- (1.) In this writ application writ petitioners have challenged order of refusal dt. 28th of April, 1978 under the provisions of the Urban Land Ceiling Act refusing to grant exemption u/s 20 of the Act and a declaration u/s 10(3) of the said Act published in the Calcutta Gazette dt. 15th Jan. 1980 as well as impugned notice u/s 10(3) issued by the authorities.
(2.) The writ petitioners' case in short is that the petitioner No. 1 is a company incorporated under the Companies Act, 1956 and petitioner No. 2 is one of its Directors. The Company is engaged in the business of developing land and constructing building and flats thereon for residential purpose. It purchased about 50 cottahs of land being premises No. 24/7, Raja Santosh Road, Alipore, Calcutta by a registered deed of sale on 11th June, 1974. The purchase was for construction of a multistoreyed building thereon as 'own your own flat' basis in order to implement a group housing scheme. It prepared a scheme consisting of 41 flats of dwelling units of different types. Immediately after news of the preparation of the scheme was known people rushed to them to book their respective flats. The company received considerable amount of money from different people. The details of persons who invested money has been disclosed in annexure-"A". M/s Kothari and Co. was the Architect. They prepared the plan of the said building in accordance with the rules and regulations under the Calcutta Municipal Act, 1951. The petitioner company on or about 2nd July, 1974 submitted an application under rules 50 and S1 of schedule XVI of the said Act, before the Corporation of Calcutta. On their turn Corporation of Calcutta issued a notice under rule 54 of the said schedule under the said Act and directed the petitioners to comply with the requisitions made. This notice was issued on 23rd Aug. 1974. The notice was issued beyond time, as prescribed by rule 54 but even then the petitioner company in order to expedite the matter replied to the requisition. The said reply is annexure-"B" to the writ application. The Consulting Engineer thereafter met the officers of the corporation and duly produced all the papers in connection with deed of sale and requested the authorities to send copies of the plan to Calcutta Improvement Trust and the Fire Services for having their no objection certificate. Thereafter Calcutta Corporation under rule 55 of schedule XVI neither rejected not sanctioned the said plan within a period of one month as incumbent upon them under the said rule. The plan accordingly was deemed to have been sanctioned under rule 56 of the said Schedule of the Calcutta Municipal Act enabling the petitioner company to proceed with the construction in terms of the said plan. The petitioners contend that since the plan submitted by them before coming into force of the Urban Land Ceiling Act the land cannot be treated as vacant land exceeding the ceiling limit. It raising the contention the writ petitioners have relied on Sub-Sec. (3) of Sec. 4 of the said Act. Sub-Sec. (3) lays down that notwithstanding anything contained in Sub-Sec. (1) where in respect of any vacant land any scheme for group ho using has been sanctioned by an authority competent in this behalf, immediately before the commencement of this Act, then the persons holding such vacant land at such commencement shall be entitled to continue to hold such land for the purpose of group housing. Provided that not more than one dwelling unit in the group housing shall be owned by one single person. Provided further that the extent of vacant land which such person shall be entitled to hold shall, in no case, exceed the extent required under the building regulations governing such group housing or the extent calculated by multiplying the number of dwelling units in the group housing and the appropriate ceiling limit referred to in Sub-Sec. (1). In explanation to the said Sub-Section and Sub-Sec. (1) group housing means a building constructed or to be constructed with one or more floors each floor consisting of one or more dwelling unit and having common service facility. Common service facility includes facility like stari case, balcony and verandah.
(3.) Mr. Mitra, learned Counsel in support of his submission has relied on the provisions of schedule XVI of the Calcutta Municipal Act, 1951. Under R.56 if a plan seeking permission to build is neither sanctioned nor rejected within a specified time limit it will be deemed to have been approved but such approval is in a limited form. The permission which the Municipal Commissioners are deemed to give is a permission to execute the work in accordance with the plan in so far as the plan complies with the Act and bye laws made thereunder. A deemed sanction is accordingly an authority given to the person seeking permission for construction to construct even without an express sanction but such authority to construct is limited by the provisions of the Calcutta Municipal Act and the bye laws framed thereunder. Mr. Ghosh appearing for the Corporation of Calcutta has relied on a decision reported in AIR 1948 Cal 109 Hon'ble Justice Harris held "that the fact that permission is deemed to be granted does not mean that the plan must be deemed to be in accordance with the Act and the bye laws made thereunder. The Rule was drafted to prevent delays in the case of applicants who had been careful to comply with the Act and the bye laws. If the plan complied with the Act permission would be deemed to be granted but the rule was never intended to cover plans which were clearly in contravention of the Act or the bye laws. In other words, where this permission is to be implied the person building can build only according to the Rules and bye laws. If it transpires that his plan is contrary to the Act or contrary to the bye laws implied permission will not save him. Mr. Ghosh has also referred to AIR 1980 Cal 17. A single Bench of this court held that for obtaining the benefit of a deemed sanction the application must be a valid application containing the site plan and other relevant particulars required under the said rules. If for want of such essential relevant particulars the application could not have been considered on merit and sanction given by the Corporation, there cannot be any deemed sanction under R.56. Mr. Ghosh drew my attention to annexure-'B' to the writ application. It appears that City Architect, Corporation of Calcutta wrote to the director of petitioner No. 1 requiring him to furnish information set out in schedules A and B to the said letter and satisfy the Commissioner with regard to the objections mentioned in Schedule 'C'. This was replied to by M/s. Kothari and Co. on behalf of the writ petitioners on 17th Oct. 1976. It appears from the said letter it was stated that with regard to objection mentioned in schedule 'A' they under took to produce the documents to prove their ownership of boundary wall of the plot. By schedule 3 to the letter of the City Architect no objection certificates from CIT and Fire Service were asked to be obtained. By another reply Architect of the writ petitioners undertook to show the necessary documents from CIT and Fire Services. With regard to objections under Schedule 'C' those were replied to and it was intimated that the site plan has been corrected showing access to the main road. Mr. Ghosh contended that it is apparent from the reply relied on by the writ petitioners annexure-B that the requisitions made by the Corporation were not met by the writ petitioners. They undertook to do some thing for removing the omissions but there is nothing to indicate that those undertakings were carried out. In the writ application the writ petitioners have asserted that the Architect M/s. Kothari and Co. met the Corporation Officials and satisfied him which has been denied by the Corporation in their affidavit in opposition. Accordingly it remains only an affidavit versus affidavit. There is no other material to show that in fact the writ petitioners complied with the requisition made by the City Architect. Under these circumstances, the allegations that the Corporation failed either to sanction or to refuse the plan submitted by the writ petitioners will not enable them to treat the plan as deemed sanction under R.56.;