Case: Howrah Municipal Corpn  Vs. Ganges Rope Co Ltd

none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant 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 applicants whose applications are pending without any intervention or order of the court. 37. The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word vest is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word vest has also acquired a meaning as "an absolute or indefeasible right" [See K.J. Aiyers Judicial Dictionary (A complete Law Lexicon), Thirteenth Edition]. The context in which respondent - company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent-company is that on the basis of Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is that the respondent-company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfillment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled 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. 38. 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 resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]28. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994 , from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application.This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, Building Rules, on the date of sanction, have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying.We do not find that there was any deliberate delay on the part of the Corporation. We have found that the stand of the Corporation, on the basis of Building Rules, cannot be held to be erroneous that for seeking three additional floors, the company was required to file fresh application for sanction with necessary particulars, documents, plans and enclosures. The company complied with the necessary requirements but thereafter, the Building Rules were amended and restrictions have been imposed on height of buildings on the GT Road. It cannot, therefore, be held that the action of the Corporation is malicious. The Building Rules were amended by the State and the Corporation can have no bona fide or mala fide hand in it. After the amended Building Rules were notified, the Corporation on relevant ground of limited resources for civic amenities in a congested city like Howrah, with the approval of Mayor-in-Council, could legally impose legitimate restrictions 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.35. 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 erection of new building or addition or alteration to any existing building without obtaining sanction foris undeniable that after the amendment of the Building Rules and the Resolution passed by the Corporation thereunder restrictions imposed on heights of buildings on specified wards, roads and localities would apply to all pending applications for sanction. The question is whether any exception can be made to the case of the applicant seeking sanction who had approached the court and obtained consideration of its applications for sanction within a specified period. We have extracted above, the various orders passed by the High Court in writ petitions successively filed by the company in an effort to obtain early sanction for its additional construction of three floors on the buildings in its multi-storeyed complex already completed up to 4th floor. In none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant 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 applicants whose applications are pending without any intervention or order of the court.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 resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation.