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Judgment
N.K. Batabyal, J.—The writ petitioner is the owner of premises No. 67 R.N. Tagore Road, Ward No. 12 of Khardah under Panihati Municipality. She obtained a building plan sanctioned on 28.1.91 for construction of a four-storeyed building providing two years time for completion of the building. The building; was constructed upto the second storey but due to unavoidable circumstances it could not be completed in time. Hence the petitioner made a prayer for renewal of the plan. Renewal fee of Ruppes 200/- as demanded was paid. But the Municipality did not renew the sanctioned plan dated 28.1.91 claiming Ruppes 1,31,614/- as development charges without any basis. According to the petitioner, when renewal has been agreed upon, then the renewal has to be granted as otherwise the petitioner would suffer loss of thousands of rupees. The petitioner demanded justice through her advocate but to no effect. Hence, the writ petitioner has come before this Court for a writ of mandamus directing the respondents to grant renewal of the Sanctioned Building Plan and a writ of certiorari quashing the demand for development charges. In the affidavit-in-opposition on behalf of Respondent Nos. 1, 2 and 5 the material allegations made in the writ petition except what are matters of record have been denied. It is not disputed that the writ petition is the owner of holding No. 67 R.N. Tagore Road, Panihati Municipality or that the obtained a sanctioned plan on 28.1.91 and that she failed to construct the building, without two years. So, the plan expired on 27.1.93. She made another application for renewal of the sanction of the said plan. She deposited Rs. 200/- as cost of sanction fee but she failed to deposit Rs. 1,31,614- as development charges which was levied under the provisions of W.B. Town & Country (Planning &. Development) Act 1979. It has been further stated that ii the writ-petitioner was dissatisfied with the order of assessment of the Development Charges, there was a provision for appeal under Sec. 105 of W.B.T. & C(P&D) Act, 197& So the writ petition is not maintainable, it has been asserted that the demand for development charge is legal, bonafide and justified and the writ petition should be rejected.
Annexure - ''A'' to the writ-petition shows that the petitioner was requested to deposit Rs. 200/- as fees for granting permission by the Municipality. In the last line, in a cryptic way, the petitioner was informed of "D.C. Rs. 1,31,614/-". It appears from annexure - ''N'' (page 23) of the affidavit-in-opposition that the matter has been fully explained and the petitioner has been asked to deposit Rs. 1,31,614/- as Development charge within a specified time.
It has been argued by Mr. Das Gupta, ld. advocate for the writ petitioner that in the matter of sanctioning or renewing a sanctioned plan in areas coming under the provisions of the B.M. Act. The provisions of the W.B.T. & C (T & D) Act, 1979, can''t override the provision of the B.M. Act, 1932 in this respect.
Mr. Dutta, Id. Sr. Standing Counsel appearing or behalf of the Municipality has submitted that there is no substarce in the legal contention of Mr. Dasgupta, Mr. Dutta after drawing the attention of the Court to several provisions of the W.B.T. & C (P & D) Act, 1979 has relied upon the principles laid down in the Division Bench decision of this Court in Executive Officer, Digha Planning Authority Vs. M/s. Hotel Sea Gull and others,
Section 137(1) of the W.B.T. & C (P & D Act 1979 gives overriding effect in the provisions of the Act The two sub-sections of the Section clearly explore the limits of the non-obstance clause in the first sub-section. The expression Development has been defined in Sec. 2(7) in the following manner :-
Development" with its grammatical variations means the carrying out of the building, engineering mining or other operations, in, on, over or under land or the making of any material change in any building or land or in the use of any building or land and includes division of any land.
The term "building operation" under Sec. 2(3) of the Act includes inter alia, the following :-
a) erection or re-erection of a building or any part of it,
b) roofing or re-roofing of a building or any part of a building or an open space,
c) any material alteration or enlargement of any building,
d) any alteration of a building as is likely to affect an alteration of its drainage or sanitary arrangements or materially effect its structural stability and;
e) construction of a door opening on any street or land not belonging to the owner of a building.
