Satya Brata Sinha, J.@mdashThis appeal is directed against the judgment and order dated 11th July, 2000 passed by a learned Single Judge of this court in W.P. No. 15588(W) of 1999 whereby and whereunder the writ application filed by the appellant herein was disposed of directing:
I therefore dispose of this writ application along with the aforesaid application by directing the said Executive Engineer (Borough 3) to decide the matter on the basis of the complaint filed by the writ petitioners as annexed to this writ petition dated 3rd July, 99, in the light of the inspection if any held by him pursuant to the order of this Court by giving a reasonable opportunity of hearing both to the writ petitioner and the aforesaid private respondent and by passing a reasoned order expeditiously and preferably within a period of 2 months from the date of communication of the order.
It is made clear that the respondent Calcutta Municipal Corporation upon determination of the dispute as above will take all possible steps as per the provisions of law, if there be any unauthorised construction and/or a construction in deviation of a sanction building of the aforesaid premises.
The writ petitioner is the appellant. As regards purported sanction of the building plan granted in favour of the respondent Nos. 8-10, the writ application was filed claiming, inter alia, the following reliefs:
a) A writ of or in the nature of Mandamus directing the statutory respondents, their men, agents or assigns to immediately send a notice to stop work u/s 401 of the Calcutta Municipal Corporation Act, 1980 on the basis of the complaint lodged with the statutory authorities by the petitioners as in annexure ''A'' to the writ petition.
b) A writ of or in the nature of Mandamus directing the statutory respondents their men, agents or assigns to investigate and/ or inspect the site where the reported illegal construction is being carried on by the private respondents and thereafter take immediate steps to demolish such illegal construction in accordance with law.
c) A writ of or in the nature of Prohibition to prohibit the statutory respondents, their men, agents and assigns not to allow the private respondents to continue with construction as per the purported permission to reconstruct dated 4.12.1998;
d) A writ of or in the nature of Certiorari directing the respondents their men, agents, and assigns to remit the records of the case including the purported permission to re-construct dated 4.12.1998 granted in favour of the respondents No. 8, 9 and 10 before this Hon''ble Court so that conscionable justice may be done by quashing the same.
2. The said writ application was filed, inter alia, stating that the said respondents had been carrying on construction of the first floor in utter violation of the Municipal Laws and Rules, whereafter the matter was reported to the respondent Nos. 3 and 4 by letters dated 7th July, 1999 and 6th July, 1999 but again it was noticed that the construction has been going on.
3. The complaint made by the petitioner to the Calcutta Municipal Corporation including the Commissioner thereof went unheeded. An interim order of injunction was passed by the learned trial Judge. An application for modification has been filed by the private respondent herein. The private respondent also filed affidavit-in-opposition wherewith a copy of the sanctioned building plan purported to have been sanctioned by the Calcutta Municipal Corporation has been annexed. The order of sanction reads thus:
Reconstruction of roof is permitted under Rule 3(2)(b) of the Building Bye Law read with Section 527 of the C.M.C. Act, 80 in pursuance with the order of the Ch. M.E. (B) dated 30.11.98 & M.M.L.C. (B) dated 4.12.98 regarding premises No. 123, Raja Rajendralal Mitra Road.
4. From a bare perusal of the affidavit-in-opposition filed by the private respondent it appears that a building plan has been submitted for reconstruction and/or addition or alteration to the existing construction and pursuant to or in furtherance of such sanctioned plan admittedly the old existing construction has been removed and a new construction has been raised upon leaving 2.5 feet vacant space on the eastern boundary line of the premises in question.
5. Therefore, it has not only been admitted that the purpose for the filing of the application for grant of sanction of a building plan was not for the purpose of Rule 3(2)(k) of the Building rules read with Section 527 of the Calcutta Municipal Corporation Act but for the purpose of erection or re-erection of the building which comes within the purview of Sections 390 of the Calcutta Municipal Corporation Act. The said respondent further stated:
h) I further state that certain relaxation of Rule 56 regarding leaving back space was given by the M.I.C. on 4th December, 1998 and C.M.C.E. on 30th November, 1998 in view of the fact that the original construction stood on the building line of the said premises without leaving any vacant space on the eastern part thereof. I further state that since the proposed building cannot be conveniently used in the event the back space is to be left open as per Rule 56 of the Building Rule, the M.I.C. and C.M.E. granted such relaxation.
i) I further state that the existing construction on the first floor comprising of bath, privy and kitchen which was demolished by me prior to raising the impugned construction stood on the boundary line of the eastern part of the said premises. As such the question of any further obstruction of passage of air and light in the petitioners'' premises does not arise at all particularly when I am now raising construction by leaving 2.5 feet on the eastern part of my said premises.
