G.N.Ray, J. - (1.) In the instant Rule the petitioners challenge the legality and validity of the notice and/or letter dated 5/7-6-1976 and pray for writs directing the respondents namely the Corporation of Calcutta and its officers to forthwith issue in favour of the petitioner No. 1, a Co-operative Housing Society, sanction or permission to execute work in accordance with the plan submitted on June 26, 1974. The petitioners also pray for quashing and/or cancelling the impugned order of refusal of the plan for sanction dated June 26, 1974 as contained in the afore- said Memo of the Corporation of Calcutta dated 5/7th June, 1976 and also a notice under Section 41G of the Calcutta Municipal Act dated July 15, 1976. The petitioners also pray for other appropriate writs in the nature of prohibition and also suitable directions restraining the respondents from giving any effect or further effect to the said memo of refusal and the said notice under Section 416 of the Calcutta Muincipal Act.
(2.) The short fact concerning the instant Civil Rule is that the petitioner No. l is a Co-operative Society duly registered on 4th November, 1974 under the West Bengal Co-operative Society Registration Act, 1973 having its by-laws also registered under the said Act and the Rules framed thereunder The petitioners Nos. 2 to 37 are members of the said Co-operative Society and are citizens of India. Premises No. 9/3, Hungerford Street, Calcutta-17 originally belonged to Protap Singh, son of the late Maharaj Chandrachtir Singh and on or about 19th Dec. 1973 the said Protab Singh entered into an agreement for sale of the said premises in favour of one Sri Trilok Chand Hanchand Mehra and Bridhraj Bhandari for a consideration of Rs. 9,74,595/- and it was stipulated in the said agreement that the conveyance in respect of the said premises would be executed in favour of the said Trilok Chand Harichand or Bridhrai Bhandari or in the names of their nominees. By the said agreement a sum of Rs. 1,40,000/-was paid as earnest money to the said vendor Protap Singh. On July 18, 1974, a registered agreement was executed between the said Sri Protap Singh and Trilok Chand Mehra and Bridhrai Bhandari for sale of the said premises inter alia providing therein that the purchasers had requested the vendor to give possession of the premises so as to enable the purchaser to proceed with the application for sanction of a, building plan by the Corporation of Calcutta and possession had also been given by the said Protap Singh to the said Trilok Chand Mehra and Bridhraj Bhandari. It may be stated that the Co-operative Society in question was not registered at that time. According to the petitioners, it was further provided for in the said Deed of Agreement that Protap Singh had received from time to time a sum of Rs. 8,44,595/- towards the consideration money and the said Protap Singh would execute and register proper deed of conveyance in favour of the Society after its registration and upon the Society's making payment of a sum of Rs. 1,30,000/- being the balance amount of the consideration money. On 20th Ma Rule 1975, the said Pratap Singh and his wife Maharani Prativa Manjuri Devi and his son Rajeswari Singh executed a deed of conveyance in favour of the petitioner society namely Latika Co-operative Housing Society Ltd. In terms of the aforesaid agreement, after getting possession of the said premises on June 26, 1974 the Latika Housing Society submitted a plan for a multistoried residential building at premises No. 9/3 Hunger-ford Street and the plan was prepared with a view to accommodate all the members of the Society. The Corporation of Calcutta acknowledged the submission of the building plan' by granting a receipt. On 1st Aug. 1974, the Municipal Authority issued requisitions under Rule 54 of Schedule XVI of the Calcutta Municipal Act raising certain objections. The petitioners contend that without prejudice to their contention that the plan must be deemed to have been sanctioned under Rule 56, the petitioners replied to the said requisition by a letter dated 14th Aug, 1974 inter alia stating therein the reasons for non-compliance with the requisitions which, according to the petitioners, were not required to be complied with under the provisions of the Calcutta Municipal Act. The respondents after receipt of the said letter dated 14th Aug. 1974 did not ask for further information and the said respondents also did neither grant nor refuse permission within the time prescribed by the Rules under Schedule XVI of the Calcutta Municipal Act. The petitioners contend that as the Corporation did neither sanction nor refuse to sanction the building plan within the prescribed period, under Rule 56 of Schedule XVI of the said Act, the plan of the building must be deemed to have been sanctioned in favour of the petitioners. It appears that on 4th Aplirle 1975 the respondent No, 5 namely the District Building Surveyor, District No. III (P) of the Calcutta Corporation informed the petitioner No. 1 that as the building exceeded 120 ft. height and the same was objectionable under Rule 3 (1) of Schedule XVI' of the Calcutta Municipal Act, 1961, the plan would be placed before the Tall Buildings Committee and the resolution of the committee was to be complied with before the case would be dealt with for sanction. It was stated in the said letter that the requisition of 'C' form would also have to be complied with. The petitioners, however, contended that such requisition in 'C' form had already been complied with and intimation had already been given to that effect. The petitioners also contend that under the then existing provisions of Calcutta Municipal Act and the rules framed thereunder, consideration of the proposed plan by an alleged Tall Buildings Committee was unwarranted and the demand for such compliance of the resolution of the Tall Buildings Committee was also without any