It is clear from above that the renewal plan for two more floors in the instant case amounts to "development" as defined in Sec 2(7) as it involves material alteration or enlargement of the building. u/s 46(1) of the Act of 1979 "any person or body............... intending to carry out any development on any land shall make an application in writing to the Planning Authority or Development Authority for permission in such form containing such particulars and accompanied by such documents and plans as may be prescribed". The application for reconstruction of masonry building (Ex-Sanction No. 732 dt 28.1.91) made by the petitioner is annex.-''M'' (page 20C of the A.C.) filed by the Municipality Respondent.
Development Authority u/s 2(8) of the Act of 1979 means a Development Authority constituted under the Act and includes Calcutta Metropolitan Development Authority as referred to in Sec. 17 of the Act. Under Sec. 17, the Calcutta Metropolitan Development Authority (C.M.D.A.) shall be deemed to be a Development Authority for the purposes of the Act. Under Sec. 134 of the Act, any Development Authority may by a resolution, direct that any power exercisable by it under the Act or Rules fit Regulations made thereunder (except the power to prepare any development plan or scheme or to make regulations) may also be exercised by any local authority or any officer of the State Govt. or any officer of the Planning Authority, Development Authority or local authority as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein.
In the instant case, the Chief Executive Officer of the CMDA as per Notification under Sec. 134 of W.B. Act 13 of 1979 (W.B.T. & C (P & D) Act), delegated the power u/s 46 to the local authorities within their respective Jurisdictions in the schedule to that notification for receiving application for permission under Sec. 46(1) in respect of the area under their respective jurisdictions and dispose of the same in the manner indicated in sub-section (2),(3) and (4) of Sec. 46 (vide Annex ''O'' at page 25 of the A.O.). The name of Panihati Municipality appears in the schedule and it is authorised to receive and dispose of an application under Sec. 46(1) of the Act.
Under Sec 102 of the Act, the Development Authority, with the previous sanction of the State Govt., shall levy, by a notification in the Official Gazette, a charge called Development Charge for carrying out development or change of use of land, at a rate not exceeding those specified in Sec. 103.
The ld. Sr. Standing Counsel has drawn the attention of the Court to annex.-''p'' (page 31 of the A.O.) which is a xerox of certified true copy of the proceedings of the Meeting of the Commissioners of Panihati Municipality held on 28.8.92. From item A 1 of the proceedings it is found as follows :-
A-1. To consider and approve collection of development charges for sanctioning building plan etc. as provided in the Act.
Approved unanimously with slight modification i.e., development charges for sanctioning building plans etc. should be collected from all institutions excepting only the one-storeyed residential building having carpet area not more than 500 sq. ft. The rates of charges should be levied as per law. The decision be enforced immediately.
Mr. Dutta, Ld. Sr. Standing Counsel has also drew the attention of the Court to annex.-''F (page 32 of the A.O.). This is Office Order No. 787 dt. 1.9.92. This Order issued by the Chairman recites the graded development fees for sanctioning building plans for various uses and erection or re-erection of buildings or work etc.
But unfortunately, Mr. Dutta, ld. Sr. Standing Counsel has not been able to produce before this Court any Gazette notification as required under Sec. 102 of the W.B.T. & C (P & D) Act. That notification is the pre-condition for levying charge. Therefore, it must be said that the Panihati Municipality has tried to levy a charge in this particular case without complying with the essential requirements of law.
This is sufficient to dispose of the matter but a few words need be said about the merits of the contention of Mr. Das Gupta that the governing fact in the matter of sanctioning or renewing a sanctioned plan in this case are the provisions of the B.M. Act, 1932. On this point, Mr. Dutta, ld. Sr. Standing Counsel has cited the decision reported in Executive Officer, Digha Planning Authority v. Hotel Sea Gull (supra). That is a Divn. Bench of this Court. In that case, it has been laid down that clause (b) of Sub.-sec. (2) of Section 137 clearly provides that any development carried out only by obtaining permission, approval or sanction for such development under any other law shall no: be deemed to be law fully undertaken or carried out when permission for such development has not been obtained under the relevant provisions of W.B. T & C(P & D) Act, 1979. In that case, it has been further held that the provisions u/s 46 would apply even in the absence of Development Plan. Nothing has been placed before the Court to show that the law laid down in the cited case is no longer good law. This Court has no reason to distinguish that case from the case in hand. So the contention of Mr. Das Gupta can not be entertained.
