Ct. No. 25 Santanu Chowdhury vs Bm
2022 Latest Caselaw 8560 Cal

02   21.12.                            WPA 13348 of 2018
     2022
     Ct. No. 25                    Santanu Chowdhury
                                              Vs.
       BM,JR               The State of West Bengal and others.
                                         ---------------

Mr. Arkadipta Sengupta Mr. Alminhaz Karim ... for the petitioner.

Mr. Raghunath Chakraborty Mr. Mahaboob Ahmed ... for Maheshtala Municipality.

                  Mr. Manas Kundu
                  Ms. Neelam Singh                             ... for the State.

The petitioner has challenged the decision of the

Board of councilors in its meeting held on August 30,

2017, which was signed by the Chairman of the

Municipality on September 5, 2017 whereby the

building plan submitted by the petitioner for sanction of

the second floor was cancelled on the ground of material

misrepresentation and adopting fraudulent means.

The petitioner claims to have purchased the ground

floor roof of the building in question from one Jaya

Mondal by virtue of a deed of conveyance dated April 3,

2012 being no. 3692 of 2012. The further case of the

petitioner is that Jaya Mondal obtained a sanctioned

plan from the Mahestala Municipality (for short "the

municipality") sometimes in the year 2011 for

constructing a two storied building. But after

completing the construction of the ground floor, she had

transferred the ground floor roof in favour of the

petitioner herein together with right to raise

construction on the roof of the ground floor of the said

building. The petitioner claims to have constructed the

first floor in accordance with the sanctioned plan

accorded in favour of Jaya Mondal and thereafter in the

year 2014 applied for sanction of the building plan for

raising the second storey over the roof of the first floor

of the two storied building.

The municipal authority, by the order dated

August 30,,2017 signed on September 5, 2017,

cancelled the building plan submitted by the petitioner

for raising the second storey on the ground that the writ

petitioner has suppressed the material fact of existence

of the previous sanctioned building plan; has completed

the first floor without change of name in respect of the

previous sanctioned building plan and also showed the

existing building having both floors being commercially

used whereas the real fact is otherwise.

Mr. Sengupta, learned advocate for the petitioner

contended that before according sanction of the building

plan, the municipality realised site plan fees, building

plan fees, development fees and retention fees and only

after the amount demanded by the municipality on such

account was paid, the municipality granted sanction for

construction of the second floor. He further contended

that after realising retention fees from the petitioner, the

Municipality could not have cancelled the plan in

question.

Mr. Chakraborty, learned advocate representing the

municipality draws the attention of the Court to the

impugned order dated August 30, 2017 signed on

September 5, 2017 and contended that the writ

petitioner in his application for construction of another

floor did not refer to existing sanctioned plan. He further

submitted that the writ petitioner showed the existing

building having both the floors being commercially used

whereas it appears from the previous sanctioned plan

that the ground floor was for commercial use and the

first floor was for residential use.

Mr. Chakraborty refers to the provisions laid down

under section 217 of the West Bengal Municipal Act,

1993 (for short ""the 1993 Act") to contend that if the

suppression of fact amounts to material

misrepresentation, the municipality can invoke its

power to cancel the building plan already sanctioned. As

to what would amount to fraud and mis-representation,

Mr. Chakraborty relied upon the provisions laid down

under Section 17 and 18 of the Indian Contract Act,

1872.

Mr. Chakraborty, submits that a person intending

to construct while applying for permission to make

addition or alteration of building has to indicate about

the sanctioned plan in case of any existing structure

and in support of such contention he referred to the

provisions laid down under the West Bengal Municipal

Building Rules. Mr. Chakraborty also refers to a

decision of a co-ordinate Bench of this Court in the case

of Tapan Bhattacharyya versus Kolkata Municipal

Corporation reported at 2011(5) CHN 66 to contend that

there is a difference between a mere mis-statement of

fact and deliberate material mis-representation and/or

fraudulent statement. Mr. Chakraborty concluded by

submitting that the suppression of fact and/or making

a mis-representation in the case in the case on hand

amounts to deliberate material mis-representation

and/or fraudulent statement for which municipality was

justified in cancelling the sanctioned plan.

Heard learned advocates for the parties and

perused the materials placed.

