JUDGMENT
Chakravartti, C.J.
1. This is an appeal from a judgment and order of Bose J., dated 2nd February 1951 by which the learned Judge dismissed an application made by the appellants for certain orders under Section 45, Specific Relief Act and writs of Mandamus against the Commissioner of Police, Calcutta and the Corporation of Calcutta.
2. It has been held in the case of — Chairman, Budge Budge Municipality v. Mangru Mia’, A. O. O. No. 77 of 1951 which was heard along with this case, that an appeal lies. Of the two respondents in the appeal, the appellants abandoned their case against the Commissioner of Police. Only the case against the Corporation of Calcutta therefore requires to be considered.
3. Briefly stated, the facts are that two plots of land, situated at the junction of Gariahata Road and Ekdalia Road, were purchased in the names of three ladies, Nihar Kumari Debi, Sunayana Debi and Smriti Kana Debi. Who the actual purchasers were, whether the ladies themselves or they and Ganga Gobinda Mukherjee, the husband of Smriti Kana or the joint family, it is not very clear. Be that as it may, after the purchase of the plots, Ganga Gobinda approached the Commissioner of Police for permission or a license to build a cinema house on the site and after a third contiguous plot had been purchased in order to satisfy the requirements of the Traffic Regulations of the Police, the Commissioner informed Ganga Gobinda on 6th February 1945 that there was no objection from the Police point of view to the construction of a cinema house on the proposed site. It appears that the third plot also was purchased in the names of the three ladies. About three weeks before the Commissioner of Police gave his approval, on 14th January 1945, the three ladies, as the recorded owners of the plots, applied to the
Corporation of Calcutta for sanction for the construction of a cinema house on the lands and submitted building plans along with their application.
Soon, however, some opposition to the project from a certain section of the inhabitants of the locality began to assert itself. The Corporation did not dispose of the application and at one stage had some local enquiries made by some of its Councillors. In the meantime, supporters and opponents of the project appear to have both been active. About three years passed in that way and on 14th August 1948, the Commissioner of Police withdrew the permission given by him on ‘the grounds that the area had by then become a residential locality and that someone other than those who were applicants before the Corporation had applied for the permission of the Police. The Corporation has not yet given its sanction.
4. The application out of which the present appeal arises was made on 4th July 1950. The applicants were the three ladies and Ganga Gobinda Mukherjee and they alleged that although the plans submitted by them substantially complied with all building rules and regulations ‘ and although the construction of a cinema house at the proposed site was recommended by the Councillors who had made a local inspection and although sanction was recommended by the Corporation’s own Law Officer, the Corporation was withholding sanction illegally and arbitrarily. It was also alleged that the area concerned was a commercial area and the majority of the local residents were enthusiastic supporters of the project. It is unnecessary to refer to the allegations made against the Commissioner of Police.
5. The application was headed “In the matter of the Specific Relief Act (1 of 1877) and In the Matter of Writs of Mandamus.” The only affidavit by which it was supported was an affidavit of Ganga Gobinda Mukherjee. The prayers, so far as the Corporation was concerned, were for an order that the Corporation do grant forthwith sanction to build the cinema house on the site selected for the purpose and for a writ of mandamus, directing the performance of the said Act.
6. On 21st August 1950, the three ladies and Ganga Gobinda Mukherjee affirmed a joint affidavit in which the ladies stated that the allegations contained in the petition were true and that their fundamental right to carry on a cinema business and to raise a building and obtain necessary licenses and/or sanction therefor had been infringed.
7. Bose J. overruled some of the technical objections raised on behalf of the Corporation, but gave effect to two. He held that the application, as an application under the Specific Relief Act, was bound to fail, because it had not originally been affirmed by the three ladies at all and even subsequently it had not been properly affirmed by them. The learned Judge treated the affidavit of Ganga Gobinda as to no consequence, as he was merely an agent of the persons interested in the property. He also upheld the objection that the application could not be treated as an application under Article 226 of the Constitution and could not be allowed to be converted into an application under that Article so as to avoid the defect of the absence of proper affidavits.
