TMI Blog2003 (12) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Rules 1991 framed under the provisions of Howrah Municipal Corporation Act 1980 (for short the Act ) have been amended and the resolution of the Corporation issued thereunder prohibit multi-storeyed construction above one plus two floors on G.T. Road, Howrah. The Division Bench of the High Court by the impugned judgment by taking a contrary view has held that sanction for construction of the multi-storeyed complex of respondent - company up to fourth floor having been granted by orders of the High Court in the earlier Writ Petition with liberty reserved in favour of the company to seek sanction up to 7th floor, it was not open to the Corporation to refuse sanction only because after expiry of the stipulated period of sixty days provided in the rules for grant of sanction or refusal and expiry of the extended period granted by the High Court, Building Rules have been amended prohibiting construction of multi-storeyed buildings above third floor on the G.T. Road, Howrah. Only few relevant dates and facts are necessary for deciding the controversial issue regarding sanction of additional three floors to the multi-storied complex. The respondent-company first applied for sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the above order in which liberty was given to the present respondent company to apply for further sanction to construct beyond 4th floor up to 7th floor, further sanction was sought by letter dated 27th May, 1994, addressed to the Corporation with separate building plans for three additional floors. Since the Corporation did not accept the application and communicated no order of sanction, the respondent-company again approached the High Court. Learned Single Judge of the High Court in his order dated 24.6.1994, by referring and reproducing the earlier order of the High Court dated 23.12.1993, held that as the right to the company was reserved to apply for sanction for further floors, the Corporation was bound to accept the construction plan. The learned Judge directed that on the application with plan submitted for construction of three additional floors, the Corporation should pass appropriate orders within four weeks from the date of submission of the plan and receipt of copy of the order. Armed with the above order, the company again approached the Corporation by letter dated 28.6.1994 to grant sanction of construction of three additional floors. The Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such ward or part thereof will put additional burden on the existing civic services, he may sanction erection of such building or execution of such work subject to such restrictions of height and F.A.R. or conditions including uses as he may deem fit to impose, provided that no such action shall be taken by the Commissioner without the prior approval of the Mayor-in-Council. In exercise of powers under sub-rule (3) of Rule (20) (as amended with effect from 15.7.1994) with due approval of Mayor-in- Council, the Commissioner of the Corporation imposed a restriction on construction of buildings exceeding ten metres in height in the prescribed wards and streets which include GT Road on which the respondent seeks sanction for construction of additional three floors. The relevant resolution of the Corporation dated 02.9.1994 in its relevant parts reads thus : Having regard to 1. The existing water supply, sewerage and drainage system in any Ward or part thereof, or 2. The traffic carrying capacity of a street in any ward or part thereof, or 3. The density of population of that area or 4. The commercial activity of that area or 5. The conditions of the existing bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Court directing sanction within a specified period, no vested right was created in favour of the company to seek sanction for construction of additional three floors. The Division Bench was clearly in error in coming to the conclusion that the unamended rules and regulations in force on the date of submission of the application seeking sanction for further construction, would govern the matter of sanction and the subsequent amendment to the Building Rules cannot take away the alleged vested right for seeking sanction by the company. Learned counsel argued that a claim for such vested right for sanction for construction was negatived in comparable circumstances in two decisions of this Court viz. Usman Gani J.Khatri of Bombay vs. Cantonment Board [1992 (3) SCC 455] and State of West Bengal vs. Terra Firma investment Trading Pvt. Ltd. [1995 (1) SCC 125]. On the other side learned counsel appearing for the respondent- company took this Court through the various orders made by the High Court from time to time in successive Writ Petitions filed by the company. The provisions of the Act and the Building Rules were read to contend that the Division Bench was fully justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im raised on behalf of the company that the order of Court fixing a time limit for the Corporation to decide its application for sanction creates a vested right, it would be necessary to examine the relevant provisions of the Act, Rules and the Regulations. Chapter XII of the Act contains provisions regulating sanction for construction or erection of buildings in the area within the limits of the Corporation. Section 173 states : No