6. Mr. Sircar, learned counsel, appearing on behalf of the appellant has raised several contention in support of this appeal. The learned counsel firstly submitted that a bare perusal of the order under appeal would reveal that the entire writ application was sought to be disposed of despite the fact that the date was fixed only for passing of the order on the application for modification of the interim order filed by the private respondent herein. In any event, Mr. Sircar, learned counsel, contends that prior to disposal of the writ application even the records of the case were not directed to be produced by the learned counsel for the Municipal Corporation although his presence has been noted despite the fact that he did not appear.
7. Mr. Sircar, learned counsel, would urge that there had been no provision of relaxation as purported to have been alleged by the private respondent.
8. Mr. Bihani, learned counsel appearing on behalf of the C.M.C. however has produced the records and inter alia submitted that the permission in terms of Rule 3(2) of the Building Rules read with Section 527 of the Calcutta Municipal Corporation Act had been granted having regard to the clause (k) of Sub-rule (2) of Rule 3 of the Building Rules. The learned counsel contends that the Commissioner of the Calcutta Municipal Corporation in exercise of his power conferred u/s 48(3)(b) of the C.M.C. Act has delegated his power in favour of the City Architect/Deputy City Architect and in that view of the matter, order sanctioning of the building plan in terms of the aforementioned provision was issued having regard to the fact that earlier no space was available, the same had been made a condition for grant of such permission, no illegality has been committed.
9. Mr. Bhattacharjee, learned counsel appearing on behalf of the private respondent on the other hand submits that his client had filed an application in a prescribed form and upon following the procedure laid down under the Calcutta Municipal Corporation Act and the Rules framed thereunder. The learned counsel contends that in the instant case, Rule 3(2) of the Building Rules or Section 527 of the C.M.C. Act will have no application but according to the learned counsel, having regarded to the fact that the authority of the Calcutta Municipal Corporation had applied wrong provision of law, the same by itself would not take away the validity or otherwise of the order of sanction granted in his client''s favour which had been acted upon by all concerned. The learned council in support of the aforementioned contention has relied upon a decision of a Division Bench of this court in the case of M/s. Jaybee Mercantile Ltd. & Ors. vs. Major-in-Council, Calcutta Municipal Corporation & Ors., reported in 2000 (1) CLT 46. According to the learned counsel, his client had not only demolished the part of the ground floor but also demolished the structure which is being used for bath, privy and kitchen so as to enable him to construct the first floor. According to the learned counsel, this court should not exercise its discretion in favour of the writ petitioner.
10. There cannot be any doubt whatsoever that a neighbour has a right to object to the sanction of a building plan if such sanction has not been granted in terms of the provisions of the CMC Act and the Building Rules framed thereunder. The said Act is regulatory in nature. The authorities who have been authorised to consider the matter relating to grant of sanction of a building plan are required to apply their minds regards compliance of the relevant provisions of the Building Rules, plan can be sanctioned only in terms of the said Rules unless there exists a provision for relaxation. Such order of relaxation can also be passed by an appropriate authority on a reasonable ground.
11. From the endorsement made on the building plan filed on behalf of the private respondent it appears that the Chief Municipal Engineer (Building) had passed an order on 30.11.98 and the Member Mayor-in-Council (Building) had passed an order on 4.12.98. Such sanction was in relation to the construction of a roof and not for anything else. It may be true as has been submitted by Mr. Bhattacharjee, learned counsel, that the client has complied with the provisions of the Building Rules, inasmuch as, an application for sanction of the building plan was filed in terms of the procedure laid down therefor. The private respondent''s statements in their affidavit-in-opposition categorically go to show the total non-application of mind on the part of the said authority. Rule 3(2). of the Building Rules provides that no sanction shall be required in relation to the matter enumerated therein. Rule 3(2)(k) of the Rules provides; "carrying out such other work as is necessary in the opinion of the Municipal Commissioner, for reasons to be recorded in writing, to maintain the building in a condition of good repair or to secure it to prevent danger to human life.
12. Such an opinion on the part of the Commissioner of Corporation or his delegate must be formed on the basis of the existing materials.
