PARESH NATH BAKSI vs CALCUTTA MUNICIPAL CORPORATION

THIS complaint was originally presented by the complainants before the State Commission, West Bengal at Calcutta. But subsequently, it was transferred to the file of this Commission in view of an amendment carried out in the complaint petition by the complainants with the permission of the State Commission as a consequence of which the revised valuation put on the complaint exceeded the pecuniary jurisdiction of the State Commission.

COMPLAINANTS Nos. 1 and 2 who are husband and wife, jointly owned a plot of land within the Municipal limits of the City Corporation of Calcutta - premises No. 226, C.I.T. Road, Scheme IV M. The Opposite Party in this case is the Calcutta Municipal Corporation. The complainants had allegedly obtained sanction from the respondent Corporation -Building Sanction No. 114 (M) dated 9.2.1961 for construction of a five storeyed building on a portion of the aforesaid premises. The sanction so granted is said to have been valid for a period of five years after which it was renewable for another period of five years. It is urged in the complaint that within the initial period of validity of the sanction, the complainant could construct only three out of five storeys of the building and that therefore, they applied to the respondent - Corporation for a renewal of the building sanction for a further period of five years. The said application is said to have been made by the complainant on 31.1.1966. The grievance put forward in the complaint petition is that the respondent neglected and failed to renew the said building sanction or to take any steps whatsoever in connection therewith in spite of repeated demands made by the complainant. It is alleged that by reason of the said failure on the part of the respondent to take action to grant renewal of the building sanction the complainants have suffered a loss of income amounting to Rs. 4,14,000/- besides a capital loss of Rs.8,40,000/-representing the increase in the cost of construction that has taken place in the meantime. On this basis, the complainants have sought to recover from the respondent a sum of Rs. 12,54,000/- as compensation for the alleged negligence and deficiency in service on the part of the respondent.

A detailed counter statement has been filed by the Opposite Party the Calcutta Municipal Corporation. It is contended therein that in exercising the statutory power of granting or refusing sanction of a building or doing any other act or taking any other action in connection therewith, the Calcutta Municipal Corporation is not functioning as a provider of any service for consideration as mentioned in the Consumer Protection Act. The complainant cannot, therefore, be regarded as ''consumers'' entitled to invoke the remedies provided under the said Act. Extensive reference has been made before us to the provisions of the Calcutta Municipal Act, 1951 which was in force at the relevant time and which has later been substituted by the Calcutta Municipal Corporation Act, 1980 which contains substantially the same provisions as existed in the repealed enactment with respective regulations of building activity. The respondent has denied that the complainants had made any application for renewal of Building Sanction No. 114(M) which was granted to them on 9.2.1961. It is averred in the counter affidavit that "the question of consideration of renewal petition of the B.S. Plan did not arise at all as the present office records reveal that no such petition was ever submitted by the petitioners as claimed. Records show neither any petition nor any subsequent request ever received by the respondent after the sanction of B.S. No. 114 (M) of 9.2.1961. On the contary, the petitioner violated the conditions of sanction and made unauthorised construction without sanction and deviated from the said sanction and two separate demolition cases were instituted as will be seen from the Index cards maintained vide (i) 2-D of 1973-74 and (ii) 17/D of 1978-79. Both the cases were instituted under Sections 416 and 414 C.M.C. Act, 1951. Xerox copies of the index cards are annexed as Annexures ''A'' and ''B''.

