Judgment:
Satya Brata Sinha, J.
1. This application has been filed for punishing the alleged contemners for alleged disobedience of an order D/-23rd July, 1996 passed by a Division Bench of this Court in G. A. No. 1603 of 1996 arising out of Matter No. 3925 of 1994.
2. The fact of the matter is not much in dispute. The petitioners had filed an application for sanction of a building plan in terms of the Building Rules framed by the Calcutta Municipal Corporation in terms of the Calcutta Municipal Corporation Act. The said application was rejected by the Municipal Building Committee on the following grounds :-
(1) The opinion of D. C. (T) shall have to be obtained.
(2) It has been observed that in order to avoid Rule 71 (A) more than one building has been linked through common stair. This should be avoided and the plan be recasted and put up.
Admittedly, the petitioners complied with the first requisition, viz., it obtained the opinion of D. C. (Traffic). As regard applicability of Rule 71 (A) is concerned, the petitioners filed a writ petition. The learned Trial Judge held that Rule 71 (A), keeping in view the facts and circumstances of the case, has no application inasmuch as there exists only one building. The Calcutta Municipal Corporation took out an appeal from the said judgment and order. A Division Bench of this Court, keeping in view the parameters of judicial review, thought it fit to remit the matter back to the Building Committee, inter alia, on the ground that the question as to whether there exists two buildings connected by a stair case or there is only one building is essentially a question of fact. This Court in the aforementioned circumstances directed as follows :-
However, there cannot be any doubt whatsoever that the question as to whether in the facts and circumstances of this case Rule 71A of the Building Rules is attracted or not would essentially depend on the question as to whether the petitioner intended to construct two separate buildings to be connected by a common stair case or not. If the building plan shows that the sanction of the petitioners is only to construct one building, evidently Rule 71A of the Building Rules would not be attracted. However, the same being essentially a question of fact, in our opinion, we should not embark upon the said question for the purpose of arriving at a finding one way or the other on the basis of the affidavits filed on behalf of the parties. We, having regard to the facts and circumstances of this case are, therefore, of the opinion that the matter should be considered afresh by the Municipal Building Committee to which authority the petitioners would be entitled to place the relevant materials.
The Municipal Building Committee must exercise the statutory power in terms of the provisions of Statute, i.e. by passing a speaking order.
The concerned authorities should hear either the parties themselves or their authorised representatives.
While doing so, the said committee would also grant an opportunity of hearing to the petitioners and allow it to place all documents. It is needless to say that while considering the matter, the Municipal Building Committee would also take into consideration the recommendation made by the Building Department. However, we do not mean that the Municipal Building Committee is bound by the recommendations of the Building Department although it certainly requires consideration at the hands of the said committee.
However, it is stated at the Bar that pursuant to the judgment passed by the learned Trial Judge, the Municipal Building Committee has already taken or is likely to take a decision in the matter in near future. If any decision has already been taken in favour of the petitioner, the question of giving a further opportunity of hearing to the petitioner or considering the matter afresh should not arise. In such an event, the Municipal Building Committee would straightway hand over such sanctioned plan in favour of the petitioner so that they can commence construction of the building forthwith. These observations are being made keeping in view the fact that the order impugned in the writ application was passed as far back as 10-6-94 and the matter has remained pending for about 2 years. However, in the event no decision has yet been taken, the Municipal Building Committee shall comply with this Court's order at an early date, preferably within a period of one month from the date of communication of the order.
The aforementioned judgment of this Court was communicated to the respondents. The petitioners, however, received a letter D/- 3-9-1996 which is contained in Annexure 'X-4' to the application, from a perusal whereof it appears that the matter came up before the Building Committee on 26-6-96 pursuant to an interim order passed by this Court and the following resolution was passed on that date :-
In pursuance of the order of the Hon'ble Division Bench of Calcutta High Court, the plan case was considered in the meeting of the Municipal Building Committee and recommended it for sanction subject to compliance with the following requisitions :-
1. The Competent Authority, Urban Land (C & R) Act, 1976 should be informed that the plan case was processed for sanction on the basis of no-objection issued under Section 22 of U. L. C. Act;
2. All external walls of the building should be minimum 200.
3. All ventilation shafts should be marked in the plan.
4. The plan case was once considered on 17-5-94 by the M. B. C. wherein it was decided that observation of D. C. (T) is to be obtained since due to the construction of a number of flats, huge traffic load will be generated. The no-objection certificate of D. C. (T) has not yet been received. Shri K. B. Sur, O. C. Spl. Cell (T) who is present in the meeting states that the plan case may be considered for sanction provided that the construction of flats in the ground floor are not made. In view of above, the ground floor is to be used exclusively for car parking spaces besides service units;
5. Plantation is to be made on the footpath in front of the premises or in its front open space as per guidelines of C. M. C;
6. Proposed open storey in the 3rd floor should not be covered in future;
7. In terms of the order of the Hon'ble High Court the party will not make construction without leave of the Court. Watch should be made so that this order of the Hon'ble Court is complied with;
