SAMARESH DAS Vs. CALCUTTA MUNICIPAL CORPORATION

JUDGEMENT

(1.) IN the writ petition, the petitioner challenged the validity of the Memo dated 29th March, 1985 issued by the District Building Surveyor, District No. IV (P) of the Calcutta Municipal Corporation which is annexure e to the petition and the order passed by Shri C. K. Choudhury, Chief Physical Planner, CMDA dated February 27, 1985 which is Annexure B to the petition. The case of the petitioner that the petitioner is the owner of the Premises No. 152, Shyamaprasad Mukherjee Road, Calcutta 26 and that there was a structure on the said premises. The petitioner for the purpose of constructing a new building on the premises in question made arrangements with the tenants of the said premises and got the premises vacated and thereafter demolished the old building in question that were standing thereon. Thereafter, the petitioner submitted a plan for construction of a six storied building thereon before the Calcutta Municipal Corporation after obtaining no objection certificate from the -Metro Railway "authorities and the Calcutta Improvement Trust. The application for sanction of the building plan was submitted to the Calcutta Municipal Corporation on 29. 2. 1984 and thereafter when the petitioner made enquiries in the matter from the Municipal Authorities about the reasons for delay the petitioner was told by the Municipal Authorities about the reasons for delay that a certificate of no objection from Calcutta Metropolitan Development Authority was necessary for sanctioning the plan in question and. thereafter the petitioner filed an application before the Calcutta Metropolitan Planning Authority for permission for development under the provision of section 46 (3) (b) of the West Bengal town and Country (Planning and Development) Act, 1979.

(2.) ON 27th February, 1985, Shri C. K. Choudhury, Chief physical Planner, CMDA rejected the said application for permission for development. The said order was as follows:

(3.) MR. Nani Bhusan Sirkar, learned Advocate appearing on behalf of the petitioner, contended in the first place that under the provision of Section 44 of the West Bengal town and Country (Planning and Development) Act, 1979 no person could use or permitted to be used any land or carry out any development in that area otherwise than in conformity with such development plan and as such according to Mr. Sarkar, if any development had been prepared in that event the Calcutta Metropolitan envelopment Authority had no authority and/or jurisdiction to refuse to grant any permission for making any construction and development on the land in question. Admittedly, the land in question is situated within the area of operation of West. Bengal Town and Country (Planning and Development) Act, 1979 and that under the Scheme of the Act, if a development, plan has been prepared by the said Authority, in that event no person can use or permit to be used such land in conformity of that plan and that under Section 46 of the said Act, the authority concerned has a right to grant and/or refuse permission. According to Mr. Sarkar, the provision of Section 46 could only be invoked if the development plan under the said Act has been made. Mr. Sarkar further contended that the order passed by the Chief Physical Planner CMDA is on the fact of it illegal inasmuch the same amounts to deprivation of the petitioners property without the authority of law. It was submitted that if the land was needed for any public purpose or for a purpose of Metro Rail in that event nothing prevented the. said authorities to acquire the said land under the provision of law by paying appropriate compensation, but the said authorities by passing an executive order cannot deprive the petitioner of right of enjoyment of the said property. Further, it was contended that even assuming that there was no development plan, in that event also, the authority concerned may either grant permission or refuse permission, altogether. But such an order that permission could not be given at this stage is dehorn the provision of the law. Mr. Sarkar further submitted that in any event section 46 (3)of the said Act confers an uncontrolled, unanalyzed guided and power inasmuch as what are materials that would be taken into consideration had not been provided in that Act and further in a matter like this, when a person is deprived of his right of enjoyment of his property permanently or otherwise, the person concerned had no opportunity to make representation and that an Executive Authority had been provided with the power to refuse permission to make any construction without giving any opportunity and/or hearing. Further that the plot in question may be required in future for any public purpose cannot be a ground for refusing permission to make any construction, on the said land. Mr. Sirkar further submitted that on the plot in question there was an existing building and that the said building had been demolished for the purpose of construction of six storied building thereon and that constructing a building after demolishing the old one does not and cannot come within the purview of development in the meaning of the said Act. There are buildings on the two sides of the land and that further at the time of the hearing it was admitted by the parties that by the side of the building a multi-storied building is being constructed by the Government of India. But the petitioner had been prevented from making any construction upon his land and that is on the face of it arbitrary and mala fide. It was further contended that a person could not be deprived of his property without any authority of law as provided in Article 300a of the Constitution of India.