Satyabrata Sinha, J.
1. The Court: The petitioner, in this application has, inter alia prayed for issuance of a writ of or in the nature of Mandamus directing the respondents to grant formal sanction of the building plan in terms of the recommendation of the Municipal Building Committee dated 30. 12. 88.
2. The fact of the matter lies in a very narrow compass. The petitioner who is the owner of the premises No. 39, Shakespeare Sarani, Calcutta filed an application for sanction] of the building plan before the Calcutta Municipal Corporation on 11.10.88. The Municipal Building Committee recommended the sanction of the said plan on 30.12.88. Prior thereto no objection relating to sanction of the building plan submitted by the petitioner was raised by the respondents.
3. The Municipal Building Committee in its meeting dated 30.12.1988 passed a resolution directing the petitioner to comply with certain requisitions recommended the proposed building plan for sanction, subject to fulfilment of three conditions and the same was communicated to the petitioner on 27.1.1989. According to the petitioner all the requisitions have beep complied with and pursuant to the said direction he has also executed two Deeds of Gift dated 2.2.89 and 11.8.89, which have duly been accepted by the authorities of the Calcutta Municipal Corporation. Admittedly the petitioner submitted the revised plan on 14. 2. 1989. The Governor of West Bengal, however, has promulgated an Ordinance in exercise of his power under Article 213(1) of the Constitution of India on 18.12.89 whereby and whereunder restrictions have been imposed in allowing construction of a building above 4th floor in terms of Section 398 of the Calcutta Municipal Act. It is asserted by the petitioner that the Mayor-in-Council has approved the plan on 19.1.89. The question, which, therefore, arises for consideration in this application, is as to whether the aforementioned Ordinance, which has since been repealed and replaced by a legislative Act known as Calcutta Municipal Corporation Act, 1989 is applicable to the facts and circumstances of this case or not.
4. Mr. Anindya Mitra, Learned Senior Counsel appearing on behalf of the petitioner, submitted that keeping in view the facts and circumstances of the case and in particular the fact that the plan in question had been saactioned in January 1989, the said Ordinance cannot have any application whatsoever inasmuch as it has no retrospective or retroactive operation. The Learned Counsel in support of his aforementioned contention has relied on a Division Bench decision of this Court in Atmaram Kanoria and Ors. v. L.K.R. Prasad and Ors., reported in 1990(1) CLJ 169.
5. Mr. Roychowdhury, Learned Counsel appearing on behalf of the respondent, however, submitted that as the petitioner did not comply with the requirements of the order dated 19.1.89, no right has accrued to the petitioner and, thus, the matter is now to be governed under Section 398A of the Calcutta Municipal Corporation Act. In this connection, my attention was drawn to the letter dated 21.8.89, as contained in Annexure A’ to the affidavit-in-opposition. It has been submitted that even the possession of the gifted lands has not been handed over and, as such, the Condition No. 3 of the said order has been violated. The Learned Counsel has also drawn my attention to the letter dated 26. 3. 90 issued by the District Building Surveyor to the petitioner, which is contained in Annexure ‘B’ to the affidavit-in-opposition.
6. Mr. Mitra, Learned Counsel appearing on behalf of the petitioner, in reply submitted that as architectural sanction has already been granted and the petitioner has complied with all the requirements, the Member, Mayor-in-Council must be held to have granted approval to the petitioner’s application for sanction of a building plan. The Learned Counsel submitted that the matter has been placed before the Member, Mayor-in-Council on 4.12.88 and it would appear that the petitioner has been allowed to retain possession of the land gifted to the Calcutta Municipal Corporation, as would be evident from the letter of the petitioner dated 11.9.89, addressed to the Chief Valuer and Surveyor, Calcutta Municipal Corporation.
7. Section 398A of the Calcutta Municipal Corporation Act has corns into force with effect from 18.12.89. In Atmaram Kanoria and Ors. v. L.K.R. Prosad and Ors. reported in 1990 (1) CLJ 169, it has been held that the said provision has no retrospective operation. Desai C.J. , speaking for the Division Bench observed the right to apply for and/or obtain sanction for erecting a building is governed by this provision as from the date of coming into force of the Ordinance. In other words, this law is in force as from that date and it will remain operative during the specified period.