Mr. Das Gupta, Id. Advocate has cited the two following reported decisions in support of his contention that without giving his client an opportunity of being heard, the Municipality can''t levy the Development Charge. The first case is Amar Singh and Others Vs. State of Rajasthan and Others, In that case, the petitioners filed the writ-petition alleging therein that the order of the Supdt. Engineer, Irrigation Circle, Shri Ganganagar passed on 19.10.91 was per se illegal and without jurisdiction as it had been passed without giving an opportunity of being heard under Sub-rule (3) of Rule 11 of the Rajasthan Irrigation & Drainage Rules 1995. Held, a material charge in the out-let had been introduced without affording an opportunity of being heard while under Statutory Rules and Principles of natural justice, the petitioners were entitled to notice about material alterations in the out-let.
In that case, there was a Statutory Rule enjoining upon the authority to give a hearing in case of material charge in the out-let of water. Moreover, a privilege which was already enjoyed was going to be taken away without the party getting an opportunity of being heard. In the case at hand, there is a Statutory provision under Sec. 104(2) & (3) of the W.B.T. & C(P&D) Act, 1979, to give an opportunity of being heard. It should not be forgotten that the Statute in the present case has also set up art appellate forum to judge the decision of the first tier of authority.
The Municipality has not been able to show that any such opportunity of being heard was given. In the second case cited by Mr. Das Gupta, i.e., in Ambala Urban Estate Welfare Society Vs. Haryana Urban Development Authority and another, the Urban Devpt. Authority had sold plots in a sector with a promise that the purchasers would be provided with all modern amenities and the price of the plots was also fixed after faking into consideration the costs for providing amenities. The residents of the locality were denied the amenities. They approached the High Court for compelling the authority to honour its promise. The authority was directed to provide the basic amenities like drainage, sewage, adequate potable water, perks within one year so that the rights to life as guaranteed under the Constitution does not become illusory.
With respect, it must be held that the ratio laid down in the second case cited above has nothing to do with the question of law involved in our case. In the Haryana case, there was contractual obligation to provide certain facidlities. These were not given. In our case, there is no obligation that the development charge can''t be levied unless there is Development Plan. The decision of the Division Bench of our High Court in Ex-Officer, Digha Planning Authority (supra) lays down that it not necessary. So this Court cannot accept the contention of Mr. Das Gupta, so far as the second case cited by him is concerned. But his contention in regard to the first case is upheld.
Mr. Dutta, ld. Sr. Standing Counsel has raised an important legal question about the maintainability of the writ-petition in view of Sec. 105 of the W.B.T. & C(P & D) Act, 1979. Mr. Dutta has submitted that when there is a provision for appeal against the order of assessment of development charge, the writ petition does not lie. This contention of Mr. Dutta cannot be accepted simply on the ground that the writ-petitioner has come with the allegation, that the authority acted without jurisdiction. In view of such allegations in the writ-petition, it lies. Moreover, there is no such general proposition that simply because there is an alternative remedy, therefore, the writ petition can''t lie. (State of U.P. v. Indian Hume ''Pipe Co., AIR 1977, SC 1152). As a result, this Court can''t accept the contention of Mr. Dutta, ld. Counsel regarding maintainability of the writ-petition. In view of the discussion made above, the writ petition succeeds. It is accordingly allowed. The demand of Rs. 1,31,614/- on account of Development Charge, made by the Municipality, as contained in the last line of annexure-''A'' to the writ petition is quashed. The Respondent-Municipality will dispose of the application made u/s 104(1) of W.B.T. & C (P & D) Act, 1979, as per annexure - ''M'' to the affidavit in-opposition within three months from date, in accordance with law In the circumstances of the case no order is made as to costs.