8. On the merits, the learned Judge held that so far as sanction for the construction of the
building was concerned, the application was unnecessary, since under Rule 58 of Schedule 17 of the Calcutta Municipal Act, sanction could be assumed to have been given and so far as sanction to run a cinema house was concerned, the application was premature, since no such sanction could be given before the building was constructed.
9. I am inclined to agree with the learned Judge that the application, as an application under the Specific Relief Act, was not properly affirmed and must fail for that reason alone. Section 46, Specific Relief Act provides that “every application under Section 45 must be founded
on an affidavit of the person injured.” It may be that when there are a number of applicants who have a common interest and have suffered a common injury, an affidavit of one of them will be sufficient, but it is impossible to regard Ganga Gobinda as a person interested or injured. The lands, as I have already said, were purchased in the names of the ladies. In all dealings with the Corporation, it was they who were put forward as the persons who wanted sanction to construct a cinema house. Even in the solicitor’s letter of 27th May 1947, the ladies are referred to as the persons “desirous of erecting a cinema house.” It is true that an application for a building sanction could only be made by the recorded owner of the land, but in his letter the solicitor is not speaking merely of sanction to erect a building but also of a license to run a cinema house. It is, therefore, difficult to proceed, on the materials on record, on any other basis than that the ladies were the real and only owners.
It is again true that para. 3 of the application says that the “petitioners”, including thereby Ganga Gobinda, purchased the lands, but it is impossible to attach any value to that statement, since para. 8 of the application states that the “petitioners, being the recorded owners of the plots, applied”, although Ganga Govinda is admittedly not a recorded owner. In view of these confused statements, it seems reasonable to hold that whenever the word “petitioners” is used in the application, only the three ladies are meant and when para. 4 states that Ganga Gobinda approached the Commissioner of Police as the agent of the petitioners. It is meant that he did so as an agent of the ladies. In any event, it is impossible to feel satisfied that the application is founded on the affidavit of the person injured. The subsequent affidavit of the ladies, affirmed after the ‘Rule nisi’ had been issued, can be of no assistance to the appellants. It is also not, as the learned Judge has pointed out, a proper verification.
10. I would not, however, decline to treat the application as an application under Article 226. It is true that the Article is not mentioned and what is asked for is a writ of mandamus which is not exactly what Article 226 provides for and which the Court has no power otherwise to issue at all. But I think what was intended to ask for was a writ in the nature of mandamus under Article 226. It is proper to remember that the application was made early in July 1950, only five months after the Constitution had come into force and in those circumstances allowance may legitimately be made for incomplete familiarity with a new enactment. If the appellants had a good case on the merits, I would not throw out their application for the formal defect.
11. But the appellants, it appears to me, have no case on the merits. The materials in the paper-book make it perfectly clear that the whole trouble was caused, because the appellants would not do one thing at a time, but wanted two things to be done together. It is useless for them to say that they made a proper application for sanction for the construction of a building and submitted a proper plan and yet the Corporation was perversely delaying the sanction. They wanted not only sanction for the construction of a cinema building but also sanction to use it as a cinema house and it was because of the second demand that complications arose. The whole purport of the letter from the appellants’ solicitor to which I have already referred is to make out a case for running the proposed building as a cinema house and he leaves nothing in doubt when he says that his clients are “perfectly willing to accept the license with all reasonable safeguards as to the prevention of pubic nuisance or otherwise”. It must be said that the Corporation also was considering the question of licensing the building as a cinema house, but it can plead at least this much as an excuse that it was invited to do so. Its affidavit-in-opposition, however, discloses what strange and apparently not very straightforward reasons sometimes influence its decisions, for it quotes an order of the Administrative Officer in which that officer is saying that no sanction for building cinema houses will be granted, because such sanction must inevitably lead to the purchase of steel in the black market. However, it is abundantly clear from the letters of the appellants, from the notes of the Corporation’s Law Officer and from the proceedings of the meeting of the Corporation held on 23rd July 1947 that both parties were thinking not of the building, as such, but of the use of the building as a cinema house.