8. In Terrafirma Investments & Trading Pvt. Ltd. v. State of West Bengal and Ors., 1992(1) CHN 415, a Division Bench of this Court, inter alia, held that Section 398A of the Act has a permanent effect and thus, the same is not a temporary statute. The Division Bench held that the said Section 398A of the said Act is unconstitutional. However, it is accepted at the Bar that in an appeal preferred against the said judgment the Supreme Court has stayed the operation of the said judgment.
9. In Trimplex Industries Pvt. Ltd. v. State of West Bengal 1992(2) CUT 475, a Learned Single Judge of this Court followed the decision in Terrafirma Investments’ case (supra).
10. In this case, the petitioner has not questioned the vires of Section 398A of the Calcutta Municipal Corporation Act. It is not disputed that section 398A of, the Act is prospective in operation and, in this view of the matter, in the event, the application of the petitioner for sanction of the building plan has been allowed prior to coming into force of the said provision, the petitioner would not be affected thereby nor the respondent-Corporation can insist upon the petitioner to file a revised plan in terms thereof. Admittedly, the petitioner filed an application for sanction of the plan for a multistoreyed building in 1988. The matter received consideration at the laws of the Building Committee. By a letter dated 27.4.89 the petitioner was informed that his proposal for erection of a new partly seven, partly eight and partly nine storeyed building for business cum residential purposes has been considered by the Committee and recommended for sanction, subject to compliance with the following requisition :-
“1. Underground reservoir should be shifted beyond 3.5 metres from the property boundary line abutting on Sarajini Naidu Sarani, i. e. , Old Rowdon Street.
2. A strip of land fallen within 11 metres from the centre line of Shakespeare Sarani shall have to be thrown to C.M.C. Road.
3. The corner of widen Shakespeare Sarani and Rowdon Street shall have to be splayed by 2. 4X2. 4 metres and the splayed portion shall have to be thrown to C. M. C. Road.
4. However, the applicant will get advantage of ground coverage, E.A.R. , obligatory open space etc. as he could get prior to throwing that strip of land.
5. All other departmental requisitions shall have to be complied with. ”
11. It appears from the record that the aforementioned proposal was recommended by the Chairman on 16.1.89 and the same has been approved by the Mayor-in-Council on 10.1.89. The original sanction order bears the signature of the P.A. to the City Architect of the Calcutta Municipal Corporation as on 25.1.89.
12. The contention of the petitioner is that Mayor-in-Council having approved the said recommendations, the plan in question would be deemed to have been sanctioned. It is not disputed that the petitioner has filed a revised plan on 14.2.89 showing shifting of the underground reservoir beyond 3. 5 metres from the boundary line. It is also not disputed that the petitioner has executed a Registered Deed of Gift on 11.8.89 whereby and whereunder a strip of land falling within 11 metres from the central line of Shakespeare Sarani has been donated in favour of the Municipal authority and the said gift has been accepted by the respondent-Corporation by putting their consent in terms of their letters dated 7.9.1988 and 11.9.1989. Copies of the said Deeds of Gift are contained in Annexure ‘C’ to the writ petition. However, it is accepted that actual possession of the land in question has not yet been handed over. The contention of the petitioner, in this connection, is that on the said gifted land the boundary wall of the petitioner stands. The petitioner has an existing residential building, which is proposed to be demolished for construction of the new building as per the sanctioned building plan. According to the petitioner, therefore, the said land is not capable of being physically handed over to the Municipal Authorities unless the entire building is demolished. The petitioner, in this connection, has placed reliance upon a letter dated 21.6.89, from perusal whereof it appears that allegedly the Chief Commissioner duly recorded his recommendation and approval by retention of possession by the petitioner in respect of the said two strips of land. The said Memo reads thus :-
Premises No. 39, Shakespeare
Sarani, Calcutta-700 017.
Aide Memoir to Mr. Prasanan, Commissioner, C.M.C.
1. I am the sole owner of the above mentioned premises. I intend to develop my property myself, not through any developer or promoter, by constructing a top class Multistoreyed Building for business cum residential purpose. The top two floors only will be for residential purpose for occupation by myself and my family and no portion of this is to be sold. The remaining floors will be the office complex.
2. The building plan and Structural Design has been prepared by the well-known Architects, M/s. Kothari & Associates of Camac Street.
