advance of the receipt dated November 29, 1987 granted by the Registrar of Assurance. The said letter was duly received by the Respondent No. 1 on November 27, 1987.;