12. In my opinion, the learned Judge has taken the correct view, both as to the sanction for the building and the sanction for using the building as a cinema house. If the appellants wanted only to construct the building which they asked for sanction to build, they could take the sanction as granted as soon as fifteen days elapsed without the Corporation either granting or refusing sanction. On that point, the provisions of Rule 58 of Schedule 17 to the Act are clear. There is therefore no reason why the Court should make a superfluous order, directing the Corporation to do something which need not be done. The case for a sanction to use the building, when constructed, as a cinema house is wholly untenable at the present stage. That sanction can be given under Section 391 and can be asked for only after the building has been constructed, when its suitability for use as cinema house and the propriety of allowing any one to keep open a place of amusement and public resort at the site and locality concerned can be considered. The section does not contemplate a license in advance of even the construction of the building which will be used as a cinema house. It is not difficult to understand the anxiety of the appellants to assure themselves of liberty to run the building as a cinema house before incurring the heavy expenditure of its construction. But the Court cannot intervene to relieve them of that anxiety and force the hands of the Corporation when in law the license cannot possibly be given at the present stage.
13. For the reasons given above, this appeal fails and is dismissed with costs.
Das, J.
14. I agree.
Banerjee, J.
15. I agree.
K.C. Das Gupta, J.
16. I agree with my Lord the Chief Justice.
S.R. Das Gupta, J.
17. On the. merits this appeal, in my opinion, should be allowed as against the Corporation of Calcutta. The appellants have not pressed their appeal as against the Commissioner of Police.
18. The case of the appellants, so far as it is relevant for the present appeal, as made in their petition filed in the Court below is as follows: Petitioners 1 to 3 are the wives of Subodh Kumar Mukherjee, Amarendra Mukherjee and Ganga Gobinda Mukherjee respectively Petitioner 4 is the said Ganga Gobinda Mukherjee. The said Subodh Kumar, Amarendra and Ganga Gobindo are brothers and they along with their said wives are members of a family. Sometime in January 1940 it was agreed between the petitioners and the members of their family that a Cinema house would be started within the municipal limits of Calcutta and for that purpose plots of land would be purchased in the names of petitioners 1, 2 and 3 and the necessary licence would be taken in the name of petitioner 4. Pursuant to the said agreement the petitioners purchased two plots of land at the junction of Gariahat Road and Ekdalia Road, Calcutta. The petitioners being the recorded owners of the said plots duly applied and submitted a plan on 14-1-45 to the Corporation of Calcutta for sanction to erect the Cinema House and substantially complied with all building rules and regulations.
The Corporation of Calcutta visited the site twice through their Chief Executive Officer and referred the matter to their Estates and General Purposes Committee consisting of several commissioners who also visited the site on 25-1-47 and gave recommendation for sanction by their reports dated 4-2-47 and 13-2-47 respectively. Despite the said recommendation the matter was referred to the Chief Law officer for opinion who also recommended such sanction. Thereafter although repeated demands were made by the petitioners through their agent the said Ganga Gobindo Mukherjee the Corporation by their dilatory and arbitrary methods arbitrarily withheld the sanction up to date. In the premises the petitioners have been injured in their rights ‘inter alia’ to build the aforesaid Cinema House. The acts complained of consisted ‘inter alia’ of the withholding of the sanction by the Corporation of Calcutta to build the Cinema house. The petitioners, therefore, prayed amongst others for an order that the Corporation of Calcutta do grant forthwith sanction to build the Cinema house on the site selected and for an order that writs of mandamus do issue directing ‘the performance of the said Act.
19. In answer to the said petition an affidavit was filed by Dinesh Chandra Banerjee, City Architect. The Corporation of Calcutta, as it appears from the said affidavit made different cases. In the first place, it is said that the permission to erect a Cinema house cannot be granted unless the site is considered to be suitable. In the next place it is said that the matter was placed before the Estates and General Purposes Committee. The site was inspected by only two members of the Committee and
their report was placed before the Estates and General Purposes Committee. A dispute having been raised as to the authority of the said Committee to deal with the matter the said Committee on 13th March 1947 referred the matter to the Corporation for their decision. The Corporation having considered the opinion of the Chief Law Officer referred the matter to the then Chief Executive Officer requesting him to deal with it according to law.