3. The NBC had considered the proposal on 30.12.88 and had re” commended sanction of the plan subject to a few conditions, all of which have been complied with except their point No. 2. (Reference : Enclosed letter dated 27.1.89 from the District Building Surveyor-Borough No. 7)
4. The procedures outstanding for the receipt of the sanction are :-
(i) To make a gift of the strip of land along the Boundary facing Shakespeare Sarani for proposed road widening. The building will be erected about 18 ft. inside the Boundary Line. So, provision has been made to comply with proposed CMDA guideline to widen, the road at some future time. I am prepared to give any kind of written undertaking to the C.M.C. that if and when the occasion arises they may, by just an intimation acquire the strip of land and that this undertaking will be binding for all time and cannot be revoked or be the subject of a court case at any future date. This should satisfy the C.M.C.
In case this does not satisfy the CMC, I am prepared to make a conditional gift to CMC, that the gift would come into effect, when Shakespeare Sarani would be widened, till then the land would be maintained by me as Road Side Garden.
(ii) Rule 48 of Section VI.
I shall give an irrevocable undertaking that the entire building, including our houses etc. will be demolished before the commencement of the new construction.”
13. The contention of the respondents in this regard appears to be that the matter was placed before the Commissioner on 4.12.89 and the Commissioner directed the same to be placed again for consideration of the Municipal Building Committee. The petitioner, in this connection, has placed on record a letter dt. 26.3.90, which is contained in Annexure C/1 to the writ application, from perusal whereof it appears that the District Building Officer communicated to the petitioner that the Municipal Commissioner has passed an order on 5.12.89 to place the case before the Municipal Building Committee again, but, in the meantime, the Ordinance made by the Government of West Bengal came into force and the Deputy Municipal Commissioner in his order dated 28.12.90 directed the Department to deal with the case in accordance with the new Ordinance. However, in the said letter it has clearly been stated that the matter was placed before the Commissioner on 5.12.89 for considering the architectural feature. Mr. Mitra has pointed out that architectural feature had already been sanctioned by the Municipal Committee held on 30. 12. 88.
14. From perusal of the records of the case, it appears further that the petitioner had submitted a memoir to the Commissioner of C.M.C. which has been noticed hereinbefore.
15. The Commissioner, admittedly, accepted the proposal, which were marked ‘A’ and ‘B’ thereto, viz. , the last but one paragraph and the last paragraph of the aforementioned Memoir. The petitioner also enclosed a copy of certain Memoir, i.e. letter dated 28.8.89 addressed to the Chief Valuer & Surveyor wherein the petitioner, inter alia, requested the said authority of the Respondent Corporation that it may not insist on handing over the land immediately. The petitioner also, however, confirmed his stand that the said land would be handed over at the time of actual widening of the road.
16. The petitioner again in terms of his letter dated 11.9.89 pointed out that the difficulties in handing over the possession as it was not possible for him to shift his boundary wall and demolition of the structure. It appears that the aforementioned Memoir was placed before the different authorities.
17. The petitioner has further issued a certificate to the effect that during excavation the petitioner shall provide adequate shoring of the sites of the basement to ensure safety of adjoining structure. He further assured that the piling will be done with R.C.C. Bored pipes of the approved diameter and necessary tests for bearing capacity for both individual and group piles shall be carried out as per the relevant I.S. Code, as required, which shall remain binding on him and the Contractor employed by him.
18. The petitioner again on 10.1.90 filed an application before the Deputy Municipal Commissioner (Building) to sanction the plan stating, inter alia, thereof that he had made a gift of the land in question ‘on condition’ for sanction of the plan. It appears that no reply to the said letter has been issued. The petitioner, thereafter, served a notice of his Advocate, upon the Commissioner of the C.M.C. on 19.2.91.
19. It further appears that the petitioner has again sent a letter dated 11. 5. 92 to the Municipal Commissioner.
20. The respondents, on the other hand, have relied upon a letter dated 7. 9. 89 addressed to the petitioner whereby and whereunder the petitioner was requested to handover free gifted land on 12.9.89 and it was contended therein that the proposal for road side garden of the said free gifted land will be considered by the C.M.C. authorities, after getting possession thereof as indicated hereinbefore. The petitioner replied to the said letter by this letter dated 11.9.92.
