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1987 (7) TMI 589

tta. They submitted a plan to the respondent No.1, Calcutta Municipal Corporation, for construction of a small one storied house for their own residential purposes. 2. The petitioners claim to have complied with all the formalities as required under the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) and the rules and bye-laws framed. thereunder and furnished all information which were prescribed under the said Act or the said Rules and bye-laws. The respondent Authorities, however, have failed and neglected to sanction the said building plan even after the lapse of two months. 3. By a letter, dated 17th February 1987 the Municipal Authorities informed the petitioners that the plans and application submitted under Sections 393 and 394 thereof of the said Act and Rules. 47 to 50 thereunder might. be accepted conditional upon further scrutiny and subject to their fulfilling certain conditions. One of the conditions was compliance with the provisions of Urban Land Ceiling Act. Apart from the said condition, the petitioners complied with all other conditions as stated in the said letter, dated 17th February 1987. 4. In this application the petitioners .....

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ke addition or alteration to any building shall send to the Commissioner and application for permission to execute the work with the site plan of the site, a plan of the whole building, separate plans for such floor of the building complete elevations and sanction of the work, services plans, a specification of the work and such other particulars as may be prescribed by the corporation in this behalf from time to time. 8. Rule 48 of Schedule XVI provides that every application made under Rule 47 shall be written in printed form to be supplied by the Corporation and shall state the position of the site, the No. assigned to it in the assessment Book and its dimensions and such other particulars as may be prescribed by the Corporation. 9. Rule 51 Schedule XVI provides that : 1. All information and documents which it may be found necessary to require and all objection which it may be found necessary to make before deciding whether permission to erect a building (other than a hut) should be given, shall be respectively required and made in one requisition and the applicant shall be apprised thereof at the time of earliest possible date. 2. Within fifteen working days after the receipt o .....

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petitioners are required to submit the application for building sanction in prescribed form and they are bound to furnish such other particulars and documents as may be prescribed by the Corporation. In the present case certain certificates including the certificate from the Competent Authority under the Land Ceiling Act, 1976 as specified in the said application form are required particularly because the fact that the proposed for construction of the building has been made on the plot of land measuring about 12 cottahs which is admittedly in excess of the ceiling limit as provided under Urban Land (Ceiling and Regulation) Act, 1976. On inspection it was round that the small structure standing there upon had already been demolished. In view of the above position of law, it cannot be contended that the Authorities of the Corporation cannot require for no objection certificate from the Competent Authority under the said Act, 1976. As a matter of fact in this particular case it has been prescribed that the said certificate is necessary and in that view of the matter the petitioners are required to furnish the document when required. That apart the petitioners failed to comply with the .....

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n by the respondents that in contravention of Section 393(2) (b) the notice for sanction did not contain the particulars or has not been prepared in the manner required under the Rules and Regulations made on this behalf. Since the clearance certificate under the Urban Land Ceiling Act is neither an information nor a document which could be required by the Municipal Commissioner under the said Act or Rules and Regulations made thereunder, it cannot be contended that there has been contravention of Section 396(2) (c) by reason of non-furnishing of the said certificate admittedly, sub-clauses (d), (e) and (f) of Sec. 396 (2) have not been infringed, and hence the sanction of the building plan submitted by the petitioners could not be withheld on such grounds. 16. Schedule XVI of the Act contains Rules as to the use of a building site and execution of building work thereon. Rule 47(1) stipulates that no person shall erect a new building without first obtaining a written permission from the Commissioner under Rule 55. Rule 47(2) lays down that every person intending to erect a new building wall send to the Commissioner an application for permission to the work together with the site pl .....

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ring the Particular regarding no objection from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 supported by the document. This action of the Authority concerned is absolutely within his competence and jurisdiction under the law. Reliance has been placed on a decision in the case of (1) Dinesh Ch. Banerjee & Ors. vs. Corporation of Calcutta & Ors. reported in AIR. 1976 Cal. 44. He further submitted that the application as submitted by the petitioners was not a proper and valid application as the same did not certain relevant particulars with supporting documents as indicated hereinbefore but the Corporation instead of rejecting the said application in limine accepted the same conditionally and asked the petitioners to furnish other relevant particulars. 20. I am, however, unable to accept the contention of Mr. Ghosh. Section 29 of the Urban Land (Ceiling & Regulation) Act, 1976 provides that no person shall construct a building with dwelling units having plinth area. (a) Whether the building proposed to be constructed is situated in an urban agglomeration falling within category A or category B specified in Schedule I, in excess of three .....

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under such Act to ensure that no construction is made without complying with the provisions of that Act. But this cannot be a ground of refusing sanction because the sanction has to be made by the Calcutta Municipal Corporation on the basis of the particulars furnished as required under the Calcutta Municipal Corporation Act and the Rules and regulations framed thereunder. Calcutta Municipal Corporation in this process cannot enforce the provision of another Act and they are not the Competent Authority to do so. In my view the direction of the Municipal Corporation asking the petitioners to furnish no objection certificate from the Competent Authority is without jurisdiction. 22. Reliance has been placed in the case of Municipal Board v. Mohd Jaki & Ors, reported in AIR 1945 All 393 where it & has been held that when an application for sanction is made, it is a duty of the Municipal Authority to see whether the proposed construction in any way contravene the building bye-laws. If they do not, it is the duty of the authorities to grant the sanction. 23. The subsequent decision in the case of Mahadeo Prasad & Ors. v. The Government, United Provinces reported in AIR 1949 .....

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is the Corporation did not accord sanction, but insisted on obtaining "No Objection" certificate from the District Collector with respect to his title. The Corporation insisted on production of the certificate in pursuance of a Circular issued by it on the strength of a letter of the District Collector. On a writ application of the petitioner for direction against the Corporation restraining it from insisting upon production of such a certificate, the Court held that though the Authority competent to sanction layout has the power to make enquiry and for that purpose call for further information, this power must be read in the context of the Layout Rules as also Zoning Regulation, otherwise the permission asked for should be granted. The Court held that the Circular was ultra vires the powers of the Corporation, since it was not within the four corners of Hyderabad Municipal Corporation Act and any other statutory provisions governing it. The Corporation, it was held, could not have acted beyond the said Act and other statutory provisions governing the Corporation, and therefore the said Circular is neither justified nor warranted. Accordingly, the said Circular was quashe .....

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ed Building Surveyors. In the schedule to the said application form there are certain particulars which are required to be given and these particulars are required to be signed both by the owners and licenced building Surveyors. The Court held as follows : It was contended on behalf of the applicants that the particulars which were required to be furnished by the annexure to the application for sanction were really imposition of duties upon the licensed building surveyors and not merely specification of more particulars required to be given to the plan or to the application. It was, therefore, submitted that the Corporation of Calcutta has no right or authority or power under Sections 378 to 380 of the Calcutta Municipal Act, 1951, as well as Rules 50 and 51 of Schedule XVI to impose additional duties on the buildings surveyors without rules being framed under Section 532 of the Act. It was submitted that Section 380 made at clear that plans were different from the application forms. Reading the provisions of Sections 378 to 380 together, it appears to me that the Corporation has the power to specify the particulars as indicated to be filled in the application for sanction of a bui .....

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