Then it is said that the said plan contravened important building rules and regulations as laid down in the Calcutta Municipal Act and/or rules and regulations made thereunder. Thereafter it is stated that in view of the objection to the construction of a Cinema house having been received by the Corporation from a large number of local residents it could not come to a final decision as to the suitability of the site for construction of a Cinema house at the place. Lastly it is urged that the then Chief Executive Officer was considering the various objections received from local residents and before he came to a final decision the papers and files were called for by the Administrative Officer and the Administrative Officer, in view of the Government prohibiting grant of permit for cement or steel for construction of Cinema House and as the site was unsuitable, kept the matter pending for further consideration. Then the deponent makes a surprising statement in his said affidavit which does little credit either to himself or to the Administrative Officer or to the Corporation. He quotes an order of the Administrative Officer regarding sanction of a Cinema house made in another case in which it is stated that there is a current order of the Government under which no permit for cement or steel would be given and
“under the circumstances sanction of a building plan must inevitably result in the party’s purchasing cement and steel from the black market to construct their building.”
This is in substance the defence taken by the Corporation.
20. It is evident that the conduct of the Corporation in dealing with the matter in question has not only been contrary to the provisions of the Municipal Act and the rules framed thereunder but also high handed and arbitrary. The Corporation has contravened the provisions of the Calcutta Municipal Act and the rules made thereunder. It has in dealing with the matter allowed itself to be influenced by extraneous consideration which it had no right to do. It has kept the matter pending since January 1945 i.e. for long seven years without giving any decision either way. The rules framed under the Calcutta Municipal Act have made provisions for expeditious disposal of all applications for sanction of building plans. The Corporation in this case does not seem to have paid the slightest attention to the same. Under Rule 52 of Schedule 17 every person who intends to erect a new building is required to send to the Corporation an application for that purpose together with a site plan, plan of the building, separate plans of each floors, elevations and sections and specification of the ward. Rule 56 provides that all informations and documents which may be required and all objections which may be found necessary to make shall be required and made in one requisition and the applicant shall be apprised thereof at the earliest possible date. In fact Sub-rule (2) of the said
rule specifies a period of 15 days after receipt of the application under Rule 52 within which the Corporation may require the applicant to furnish him with any information on matters referred to in that rule or any document prescribed by that rule or to satisfy them with any objection that may have been taken under Rule 56.
Under Sub-rule (3) of Rule 56 it is provided that if any further information or document becomes necessary the same must also be asked for within 15 days from the receipt of the original information and document. Rule 57 provides as follows:
57.(1) Within fifteen days after the receipt of any application made under Rule 52 for permission to execute any work or of any information or documents or further information or documents required under this schedule, or within fifteen days after the Corporation have been satisfied that there are no objections which may lawfully be taken to the grant of permission to execute the work, the Corporation shall, by written order, either-
(a) grant permission conditionally or unconditionally to execute the work, or
(b) refuse, on one or more of the grounds mentioned in Rule 59 or Rule 63, as the case may be, to grant such permission.
(2) When the Corporation grant permission conditionally under Clause (a) of Sub-rule (1), they may in regard thereto impose such conditions, consistent with this Act, as they may think fit.
(3) Notwithstanding anything contained in Sub-rules (1) and (2), in any case in which it appears to the Corporation that any public improvements which may render necessary the acquisition of the site of a proposed building or any part thereof are desirable and expedient they may withhold sanction to the building plans submitted in respect of such building for a period not exceeding three months from the date of such submission.
This rule makes it incumbent on the Corporation either to grant or refuse permission as the case may be by a written order within the period mentioned therein. The provisions made in the said rule are mandatory. It is true that Rule 58 of the said schedule provides that if within the period prescribed by Rule 57 the Corporation has neither granted nor refused permission such permission shall be deemed to have been granted and the applicant may proceed to execute the work but not so as to contravene any of the provisions of this Act or any of the rules or bye-laws made thereunder. But the said rule only permits the applicant to proceed with the construction but at his own risk, that is to say, he must not violate any of the provisions of the Act or the rules or bye-laws made thereunder. The mandatory provisions of Rule 57 still remain and under the said rule it is incumbent on the Corporation to give its decision within the period mentioned. Rule 58 does not in any way affect the obligations imposed on the Corporation by Rule 57 and if the Corporation fails to discharge that obligation the same can be enforced in a Court of law.
