Full Judgment Text
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CASE NO.:
Appeal (civil) 8561 of 1997
PETITIONER:
Howrah Municipal Corpn. & Others
RESPONDENT:
Ganges Rope Co. Ltd. & Others
DATE OF JUDGMENT: 19/12/2003
BENCH:
Shivaraj V. Patil & D.M. Dharmadhikari.
JUDGMENT:
J U D G M E N T
Dharmadhikari J.
By this appeal, the Howrah Municipal Corporation challenges
the Division Bench judgment dated 05.9.1997 of the High Court of
Calcutta whereby it has reversed the judgment dated 6.8.1996
passed in Writ Petition No.2561 of 1994 of learned Single Judge of
that Court. The Division Bench has directed grant of sanction for
construction of three additional floors to the multi-storeyed complex
which is already constructed up to four floors belonging to respondent
- Ganges Rope Co. Ltd.
The learned Single Judge in his order found that although the
sanction for construction for additional three floors to the existing
complex, sought by the respondent \026 company, was delayed by the
Corporation without any justification, its prayer for grant of sanction
for additional three floors cannot be granted as the Howrah Municipal
Corporation Building 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
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 on 26.4.1993:-
"I dispose 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
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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 order :-
"It appears 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 disposed of."
[Underlining to add emphasis]
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.
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 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
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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.
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. Sub\026rule (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 of sanction:-
"Notwithstanding anything 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 thus :
"Having regard to \026
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 building, it is unanimously felt
that erection of any building exceeding 10 mts in height in
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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.
Decision
The 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 Municipal Corporation"
[Underlining for pointed attention]
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."
Learned counsel appearing for the Corporation in assailing the
impugned order of the Division Bench contends that in view of the
amendment introduced by the State of West Bengal to the Building
Rules and the consequent resolution taken by the Corporation
restricting height of buildings on GT Road, the Corporation had no
option but to refuse the sanction for construction of three additional
floors and this communication of the Corporation although delayed,
cannot be described as malicious or against public interest. It is also
contended on behalf of the Corporation that on the orders 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)
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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 justified
in coming to the conclusion that on the date the High Court allowed
the company to submit plans for sanction for construction of
additional three floors and fixed a period within which the Corporation
had to decide the application for sanction, a vested right had been
created in favour of the company to seek sanction on the basis of the
unamended Building Rules as they existed. It is argued that on the
basis of subsequent amendment to the rules, it is not open to the
Corporation to refuse sanction when the Corporation is found to have
maliciously and for extraneous reasons delayed the processing of
application for sanction much beyond the period fixed for the purpose
by the last order of the High Court in the earlier writ petition.
Learned counsel submits that had the application for sanction
submitted with plans by the company for constructing three
additional floors been decided within the time allotted by the High
Court, the company would naturally have got the order of sanction
because by that date the amended Building Rules and the consequent
resolution of the Corporation restricting height of buildings on G.T.
Road had not come into force.
The main question that falls for consideration before us is
whether, by the order of the Court in which a period was fixed for the
Corporation to take a decision on the application for sanction for
construction of additional floors, any vested right has been created in
favour of the company to seek sanction for the construction of
additional three floors irrespective of subsequent amendment to the
Building Rules and the resolution of the Corporation putting
restrictions on the height of high rising buildings on GT Road.
The subject of sanction of construction is governed by the
provisions of the Act, Rules and Regulations as also the Resolution of
the Corporation which was taken with approval of Mayor-in-Council.
The statutory provisions regulating sanction for construction within
the municipal area are intended to ensure proper administration of
the area and provide proper civic amenities to it. The paramount
considerations of regulatory provisions for construction activities are
public interest and convenience. On the subject of seeking sanction
for construction, no vested right can be claimed by any citizen
divorced from public interest or public convenience.
To decide on the justification of the claim 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
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refused in the meantime on such grounds as may be
prescribed."
[Emphasis added]
What is to be noted from Section 175 (quoted above) is that a
period of sixty days is not a firm outer limit as the words "sixty days"
are prefixed by the word "ordinarily." It is also to be noted that the
provisions of the Act under consideration, compared with other
Corporation Acts of other States, do not provide for ’deemed
sanction’ or ’deemed rejection’ after expiry of the prescribed period
fixed for deciding the application for sanction.
In the case of Chet Ram Vashist v. Municipal Corporation
of Delhi & Anr. [1980 (4) SCC 647], the provisions contained in
Section 313 of the Delhi Municipal Corporation Act, 1957 came up for
consideration where not only a period of sixty days was prescribed for
according or disallowing sanction for construction but proviso under
sub-section (5) of that section further provided that in no case,
passing of orders on the application for sanction shall be delayed
beyond sixty days after necessary information demanded by the
Corporation has been received. Even on such specification of fixed
period, this Court held :-
"Sub-sections (3) and (5) of Section 313 prescribe a period
within which the Standing Committee is expected to deal with
the application made under sub-section (1). But neither sub-
section declares that if the Standing Committee does not deal
with the application within the prescribed period of sixty days it
will be deemed that sanction has been accorded. The statute
merely requires the Standing Committee to consider the
application within sixty days. It stops short of indicating what
will be the result if the Standing Committee fails to do so. If it
intended that the failure of the Standing Committee to deal with
the matter within the prescribed period should imply a deemed
sanction it would have said so. They are two distinct things, the
failure of the Standing Committee to deal with the application
within sixty days and that the failure should give rise to a right
in the applicant to claim that sanction has been accorded. The
second does not necessarily follow from the first. A right
created by legal fiction is ordinarily the product of express
legislation. It seems to us that when sub-section (3) declares
that the Standing Committee shall within sixty days of receipt of
the application deal with it, and when the proviso to sub-section
(5) declares that the Standing Committee shall not in any case
delay the 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."
