K.J.Sengupta, J. - (1.) Both the writ petitions have similarity on fact and in law as the controversies therein raised and reliefs sought for are common and identical. In both the cases the petitioners are the promoters, developers and builders and they have acquired respective plots of land by the side of VIP Road now (Kazi Nazrul Islam Avenue). The petitioners in the first mentioned writ petition are concerned with premises Nos. 50/1, 50/2, 50/3, 50/4, 50/5, Gollaghata Street, Kolkata - 700 048 situate within the jurisdiction of 24-Parganas (North). The petitioners in the second mentioned writ petition are concerned with 290/1, Canal Street, Kolkata. Both the aforesaid plots of land are situated within the South Dumdum Municipal area. The admitted fact on both the cases is that the petitioners acquired the lands and developed the same after having obtained permission from all concerned and, in fact, they have obtained sanction of the building plans originally for certain stories. There has been no objection, no difficulty at any point of time. After sometime they decided to increase the stories of the building or to improve the building. So, they applied for revision of the building plan already sanctioned by the South Dumdum Municipal Authorities. In terms of the sanctioned plan already granted, both the petitioners constructed building floors at a certain level. Before sanction of the building plans the South Dumdum Municipal Authority duly realized a substantial amount on account of development of the area, and that area was developed by the municipal authority. Now the grievance of both the petitioners is that the municipal authority have sat tight over the matter and refused to grant any permission and/or sanction to revision of the building plans on the plea that in view of notification issued by the Kolkata Metropolitan Development Authority, the respondent No. 4, dated 24th October, 1997, no objection and /or permission is required from the Court to proceed for sanctioning the revised building plan. They are aggrieved by the above inaction and/or refusal of the municipal authority. The aforesaid two writ petitions have been filed for relief in a sense for getting sanction for the revision of the building plan and to deliver the same to enable the petitioners to construct the buildings. After the writ petitions have been filed directions were given for filing affidavit in both the matters. In one of the matters after affidavit-in-opposition was filed the petitioner made an application for summary disposal of the matter on the basis of the statement and averment made by the respondents in the affidavit-in-opposition and also disclosure of the documents by the respondents annexed thereto. In another writ petition in spite of direction for filing affidavit-in-opposition was given, however, ultimately before or in course of hearing such affidavit was filed. The aforesaid two applications for summary disposal of the matters were also taken up.
(2.) For the sake of convenience the writ petitions as well as connected applications were taken up for hearing and for disposal of the same finally.
(3.) Mr. Anindya Mitra, with senior Advocates Mr. Debal Banerjee and Mr. Abhrajit Mitra appearing for both the writ petitioners contends that municipal authority has no jurisdiction to withhold sanction to the revision of the building plan on the plea of non-availability of permission from the KMDA. In the four corners of the West Bengal Municipal Act, 1993 and rules framed thereunder, there is no whisper for production of no objection certificate of KMDA. At the time of initial sanction to the building plan no such demand was made. In fact. Municipality has sanctioned to the revision of the building plan submitted on 31st March, 2004 in the case of Landmark. However, they are unable to deliver the said sanctioned building plan on the aforesaid plea. It has been held by this Court in case of Giridharilal Soni vs. Municipal Commissioner, Calcutta Municipal Corporation & Ors., reported in AIR 2001 Cal 12 that 'No Objection Certificate' is neither a condition for granting of sanction of a plan nor absence of such 'No Objection Certificate' is ground for refusing grant of sanction of a plan. In any event, the notification dated 3rd February, 1997 issued by the KMDA on which the municipal authority is relying is ineffective and invalid as the same has not been published in accordance with the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979. The said notification was not gazetted as required under the provision of the aforesaid Act. Moreover, he contends, the said notification dated 3rd February, 1997 is for amendment of the notification dated 6th April. 1995 by way of inclusion of VIP Road in the notification dated 6th April, 1985. The said notification of 6th April, 1985 is of limited duration i.e. pending preparation of development plan in respect of the concerned planning area. According to him, upon preparation and publication of the development plan the interim notification has ceased to be operative. Development plan in respect of the said area has admittedly been published as the same has, in fact, been prepared and sanctioned on 16th December, 1998. Each and every notification has to be gazetted under section 2(15) of the West Bengal Town and Country (Planning and Development) Act, 1979. Therefore, the said notification is not effective. There cannot be any embargo for the municipal bodies to either sanction the revised building plan or deliver the same if it is sanctioned.;