Evidently the application for grant of sanction of the building plan was not filed either for the purpose of invoking Rule 3(2)(k) of the Building Rules or Section 527 of the Calcutta Municipal Corporation Act. The record suggests that such permission has been granted only having regard to the fact that the old structure which had been constructed long back did not provide for any open space but on the basis of such application, the private respondents have been directed to keep 2.5 feet open space on the back side of the existing structure. The same, in our considered opinion, was not relevant as the petitioner admittedly had applied for re-erection of the building which would attract the following provisions.
Section 390 (1) (b)
(b) to re-erect-
(i) any building of which more than one half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed, or
(ii) any building of which more than one half of the superficial area of the external walls above the levels of plinth has been pulled down, or
(iii) any frame-building of which more than half of the number of posts or beams in the external walls have been pulled down;
(c) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally constructed for human habitation, subsequently appropriated for any other purposes;
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only;
(e) to convert into a place of religious worship or a sacred building any place or building not originally constructed for such purpose;
(f) top roof or cover an open space between walls or building to the extent of the structure formed by the roofing, or covering of such space;
(g) to convert two or more tenement in a building into a greater or lessor number of such tenement;
(h) to convert into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such, or to convert any building constructed for such purpose, by subdivision or addition, in greater or lessor number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages;
(i) to convert a building, which when originally constructed was legally exempt from the operation of any building regulations, contained in this Act, or under any rules or regulations made under this Act, or contained in any other law in force for the time being, into a building which, had it been originally erected in its converted form, would have been subject to such building regulations;
(j) to convert into or use as a dwelling house any building which has been discontinued as or appropriated any purpose other than a dwelling house;
(k) to make any addition to a building;
(l) to close permanently any door or window in any external wall;
(m) to remove or reconstruct the principal staircase or to alter its position;
Section 394. Application for addition to or repairs of buildings.
(1) Every person who intends to execute any of the works specified in clause (b) to clause (m) of Sub-section (1) of Section 390 shall apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed.
(2) Every such notice shall be accompanied by such documents and plans as may be prescribed.
13. Mr. Bihani, learned counsel, when questioned, submitted that the building plan for the purpose of erection or re-erection thereof and addition or alteration to the existing structure is required to be sanctioned by the Deputy Chief Engineer (Building), North, which post has been redesigned instead and place of City Architect (B), (North).
14. Mr. Sircar, learned counsel however has denied and disputed the situation but having regard to the fact that some statutory authority is empowered to pass an appropriate order as regard grant of sanction of the building plan, we leave the matter upon such authority.
15. There cannot be any doubt that when there has been substantial compliance of the provision of law, non-mentioning or wrong mentioning of the source of power may not invalidate the order. In the case of Jaybee Mercantile vs. Calcutta Municipal Corporation, reported in 2000 (1) CLT 46. a Division Bench of this court has noticed:
28. It is now a well settled principle of law that what matters is the substance and not the form. If the requirements of law have substantially been complied with only because the same shall not vitiate the order itself. Wrong mentioning or non-mentioning of a provision as to well known does not vitiate the order if, the authority concerned has the requisite source of power. Such a power has been conferred upon the Mayor-in-Council by this court.
16. But having regard to the facts and circumstances of this case, we are of the opinion that the said decision has no application in the instant case for more than one reason.
(1) The appropriate authority has not applied his mind at all.
(2) The authorities who are not empowered to sanction the building plan for erection or re-erection had applied their minds, as a result whereof such order of sanction must be held to be a nullity.
17. We are, therefore, of the opinion that it was not a fit case where the learned trial Judge ought to have disposed of the writ application summarily without going into the merit of the matter. We, thus, for the foregoing reasons direct the appropriate authority of the Calcutta Municipal Corporation to consider the matter afresh and pass an appropriate order allowing or rejecting the application for sanction of the building plan submitted by the first respondent herein at an early date and not later than three weeks from the date of communication of this order.
18. The said appropriate authority must apply his mind before passing an order having regard to the requirement of law as contained in the Calcutta Municipal Corporation Act and the Building Rules and further keeping in mind the contention raised by the parties herein.
19. The said authority for the aforementioned purpose may also inspect the site.
20. For the reasons aforementioned, the impugned order is set aside and the appeal is allowed.
21. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned counsel for the Calcutta Municipal Corporation for communication.
Hrishikesh Banerji, J.
I agree.