person shall use any piece of land as a site for erection of a new building except in accordance with the provisions of this Act and the regulations made under this Act in relation to such erection of building. Section 174 requires : Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information or document as may be prescribed. Section 175 reads:- Section 175. The Commissioner shall sanction the erection of building ordinarily within a period of sixty days unless any further information or document be called for or sanction be refused in the meantime on such grounds as may be prescribed. [Emphasis added] What is to be noted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passing of orders for more than sixty days the statute merely prescribes a standard of time within which it expects the Standing Committee to dispose of the matter. It is a standard which the statute considers to be reasonable. But non- compliance does not result in a deemed sanction to the lay-out plan. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions. The question then is whether such a vested right can be deemed to have been created by the fixation of time limit by the Court in its order for considering the application for sanction. In the order dated 23.12.1993 sanction was granted for construction up to 4th floor level and for further construction it was observed thus: This order will not prevent the petitioners from applying for further sanction if the same at all permissible at a later date. After the above order, the company applied for sanction of additional t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent - company to the High Court, by order dated 24.6.1994, learned Single Judge merely 'expected' the Corporation to pass the appropriate orders on the pending application for sanction of additional floors to the company within a period of four weeks. The relevant part of the order states :- it is expected that the Howrah Municipal Corporation shall pass appropriate orders within four weeks from the date of submission of the Plan and receipt of copy of the order. According to the company, on the expiry of period of four weeks fixed by order dated 24.6.1994, there was no justification for the Corporation to keep the application for sanction pending and to allow it to be rendered infructuous as a result of the amendment to the Building Rules which came into force by Gazette Notification on 15.7.1994. On behalf of the Corporation it is denied that despite the order of the court granting four weeks, the application for sanction was deliberately not considered by the Corporation. It is submitted that there was no time-bound mandate by the court to the Corporation. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [1995 (1) SCC 125]. That case arose as a result of amendment introduced in the Act in the year 1990 restricting building heights within limits of Calcutta Municipal Corporation to 13.5 metres. Applications for sanction pending for construction with height above 13.5 metres were rejected because of the above restriction. In that case also the applicants claimed a vested right to get their plans passed and sanctioned as they were submitted prior to the amendment made to Calcutta Municipal Corporation Act in 1990. This Court on examining the object in restricting height of buildings in the city of Calcutta due to limited resources for civic amenities upheld the Amendment Act and negatived the claim of vested right set up by the applicants on the basis of unamended provisions and building regulations. Relying on the decision of Usman Gani J.Khatri (supra), this Court observed :- How can the respondent claim an absolute or vested right to get his plan passed by Writ of a Court merely on the ground that such plan had been submitted by him prior to 18.12.1989? By mere submission of a plan for construction of a building which has not been passed by the competent authority no right a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictions on the height of buildings, on specified wards, roads and localities. It is to be noted from the relevant resolution of the Corporation that restrictions with regard to the height of buildings are not imposed only on GT Road but there are several specified wards and areas in which such restrictions are applied. This Court cannot accept that such a legislative change and consequent resolution came to be passed and got approved only to frustrate the pending application of the company. We have examined the provisions of section 175 of the Act fixing 'ordinarily' period of 'sixty days' for granting or refusing sanction. We have also examined Rule 13 of the Building Rules which also prescribes a period of 'sixty days' from the date of application for grant or refusal of sanction for construction. Neither the provisions of the Act nor the Rules, however, provide for 'deemed sanction' or 'deemed refusal' on the expiry of sixty days' period. Therefore, without express sanction, no construction is permissible contrary to the provisions in Chapter XII of the Act and Rule 3 of the Building Rules which prohibit 'construction or erectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d expectation' has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a 'settled expectation' or so-called 'vested right' cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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