Case: Howrah Municipal Corpn  Vs. Ganges Rope Co Ltd

The respondent-company first applied for sanction for construction of its complex up to seven floors on 6.7.1992. Since the sanction was not granted within the prescribed period of sixty days in accordance with the Building Rules, it approached the High Court in Writ Petition. The learned Single Judge made the following directions in his order passed ondispose of this application with a direction upon the Howrah Municipal Corporation authorities to consider and dispose of the petitioners application for grant of sanction of the building plan submitted by them on 6th July, 1992, within a period of four weeks from date in accordance with the provisions of Howrah Municipal Corporation and the Building Rules.In default, the parties are at liberty to mention the matter.The period granted to the Corporation to decide the application for sanction was extended by a further period of three weeks by learned Judge on 28.5.1993. Since the Corporation did not either grant or refuse the sanction even within the extended time, the respondent approached the High Court again on 23.12.1993. The Court passed the following orderappears that sanction of building Plan within Howrah Municipal area is permissible up to ground plan 4th floor level and as contended on behalf of the petitioners even up to 7th floor level.This submission made on behalf of the appellants is not disputed on behalf of the Howrah Municipal Corporation.Having regard to the above, I dispose of the application by directing the Howrah Municipal Corporation to grant sanction to the petitioners Plan submitted on 6th July 1992 up to the 4th floor level, if all the requirements are duly complied with by the writ petitioners. Such sanction must be given by the Howrah Municipal Corporation within one month from the date of communication of this order. The Howrah Municipal Corporation is directed to notify the petitioners the necessary sanctioning copies and the same is to be deposited by the petitioners upon being so notified.This order will not prevent the petitioners from applying for further sanction if the same at all permissible at a later date. The application is thus disposedto add emphasis]6. It is not in dispute that after the order dated 23.12.1993 on grant of sanction by the Corporation, construction in the Building Complex up to 4th level has been completed. On the 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.7. 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.8. 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 wrote back on 28.7.1994 demanding from the company submission of fresh plans. Second letter dated 19.9.1994 was also addressed by the Corporation to the Company requiring submission of requisite number of prints of proposal, tax clearance certificate, previous sanctioned plan, indemnity bond for deep foundation work, proposal plans approved by Fire Service Authority and other documents showing permission for change of user. The company along with the letter dated 10.8.1994 complied with the directions and submitted the required papers and documents.9. When the application for sanction for construction of additional three floors, filed by respondent company was pending for sanction with the Corporation, the Government of West Bengal by Notification published in the Calcutta Gazette (Extraordinary) dated 15.7.1994, in exercise of powers under section 215 of the Act amended the Building Rules restricting height of high rising buildings to the prescribed level depending upon the width of the street on which the building is proposed to be constructed. This restriction on the height of the building proportionate to the width of the street was prescribed in table under sub-rule (1) Rule 20. For streets including G.T. Road with width up to 18-20 metres, the permissible height of buildings prescribed is 36 metres. The permissible construction, therefore, for G.T. Highways could be up to 36 metres i.e. about 11 to 12 floors. Under amended sub-rule (3) of Rule 20, however, the Commissioner, with approval of Mayor-in-Council, was granted power to restrict the height of high rising buildings in specified areas and wards keeping in view the limited civic amenities. Subrule (3) of Rule 20, as amended by Notification dated 15.7.1994, needs to be reproduced as Corporation has placed heavy reliance on the same to justify refusal ofanything contained in sub-rules (1) and (2), if the Commissioner, having regard to (a) the existing water supply, sewerage and drainage system in any ward or part thereof, or (b) the traffic carrying capacity of a street in any ward or part thereof, or (c) the density of population of that area, or (d) the commercial activity of that area, or (e) the conditions of the existing building, is of the opinion that the erection of any building exceeding 10 metres in height or execution of any work in 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 thusregard to -1. The existing water supply, sewerage and drainage system in any Ward or part thereof, or2. The traffic carrying capacity of a street in any ward or part thereof, or3. The density of population of that area or4. The commercial activity of that area or5. The conditions of the existing building, it is unanimously felt that erection of any building exceeding 10 mts in height in the following Ward/Street will put additional burden to existing civic services and therefore following decision is taken in terms of Rule 20(3) of amended H.M.C. Building Rules :-a) The height of the building is to be restricted within 10 metres in the Ward Nos. 12 to 16, 29 to 31 and 33 to 40.b) In case of G.T. Road facing South to North of any order Wards other than above in item (1) restriction of new building proposals upto 10 metre of height to be imposed upon the holdings which fall within 50 metres to both sides of the road. But in practising so, when a holding is affected partly, in that case the entire holding should be considered as affected holding.c) In cases of holdings with reference to Kona Express Highway & 100 HIT Road from Beliapole to Natabar Paul Road crossing they should also be dealt with as per Item (2) above.DecisionThe above mentioned orders of Mayor dated 10.7.94 in regard to amendments of H.M.C. Building Rules, 1991 permissible height of Building, Floor Area Ratio & conditions including uses is confirmed.Certified to be true copy of the origin. Sd/- Secretary, Howrah Municipalfor pointed attention]11. On the basis of the amended Rule 20 which came into force with effect from 15.7.1994 and the consequential resolution dated 18.7.1994 of the Corporation which was taken with the approval of Mayor-in-Council, the Corporation by letter dated 16.9.1994 informed the respondent company that in view of the restrictions imposed on the height of buildings on GT Road, the sanction sought by them for additional three floors cannot be granted. The proposal for further construction, therefore was "treated as cancelled."

Reasoning:
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.