It is not in dispute that by virtue of the deed of

conveyance being no.3692 of 2012 the petitioner had a

right to construct over the roof of the ground floor of

the building. It is also not in dispute that the erstwhile

owner obtained sanctioned plan from the municipality

for constructing a two storied building thereon which

was valid till 2014. On a specific query put by the Court

to Mr. Chakraborty as to what formalities the petitioner

has to comply with for completing the construction

according to the sanction plan accorded in favour of his

vendor, Mr. Chakraborty, in his usual fairness,

submitted that he could not find out any provision

either in the 1993 Act or rules framed thereunder in

that regard for the purpose of completing construction

according to the plan sanctioned in favour of the

erstwhile owner/vendor. In the absence of any

provision either in the statute or in the rules framed

thereunder requiring the subsequent purchaser to apply

for permission for construction on the basis of the

sanction plan issued in favour of his vendor, the

petitioner could not be said to be at fault by making

construction on the basis of plan sanctioned in favour of

his vendor. It is also not the contention of the

municipality that the first floor was constructed after

the sanction plan issued in favour of the erstwhile

vendor had lapsed.

It is evident from the record that the petitioner got

his name mutated on July 6,2012 that is during the

validity period of the building plan issued in favour of

the vendor of the petitioner. The petitioner applied for

sanction of the building plan sometimes in the year

2014 for constructing the second floor over the two

storied building after he completed the construction of

the first floor.

Record reveals that municipality scrutinized the

application for sanction in details and after the same

was made ready for sanction directed the petitioner to

deposit a sum of Rs.1,27,551/- (Rupees one lakh twenty

seven thousand five hundred fifty one) only on account

of site plan fees, building plan fees, development fees

and retention fees by issuing a memo dated October 15,

2015. Though it has not been specifically stated in the

said memo as to why municipality realized retention fees

from the petitioner but in the absence of any valid

explanation from the municipality, this Court holds that

the said retention fees was charged by the municipality

from the petitioner for the purpose of retaining the

existing construction. The decision to charge retention

fees together with other fees shall be deemed to have

been taken after considering all factors relevant for

retaining the existing construction. Thus, the ground

indicated in the impugned order that the petitioner has

suppressed the fact that he has changed the mode of

user or that the earlier plan was not disclosed by the

petitioner at the time of making application for sanction

plan is of no relevance at present.

This Court is, therefore of the considered view that

the municipality after realizing the retention fees from

the petitioner as indicated in the memo dated October

15, 2015 is estopped from canceling the sanctioned plan

on the ground of alleged material mis-representation or

fraudulent statement after issuance of the Memo dated

October 15, 2015.

There is, however, no quarrel to the proposition of

law laid down by the co ordinate bench in Tapan

Bhattacharyya (supra) that there is a difference between

misstatement of fact and deliberate material mis-

representation or fraudulent statement. But the fact

remains that in the case on hand, the municipality after

accepting the retention fees from the petitioner shall be

deemed to have condoned all alleged acts of material

misrepresentation and/ or fraudulent statement, if any.

Therefore, the proposition laid down in Tapan

Bhattacharyya (supra) is of no assistance to the

Municipality in the case on hand.

    "Fraud"         defined   under        Section   17     and

"Misrepresentation"      defined under Sectio18 of the

Indian Contract Act, 1872 as relied upon by Mr.

Chakraborty is of no assistance to the petitioner in view

of the findings and observations made hereinbefore.

For the reasons as aforesaid, this Court is of the

considered view that the impugned order dated August

30, 2015 signed on September 5, 2017 is liable to be set

aside and quashed.

It would be relevant at this stage, to take note of

the fact that the plan in question, which was sanctioned

for constructing the second floor was valid till 5th

November, 2018. A stop work notice was issued on

January 19, 2017 and the plan stood cancelled by an

order of the Municipality dated September 5, 2017. The

writ petition was also pending since 2018. For such

reason, the petitioner could not construct on the basis

of the said plan.

Section 207(2) of 1993 Act permits renewal of

sanction of the building plan for a further period of

three years upon payment of prescribed fees. Since,

this Court is inclined to set aside the order canceling

the plan, the petitioner will be at liberty to apply for

renewal of the sanction building plan. However, he shall

be obliged to pay the prescribed fees therefor.

For all the reasons as aforesaid, the impugned

order dated August 30, 2017 signed on September 5,

2017 is set aside and quashed. In the event all

formalities for renewal of plan is complied with, the

Municipality shall renew the said plan as expeditiously

as possible but positively within a period of four weeks

from the date of making such application.

The writ petition accordingly stands allowed.

There shall be no order as to costs.

Urgent photostat certified copy of this judgment be

given to the parties upon compliance of all formalities.

(Hiranmay Bhattacharyya, J.