Howrah Municipal Corpn. & Others Vs.
Ganges Rope Co. Ltd. & Others [2003] Insc 676 (19 December 2003)
Shivaraj
V. Patil & D.M. Dharmadhikari. 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 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 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 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.
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 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
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 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) 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 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." 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 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 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
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 sanction for construction.
The
above stated legal position is not disputed on behalf of the respondent 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 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), 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 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.
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