IT is further averred in the original counter-statement filed by the respondent before the State Commission, Calcutta in this case on 14th February, 1991 which forms part of the record before us that the complainants instituted a T/ Suits No. 1944 of 1986 against the respondent herein and others in respect of the same subject matter and they also filed a Writ Petition under Article 226 of the Constitution before the High Court of Calcutta which was numbered as Civil Rule No, 5363 (W) of 1980 and the said Writ Petition was disposed of by the Calcutta High Court by its order dated 4.7.1985 directing that any request for renewal made by the complainants should be disposed of within three months after due consideration. However, since no request for renewal was actually made, the question of considering the same did not arise. It would appear from the counter-statement that the complainants thereafter filed another Suit T/S No. 1026 of 1986 against the respondent with respect to the demolition case taken against them under Section 414 of the Calcutta Municipal Act, 1951 and the said case which had originally been disposed of ex-parte is now pending before the 7th Bench of the City Civil Court, Calcutta. After narrating the aforesaid facts, the respondent has contended that, in any event, the approach made by the complainants seeking relief under the Consumer Protection Act is highly belated and the present proceedings are barred by limitation.

THE 1st complainant appeared before us in person and made his oral submission. Thereafter he was also permitted to file written arguments in supplementation of the oral submission made by him. The Calcutta Municipal Corporation was represented by Shri L.C. Agarwala, Advocate.

WE have carefully considered the oral and written submissions of the complainants and also the arguments presented before us by the Counsel for the Calcutta Municipal Coporation. In our opinion, this complaint petition is liable to be rejected on the preliminary ground that the complainants are not ''consumers'' as defined in the Consumer Protection Act and the cause of action on which the complaint has been based is clearly barred by limitation.

WE have carefully gone through the provisions of the Calcutta Municipal Act, 1951 and also the Calcutta Municipal Corporation Act, 1980 which replaced the former enactment. The application for grant of Building Sanction was made to the respondent and the sanction dated 9.2.1961 was given to them, by the respondent during the period when the Calcutta Municipal Corporation Act, 1951 was enforced. Chapter XXII of the said Act contains Sections 376 to 392 which confer power on the Municipal Corporation to regulate the use of premises situated within the Corporation limits for the erection of new buildings or for effecting alterations of existing buildings as also for sanctioning change of user of buildings etc. From a perusal of these provisions it becomes manifest that these powers have been conferred by the legislature on the Corporation in public interest and are expected to be exercised by it only for the purpose of regulating building activity within the local limits of the Municipal Corporation with a view to ensure orderly growth of new buildings in a manner consistent with the requirements of safety, health, hygiene, sanitation and the street alignment or building lines of a public street specified under Section 63 of the Calcutta Improvement Act, 1911 in conformity with the City Improvement and Development Plan so as to prevent haphazard growth of structures. These regulations are enforced by the Corporation by system of regulation of building activity by a process of grant or refusal of building sanction. We have no doubt in our minds that in exercising this power of regulation of building activity, the Corporation is only discharging its statutory function under the Act and it is not performing a ''service'' as defined in the Consumer Protection Act as quid pro quo for the consideration consisting of the fee charged by it on the application for sanction. In our opinion the fee paid for the building sanction is not by way of consideration for service but it is only a statutory levy for meeting the expenses of administration and enforcement of the regulatory machinery set up under statutory provisions and rules governing the regulation of building construction activity in the larger public interest. The approach made by the complainants seeking relief from this Commission under the Consumer Protection Act is, therefore, manifestly misconceived and the complaint petition is liable to be dismissed on the ground that it is not maintainable under the Act. The Municipal Corporation is not performing any service which has been hired for consideration by the applicants for the building sanction.

FROM the facts set out in the counter-statement, the correctness of which we see no reason to doubt the allegation of the complainants that they had made an application for renewal of the building sanction in January, 1966 and there was failure on the part of the Municipal Corporation to take any action on the said application cannot be accepted as true. Further in respect of substantially the same grievance the complainants are seen to have approached the High Court of Calcutta in the year 1980 by filing a Writ Petition and the High Court passed its orders thereon on 4.7.1085. This complaint petition which was originally instituted in the State Commission, West Bengal as Case No. S.C. 28 of 1990 was filed only in the year 1990 by which time the cause of action, if any, of the complainant had long since become time barred. In the light of what is stated above, we dismiss the complaint petition with costs which we fix at Rs. 5,000/-.