authority. Besides, the plan of the building must be deemed to have been sanctioned under the said Rule 56 of Schedule XVI of the Act and as such there was no scope for making further requisition by the Corporation of Calcutta. The petitioners also contend that the petitioners had informed the Corporation of Calcutta that the petitioners had made substantial investment for the purchase of the land and for other preliminary constructions necessary for erection of the proposed building and in such circumstances, the Corporation should consider the matter sympathetically. The petitioners further contend that the respondent No- 5 informed the petitioner No. 1 regarding certain objections made by the Tall Buildings Committee in respect of the said plan and the petitioner No. 1 wrote to the respondent No. 4 namely the City Architect, Corporation of Calcutta on 7th Feb. 1976 that the recommendation of the Tall Buildings Committee was not acceptable to the petitioners. According to the petitioners the plan submitted on 26th June, 1974 did not violate any building rules and the said plan must be deemed to have been sanctioned and the construction had also been commenced in accordance with the said building plan. The petitioners further contend that by letter dated 5/ 7th June, 1976 issued by the respondent No. 4 namely the City Architect, Corporation of Calcutta countersigned by the respondent Nos. 1 and 5 it was alleged that the plan submitted by the petitioners did not conform to the rules and the said application was rejected under Rule 54 (4) of the Schedule XVI of the Calcutta Municipal Act, 1951 for non-compliance with the requisition. It may be stated that the respondents contend that such requisitions were received by the Secretary of the Society on 27th Aug. 1976 but according to the petitioners neither the Society nor any Secretary of the Society had received such requi- sitions. The Corporation of Calcutta however, did not accept the contention of the petitioners that the building plan in question must be deemed to have been sanctioned under Rule 56 and as such the petitioners were at liberty to proceed with the constructions as per the building plan. On the contrary, on the 15th July, 1976 the Corporation of Calcutta issued a notice under Section 416 of the Act directing the owner or the persons carrying on the work of construction on the said premises No. 9/3, Hungerford Street to stop forthwith construction of the R. C. C. columns on the ground that the construction had been commenced and was being carried on without any sanction and in breach of the provisions of the Municipal Act. It was also contended in the said notice dated 15th July, 1976 that if the petitioners would fail to comply with the requisitions of the said notice, then the Commissioner of Corporation of Calcutta with the assistance of the police would stop the continuance of the illegal construction and the cost of such police watch would be realised from the petitioners. As aforesaid, the petitioners challenged the legality and validity of the said memorandum of the Corporation of Calcutta inter alia intimating that the application for sanction of the building plan was rejected under Rule 54 (4) and also directing the petitioners to forthwith stop construction at the said premises under Section 416 of the Act.
(3.) Mr. R. C. Deb being ably followed by Mr. N. C. Roy Chowdhury, the learned counsel for the petitioners, contended that admittedly the plan for the building in question was submitted before the Corporation of Calcutta on 26th June, 1974 and within 30 days from the date of receipt of the said plan along with an application for sanction of the plan, the Corporation of Calcutta did not take any step whatsoever in respect of the said application. The Corporation did neither formally approve the plan and accord its sanction nor did it reject the said application for sanction of the plan. Under such circumstances, Mr. Deb contended that in terms of Rule 56 of Schedule XVI of the Act, the petitioners are entitled to proceed on the footing that the plan must be deemed to have been sanctioned. Mr. Deb contended that if under the deeming provisions, the petitioners are entitled to proceed on the footing that there is a sanction to proceed with the execution of construction of the building in question, the Corporation of Calcutta is not authorised to reject the said plan and/or to stop the work of construction so long such construction work did not contravene any of the provisions of the Act or any rule or by-laws made thereunder. Mr. Deb contended that the authorities of the Corporation of Calcutta are proceeding on the footing that they had refused to sanction the plan submitted by the petitioners on 5/7th June, 1976 and as such the petitioners were not entitled to carry on any construction work whatsoever Mr. Deb contended that the Corporation of Calcutta and/or its officers were not entitled to stop the construction work altogether on such footing that there was no accord of sanction to execute work of construction and as such the work of construction is per se illegal and unauthorised. Under the deemed sanction the petitioners can proceed with the execution of work of construction but if in the process of such execution any of the provisions of the Act or the rules or bye-laws framed thereunder is contravened, the Corporation of Calcutta has certainly the power to stop such unauthorised construction. In the aforesaid circumstances, Mr. Deb contended that the said Memo dated 5/7th June, 1976 of the Corporation of Calcutta refusing to grant sanction of the plan submitted by the petitioners and further action in issuing direction under Section 416 of the Act to stop construction work was wholly illegal and without any authority whatsoever and the petitioners are entitled to the writs and/or orders or directions as prayed for in the instant Rule. To appreciate properly