21. The facts aforementioned leave no manner of doubt that the plan in question was in effect and substance approved by all the concerned authorities as far back as on 11.2.89, i.e. , much prior to the coming into force of the said Ordinance. It is also clear from the records that the petitioner has substantially complied with all the conditions imposed in the said order of sanction except that he is not handed over the possession of the land gifted by him to the Calcutta Municipal Corporation pursuant to the aforementioned conditions.
22. From the records of the case, therefore, the following facts emerge :
(a) The Municipal Building Committee recommended sanction of the said building plan subject to the condition mentioned therein on 30.12.88. (b) The proposal of the Municipal Building Committee was also approved by the Mayor in Council who admittedly is the appropriate authority. (c) Except handing over the vacant possession of the lands gifted by the petitioner to the Calcutta Municipal Corporation in terms of the two deeds of gifts, the petitioner has fulfilled other requisitions. In relation to the handing over the actual possession of the gifted lands, the petitioner has given an undertaking, (d) The proposal of the petitioner also appears to have been accepted by the Commissioner of the Calcutta Municipal Corporation.
23. In this view of the matter, the approval of the order dated 30.12.88 being a conditional one and the said conditions having been fulfilled by the petitioner, the building plan itself would be deemed to have been sanctioned on 30.12.88, that is, prior to the coming into force of the Calcutta Municipal Corporation Amendment Ordinance which was promulgated on 18th December, 1989 by Ordinance No. IX of 1989 whereby and whereunder section 398A was added in the said Act.
24. This Court as noticed hereinbefore in the case of Atmaram Kanoria and Ors. v. L.K.P. Prasad & ors. reported in 1990(1) CLJ 169, has clearly held that the provision of Section 398A is prospective in nature.
25. In view of the fact that in terms of the recommendation of the Municipal Building Committee dated 30. 12. 88 and as subsequently approved by the Mayor in Council and other competent authorities of the Calcutta Municipal Corporation, a right has been crystalised in favour of the petitioner, and this, the said right could not have been taken away except by an appropriate legislation. In view of the fact that the said right has accrued in favour of the petition prior to the coming into force of the provision of Section 398A of the Calcutta Municipal Corporation Act, the petitioner is entitled to a direction from this Court upon the respondent Corporation to sanction the building plan in terms of its recommendation dated 30.12.88. It may, however, be recorded that the petitioner is bound by the undertaking given by him in relation to the aforementioned matter as also the undertaking given by him with regard to the handing over of the vacant land to the Calcutta Municipal Corporation immediately on demolition of the building in question. The Calcutta Municipal Corporation will be entitled to utilise the said land gifted to it by the petitioner for its own use. This order is, however, not subject to any order that may be passed by the Supreme Court of India in the appeal which is pending before it against the judgment of this Court in the case of Terra Firma Investment and Trading Pvt. Ltd. and Ors. v. The State of West Bengal and Ors. reported in 1992(1) Calcutta High Court Notes P. 415.
26. Moreover, in terms of Section 396 of the Act read with Rule 55 of the Building Rules, the Respondent Corporation was bound to accord or refusing its sanction within a period of three months from the date of submission of the building plan.
27. In any event it should have sanctioned the building plan within the aforementioned period from the date of acceptance and compliance of the condition stipulated in the said letter dated 22.1.1989.
28. The respondents, as is evident from the records delayed the grant of sanction of the said building plan and then it cannot take advantage of its own wrong, nor the petitioner can suffer owing to acts of ommission and commission on the part of the respondent.
29. For the reasons aforementioned this writ application is allowed and the respondents are directed to sanction the building plan submitted by the petitioner in terms of the aforementioned recommendation by the Municipal Building Committee dated 30.12.88. It is, however, made clear that the said building plan is to be sanctioned subject to the fulfilment of conditions mentioned therein except that the petitioner shall hand over actual physical possession of the lands gifted by him in favour of the Calcutta Municipal Corporation in terms of the two deeds of gift dated 2.2.89 and 11.8.89 immediately upon demolition of the building in question without any demur whatsoever. In case the petitioner fails and/or neglects to hand over vacant possession of the said land in favour of the Calcutta Municipal Corporation, it would be open to it to take steps against the petitioner in accordance with law including stopping of construction of the building and/or demolition of the constructed portion of the building.
30. Let a writ of mandamus be issued accordingly. However, keeping in view the facts and circumstances of the case the parties are directed to pay and bear their own costs.
31. All parties concerned shall be at liberty to act on a signed xerox copy of this Judgment on the usual undertaking.