21. The only grounds on which the Corporation may refuse sanction to erect a building
are those contained in Rules 59 and 63 of Schedule 17 of the Act, which are as follows:
59. The only grounds on which permission to erect a new building (other than a hut) may be refused are the following, namely:
(1) that the work, or any of the particulars comprised in the site-plan, building-plans, elevations, sections or specifications would
contravene some specific provision of this Act or some specific order, rule or by-law made thereunder.
(2) that the application for such permission does not contain the particulars or is not prepared in the manner prescribed in this schedule,
(3) that, in the case of a new building (other than a hut) falling within the street alignment or building-line of the public street projected under Section 63 of the Calcutta Improvement Act, 1911, the permission of the Chairman of the Board of Trustees for the Improvement of Calcutta has not been obtained,
(4) that any of the documents referred to in Rule 52 have not been signed as prescribed in rule 54;
(5) that any information or documents required by the. Corporation under this schedule have not been duly furnished; or
(6) that the applicant has not satisfied the Corporation in regard to any objections which
may have been taken under these rules to the grant of the said permission.
63. Notwithstanding anything contained in Rule 59-
(a) if any street shown in the site-plan is an intended private street, the Corporation may, in their discretion, refuse to grant permission to erect a masonry building or to convert one or more huts or temporary structures into a masonry building until the street is commenced or completed, and
(b) the Corporation may, for special reasons grant permission to erect a masonry building, or to convert one or more huts or temporary structures into a masonry building, or any site without reference to its position in relation to any street. Thus the Corporation has no jurisdiction to take into consideration any other matter–be it the objections raised by the residents of the locality or the possibility of the party purchasing cement and steel from black market to construct the building, Those are extraneous matters which the Corporation has no right to take into consideration in deciding whether sanction should be given or refused to construct a building. Again the Corporation, as I have already indicated, must act promptly in the matter of granting or withholding such licence. It cannot keep matters pending beyond the periods mentioned and certainly not for a period of seven years as in this case. It must decide one way or other and communicate its decision in writing. In my opinion, therefore, the Corporation of Calcutta has behaved in a manner which is not warranted by law and it should be set right by an order of the Court.
22. I shall now deal with the preliminary objections raised against the appellant by the respondent…..It has been urged
that requirement of Section 46, Specific Relief Act, has not been complied with, because, petitioners 1, 2 and 3 who are the owners of the properties in question and as such are the per-
sons injured have not affirmed the affidavit on which the application is founded. Bose J. has accepted that contention and has dismissed the application on that ground,
23. As against that contention it has been urged on behalf of the appellants that the petition filed in this case has been verified by an affidavit of one of the petitioners being petitioner 4 Ganga Gobindo Mukherjee and Ganga Gobindo Mukherjee is one of the owners of the properties in question which has been purchased in the names of petitioners 1 & 2 and 3 and therefore is a person who has been injured within the meaning of Section 46, Specific Relief Act.
24. Thus the questions which arise for our consideration are: (1) Is the petitioner Ganga Gobindo Mukherjee a person injured within the meaning of Section 46, Specific Relief Act; (2) even if that be so, is the affidavit of Ganga Gobindo alone on which the present petition is founded sufficient for the purpose of the said section? As I have already indicated, the petnrs.’ case as made in their petition ‘inter alia’ is that it was agreed by and between the petitioners and the members of their family that the plots in question would be purchased in the nam.es of petitioners 1, 2 and 3 and in para
1 of the petition a pedigree of the petitioners’ family has been set out which shows that petitioner 1 is the wife of one Subodh Mukherjee, uncle of the said Ganga Gobindo, petitioner 2 is the wife of one Amarendra Nath Mukherjee, brother of the said Gobindo Mukherjee and petitioner 3 is the wife of the said Ganga Gobindo Mukherjee himself. Thus it appears that the said brother and uncle of Ganga Gobindo and Ganga Gobindo himself are also the owners of the said property although purchased in the names of petitioners 1 to 3.