8. All other departmental requisitions are to be complied with.
Unfortunately, the said order was not placed before this Court when the Division Bench delivered its judgment nor any objection was raised by the Calcutta Municipal Corporation to the effect that apart from the applicability of Rule 71A of the Building Rules, the building plan submitted by the petitioners cannot be passed for various other reasons. Then again, the Building committee, after passing of the aforementioned judgment, gave an opportunity of hearing to the petitioner and passed an order stating that the building plan cannot be recommended by the Municipal Building Committee for the following reasons :-
1. 48 flats have been proposed to be constructed, but no open space for recreational activities or for children's playing area have been provided.
2. Density of the population in the flats will be above 500 persons per acre which is 60% higher than desirable density which is not conducive to the desirable environment for the inmates of the proposed building.
3. Traffic load of the area has increased to a great extent over the years and has become great problem in that area. The owner of the premises did not agree to provide entire ground floor for car parking space for the inmates of the building and also for the visitors. This may pose enormous problem to the smooth movement of the cars in that area.
The Committee was, therefore, of the opinion that in pursuance of the provision of Section 391(5) of the C.M.C. Act, 1980, the building plan should be revised maintaining the aesthetic quality of urban and environmental design. The owner of the premises and the Architect of the project should be informed accordingly.
3. Mr. Jayanta senior counsel appearing on behalf of the petitioners, submits that from a perusal of the aforementioned orders it would appear that the Building Committee prevaricated its stand from stage to stage and they have rejected the building plan submitted by the petitioner on one pretext or the other. Mr. Biyani, appearing on behalf of the respondents, however, submits that keeping in view the fact that this Court's order had been complied with by passing an order, the alleged contemners cannot be said to have wilfully disobeyed the judgment and order dt. 23-7-1996 passed by a Division Bench of this Court. In support of his aforementioned contention, the learned counsel relies upon a decision of the Supreme Court in J.S. Parihar v. Ganpat Duggar reported in : AIR1997SC113 . The question which arises for consideration in this application is as to whether the alleged contemners have violated the order passed by this Court or not. In J. S. Parihar's case (supra), the Apex Court held :-
6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S. K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressel. in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge; the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.
4. The question as to whether the order of this Court had been complied with or not must be considered in the centext of the factual matrix obtaining at the time of passing of the judgment. It is really unfortunate that the Calcutta Municipal Corporation, being a State within the meaning of Article 12 of the Constitution of India, did not bring to this Court's notice the aforementioned resolution dt. 26-6-1996. Had the said resolution been brought to this Court's notice, this Court could have taken another view. It is really strange that even a review application was not filed by the Calcutta Municipal Corporation and, as indicated hereinbefore, they, while purporting to comply with this Court's order, passed an order on 24-9-1996 which is contained in Annexure 'X' to the affidavit affirmed by Sri Supriyo Kumar Deb. Different reasons have been assigned by the Municipal Building Committee at three different stages. There cannot be any doubt whatsoever that a person who intends to construct a building cannot obtain the sanction of a building plan as a matter of right, but there cannot also be any doubt whatsoever that such a building plan has to be sanctioned in the event the Building Rules framed by the Municipal Corporation are complied with. Once the requirment of law is complied with, the respondents were bound to sanction the building plan. However, keeping in view the facts and circumstances of the case we are of the opinion that the alleged contemners do not appear to have wilfully disobeyed the order of this Court. The Supreme Court in J. S. Parihar's case : AIR1997SC113 (supra) held that once an order is passed on the basis of the directions issued by the Court, a fresh cause of action arises for seeking redressal in an appropriate forum.
5. Having regard to the fact of the matter, we are satisfied that the respondents have not passed an order, on the basis of the directions issued by this Court. We are, however, of the opinion that they might have acted bona fide and they might not have any motive to by pass the order of this Court.
6. For the reasons a forementioned, we are of the opinion that although it is not, a fit case in which the alleged contemners should be punished, we are of the opinion that the respondents should consider the matter afresh in the light of the judgment of this Court dt. 23-7-1996 and pass an appropriate order upon giving a fresh opportunity of hearing to the petitioners. Such an order should be passed within four weeks from the date of communication of this order, keeping in view the fact that the building plan was submitted as far back as in 1993.
7. This application is disposed of with the aforementioned direction.
8. All parties to act on a signed copy of the operative portion of this judgment on the usual undertakings.
Basudev Panigraphi, J.
9. I agree.