the contentions of the learned counsel of the petitioners it is necessary to refer to a few rules relating to an application for construction of masonry building by a person and accord of sanction on such application by the Corporation of Calcutta. Part VII of Schedule XVI of the Calcutta Municipal Act contains the rules relating to applications for permission to erect new buildings other than huts. The relevant rules are set out hereunder:-- "Rule 50. (1) Every person who intends to erect a new building (other than a hut) shall send to the Commissioner an application for permission to execute the work, together with a site-plan of the land, a plan of the whole building, separate plans of each floor of the building, complete elevations and sections of the work and a specification of the work. (2) Every document referred to in sub-rule (1) shall contain the particulars and be prepared in the manner hereinafter in this part prescribed in this behalf. 51. (1) Every application made under Rule 50 shall be written on a printed form (to be supplied by the Commissioner free of charge), and shall state the position of the site, the number assigned to it in the assessment book and its dimensions, the description of the building and its dimensions, and such other particulars as may be prescribed by the Commissioner (2) The site-plan sent with such an application shall be drawn to a scale of not less than one-fiftieth of an inch to the foot, shall be sent in triplicate, and shall show- Clause (a) to (1)- [Not quoted. The said clauses provide for various particulars in the site plan to be annexed to the petition.] (3) and (4) .................. 52. ............... 53. (1) Every person who intends to erect a new building or add to any building, shall if such erection or addition costs more than twenty-five thousand rupees, employ a licensed building surveyor to supervise the erection of such building or addition. (2) The name of the person to be so employed shall be stated in the application under Rule 50, in respect of such building. (3) If the person so employed dies or ceases to be so employed before the completion of the said building, the name of the licensed building surveyor employed in place of such person to supervise the erection of such building, shall be forthwith reported to the Commissioner. 54. (1) Ail information and documents which it may be found necessary to require, and all objections which it may be found necessary to make before deciding whether permission to erect a new building (other than a hut) should be given, shall be respectively required and made in one requisition, and the applicant shall be appraised thereof at the earliest possible date. (2) to (4) ............... 55. (1) Within one month after the receipt of any application made under Rule 50 for permission to execute any work, or of any information or documents or further information or documents requir- ed under this schedule, or within one month after the Commissioner has been satisfied that there are no objections which may lawfully be taken to the grant of permission to execute the work, the Commissioner shall, by written order, either- (a) grant permission conditionally or unconditionally to execute the work, or (b) refuse, on one or more of the grounds mentioned in Rule 57 or Rule 61, as the case may be, to grant such permission. (2) When the Commissioner grants permission conditionally under clause (a) of Sub-rule (1), he may, in regard thereto, impose such conditions, consistent with this Act, as he may think fit. (3) and (4) ............... 56. If within the period prescribed by Rule 55, the Commissioner has neither granted nor refused to grant permission to execute any work, such permission shall be deemed to have been granted; and the applicant may proceed to execute the work, but not so as to contravene any of the provisions of this Act or of any rules or bye-laws made thereunder. 57. The only grounds on which permission to erect a new building (other than a hut) may be refused are the following, namely:-- (1) that the work, or any of the particulars comprised in the site-plan, building plans, elevations, sections or specifications would contravene some specific provision of this Act or some specific order, rule or bye-laws made thereunder; (2) that the application for such permission does not contain the particulars or is not prepared in the manner prescribed in this schedule; (3) that, in the case of a new building (other than a hut) falling within the street alignment or building-line of a public street projected under Section 63 of the Calcutta Improvement Act, 1911, the permission of the Chairman of the Board of Trustees for the Improvement of Calcutta has not been obtained; (4) that any of documents referred to in Rule 50 have not been signed as prescribed in Rule 52; (5) that any information or documents required by the Commissioner under this schedule have not been duly furnished; or (6) that the applicant has not satisfied the Commissioner in regard to any objections which may have been taken under these rules to the grant of the said permission. 60. Subject to the provisions of Rule 56, the erection of a new building (other than a hut:) shall not be commenced unless and until the Commissioner has granted permission for the execution of the work on an application sent to him under Rule 50. 63. If, at any lime after permission to erect any masonry building has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the application made under Rule 50, or in the plans, elevations, sections, or specifications submitted therewith in respect of such building, he may cancel such permission and any work done thereunder shall be deemed to have been done without permission: Provided that, if such permission was granted with the approval of the Standing Committee, the Commissioner shall not cancel it except with the approval of the Standing Committee.;