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After the above order, the company applied for sanction of
additional three floors. The stand of the company, as contained in
letters, addressed to the Corporation, appears to be that it was
entitled to seek sanction on the same application which it had earlier
filed with plans for seven floors and on which under the orders of the
court in the first writ petition, sanction was granted up to four floors.
The Corporation sent replies and sought documents and additional
information from the company. It was insisting on the company to
submit fresh application for sanction with plans of three additional
floors to their existing construction. This insistence on the part of the
Corporation cannot be termed as malicious or a deliberate attempt on
their part to delay the processing of the application. Rule 3 of the
Building Rules supports the stand of the Corporation that for re-
erecting or making addition to the existing building, submission of
fresh plan for sanction was necessary. Rule 3 reads:
"Rule 3. Prohibition of building without sanction:
(1) No person shall erect a new building or re-erect or make
addition to, or alteration of, any building or cause the same to
be done without obtaining sanction from the Commissioner and
where necessary, a development permit from the concerned
authority under the West Bengal Town and Country (Planning
and Development) Act, 1979."
Rule 4 further reinforces requirement of a fresh application for
sanction with Plans for additional three floors. Rules 4 reads thus :-
"Rule 4. Notice for erection or alteration of a building : -
(1) every person who intends to make a new building on any
site, whether previously built upon or not, or re-erect or make
additions to, or alteration of, any building shall apply for
sanction by giving notice in writing to the Commissioner."
On behalf of the company it was argued that Rules (3) & (4)
apply in normal circumstances but in this case there was an order of
the High Court reserving a ’liberty’ and a right to the company to
seek sanction for further construction above 4th floor.
It is not possible for the court to read more into the order dated
23.12.1993 whereby the court merely observed that the applicant will
not be ’prevented’ from applying for further sanction. This one
observation cannot be read to absolve the applicant from the
obligations prescribed in Rules 3 & 4 of the Building Rules.
On a subsequent approach by the 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
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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 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 \026 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.
It has been urged very forcefully that the sanction has to be
granted on the basis of Building Rules prevailing at the time of
submission of the application for sanction. In the case of Usman
Gani (supra), the High Court negatived a similar contention and this
Court affirmed the same by observing thus:
"In any case, the High Court is right in taking the view that the
building plan can only be sanctioned according to the building
regulations prevailing at the time of sanctioning of such
building plans. At present the statutory bye-laws published on
30.4.1988 are in force and the fresh building plans to be
submitted by the petitioners, if any, shall now be governed by
these bye-laws and not by any other bye-laws or schemes which
are no longer in force now.
If we consider a reverse case where building regulations are
amended more favourably to the builders before sanctioning of
building plans already submitted, the builders would certainly
claim and get advantage of the regulations amended to
their benefit."
[underlining to add emphasis]
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.
The decision in Gani J.Khatri (supra) was followed by this
Court in the case of State of West Bengal vs. Terra Firma
Investment and Trading Pvt. Ltd. [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
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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
accrues. The learned Single Judge of the High Court should
have examined this aspect of the matter as to what right the
respondent had acquired by submission of the plan for
construction of high rise building before its application was
rejected by the statutory provision."
This court further observed :-
"It is well settled that no malice can be imputed to the
legislature. Any legislative provision can be held to be invalid
only on grounds like invalid legislation incompetence or being
violative of any Constitutional provisions."
Relying on Usman Gani’s case (supra), this Court reiterated
that ’builders do not acquire any legal right in respect of the plans
until sanctioned in their favour’.
Learned counsel appearing for the respondent company tried to
distinguish the decisions in the cases of Usman Gani and Terra
Pharma (supra) stating that in the present case the vested right
arose because of a time bound order of the Court. It is argued that
the time bound orders of the Court were not only disregarded but, as
has been found by the High Court, deliberately flouted for extraneous
reasons. It is submitted that the claim of sanction for additional three
floors available to the company on the date of submission of
application for sanction with plans could not have been frustrated by
the Corporation by deliberate delay in processing the application and
raising pleas and objections to the plan.
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.
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
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sanction for construction.
The above stated legal position is not disputed on behalf of the
respondent \026 company. What is being contended is that the order of
the High Court fixing a period for the Corporation to decide its
pending application for sanction creates a vested right in favour of
the applicant company to seek sanction for its additional proposed
construction on the basis of Building Rules, as they stood prior to the
amendment introduced to the Building Rules and the consequent
Resolution of the Corporation restricting the height of buildings on
G.T. Road. It is 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 \026 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.
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. Aiyer’s ’Judicial Dictionary’ (A complete Law Lexicon),
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
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.
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 \026 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.
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.
In the result, the appeal preferred by the Corporation succeeds
and is allowed. The impugned order of the Division bench of the High
Court dated 5.9.1997 is hereby quashed and that of the learned
Single judge restored. In the circumstance, however, we shall direct
the parties to bear their own costs in this appeal.