It is true that the petition has been somewhat clumsily drawn and in paras. 3 and 8 it is stated that the petitioners purchased the plot and that the petitioners are the recorded owners, but from the averments made in paras. 1 and
2 it appears that the real position was that the purchases were made in the names of petitioners 1, 2 and 3 although all the members of the family were the owners thereof and in any event the petitioner Ganga Gobindo is one of such owners. If that be so, then in my opinion, Ganga Gobindo is a person who is injured by the conduct of the Corporation. It has been urged before us by the Advocate General that it is only the persons who are the recorded owners i.e. whose names are registered in records of the Corporation as owners, who can be said to be persons injured and the real owners whose names are not so recorded cannot be said to be such persons. I am unable to accept that contention. In my opinion the person who is the real owner of a property in respect of which sanction has been withheld by the Corporation is as much a person injured, if not the only person injured, as the person whose name is recorded as the owner with the Corporation.
If the recorded owner is only a benamdar then I cannot see how it can be said that it is his rights which have been interfered with or he is the person injured. On this point. I accept the contention of the appellants. But the difficulty of the appellants, if this application be treated as purely an application under Section 45, Specific Relief Act, still remains. In the first place the affidavit on which the petition is founded is the affidavit of one of the owners.
In the second place all the persons injured i. e. all the owners have not been joined or made parties to this application and that is a more serious difficulty in the way of the applicants. Rule 5 of Chapter 29 of the Rules of the High Court O. S., which are Rules made u/s. 51, Specific Relief Act, provides that unless otherwise ordered, every rule under Section 46 of the Act shall call not only on the public servant, Corporation or inferior Court, but also on any person other than the applicant who may be affected by the act to be done or forborne, to show cause. The other owners of the properties in question are certainly persons who may be affected by the act to be done and therefore should have been served with the Rule. This not having been done I am of opinion that on technical grounds this application as an application under Section 45, Specific Relief Act, is not maintainable.
25. The learned counsel for the appellants then contended before us that this application is not merely an application under Section 45, Specific Relief Act; it is also an application under Article 226 of the Constitution. If that is so, then the technical rules of procedure which are applicable to an application under Section 45, Specific Relief Act, would not be applicable to an application under Article 226 and would not stand in the way of the appellants in getting reliefs on this application. The question therefore is can we treat this application as an application under Article 226 of the Constitution? It appears that the application has been instituted both ‘In the matter of the Specific Relief Act and also in In the Matter of Writs of Mandamus.’ In paragraph 19 of the petition the petitioners stated quite clearly that they make the application for relief under (a) the Specific Relief Act, Section 45 and (b) for relief under the writ of mandamus. In their prayers the petitioners ask amongst others for an order that the Corporation do grant forthwith sanction to build the Cinema house and they also ask that writs of mandanmus do issue directing the performance of the said act. Thus not only in the cause title taut also in the body of the petition and in their prayers the petitioners have made it clear that they are not only asking for reliefs under Section 45, Specific Relief Act but also for writs of mandamus.
It is urged on behalf of the respondents that the petitioners have not specifically mentioned Article 226. It is also urged that what they should have asked for was writs in the nature of Mandamus and not writs of mandamus. But I do not think we should be justified in not treating the application as an application under Article 226 on such technical ground. The application is, in substance an application under Section 45, Specific Relief Act as well as under Article 226 of the Constitution. Merely because in the cause title Article 226 has not been specifically mentioned and the proper writ or direction has not been prayed for, it cannot be said that the application is not one under Article 226 of the Constitution. In this connection I would refer to the following observations of Mukher-jea J. made in the case of — ‘Charanjitlal v. Union of India’, while dealing with the question, of powers of the Supreme Court under Article 32 of the Constitution.
“In any way Article 32 of the Constitution gives us very wide discretion in the matter of
framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.”
The High Courts, to my mind, possess the same powers under Article 226 and an application cannot be thrown out simply on the ground that proper writ or direction has not been prayed for.
26. I am, therefore, of opinion that the learned Judge should have treated this application
as an application under Article 226 and allowed
the same. This appeal as against the Corporation
should be allowed.