w w w . L a w y e r S e r v i c e s . i n



M/s. Rose Valley Real Estates And Constructions Ltd. v/s State of Tripura & Others

    WP (C) 465 of 2010

    Decided On, 10 September 2012

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE S.C. DAS

    For the Petitioner: A.K. Bhowmik, Sr.Advocate, Somik Deb, B. Datta, Advocates. For the Respondents: Advocate General, S.M. Chakraborty, Sr.Advocate, S. Chakraborty, Addl. GA, A. Ghosh, K.K. Pal, R. Guha, Advocates.



Judgment Text

S.C. Das, J.

(1) By this writ petition under Article 226 of the Constitution of India, the petitioner inter alia, prayed for directing the respondents to issue occupancy certificate for the occupation of G + 5 storied building constructed at Shakuntala Road, Agartala along with formal approval/permission of the building plan in favour of the petitioner.

(2) Case of the Petitioner: 2. 1 The petitioner, inter alia, stated in the writ petition as well as in the re-joinder affidavits dated 16. 03. 2012 and 15. 06. 2012 that the petitioner is a Company of repute and carrying on the business of Real Estate and Construction, all over the country including the State of Tripura. To set up a well equipped office, they purchased a plot of land at Shakuntala Road, Agartala within Agartala Municipal Council (for short, AMC) vide Sale-deed dated 19. 01. 2006, for the purpose of constructing a G+5 storied building thereon to accommodate their office purpose. After purchase of the land, they prepared a building plan, through an organization, namely Creative Forum Private Ltd. , an authorized commissioned architect of Agartala Municipal Council and submitted the building plan to the AMC on 24. 04. 2006, with a request to accord permission thereto. AMC duly received the same but did neither approve nor reject the plan as submitted by the petitioner and was sitting over it. According to the provision prescribed under Section 125 of the Tripura Municipal Act,1994 (for short, Municipal Act), the AMC was either to approve or reject the plan within 60 days from the date of submission of the plan failing which, it shall be deemed to have been approved by the Municipality. It is the further case of the petitioner, that they also made an appeal on 21. 11. 2006 to the Chairman of the Municipality under Rule 23 of the Tripura Building Rules,2004 (for short, Rules of 2004) but no order was passed by the Chairman of the Municipality on such appeal. The Chairman was supposed to dispose the appeal within 30 days but that was not done. Since after repeated persuasion no response was received, the petitioner started construction as per the plan submitted to the Municipality presuming that the plan had been approved.

2. 2. While the construction was in substantial progress, the petitioner received letter dated 24. 04. 2007 from the Assessor of Municipality (Annexure 4 to the writ petition) to take the following 3 steps to remove the defects:-

1. "parking provisions space should be shown minimum 39 nos of vehicles.

2. Rain water harvesting is mandatory for this construction as per Section 110 and Section 111 to be followed for insurance of the construction;

(3) Area calculated and shown in the drawing is not proper. "

2. 3 In response to that letter, the petitioner requested the Municipality by writing letter dated 26. 04. 2007 (Annexure-5 to the writ petition) that the petitioner will use the building as office and there will be no requirement of 39 nos. of car space and that, the petitioner may be allowed to have parking provision of 27 cars and to approve the plan. The petitioner complied with the requirement Nos. 2 and 3 as per letter dated 24. 04. 2007. Thereafter, by a letter dated 20. 11. 2007 with an enclosed copy of memorandum for the council of ministers dated 12. 09. 2007 (Annexure 7 to the writ petition), the petitioner was asked to submit technical clearance from some recognized institutions. Jadavpur University was also recognized by the AMC as such an institution, for according technical clearance. Accordingly, as approved by the Municipality, vide its letter dated 08. 01. 2010 (Annexure-8 to the writ petition), the petitioner obtained technical clearance from Jadavpur University and submitted the same to the Municipality along with letter dated 26. 08. 2009. Prior to the submission of the technical clearance from Jadavpur University, respondent No. 4, chief Executive Officer (CEO) of Municipality submitted a detailed report to the respondent No. 2 by a letter dated 22. 03. 2010 observing that the petitioner substantially complied with all the directions. Copy of that letter dated 22. 03. 2010 has been annexed as annexure-13. It was thereafter observed that the petitioner had been occupying a portion of the government land in the eastern part of their jote land, by the side of the road and there was a joint measurement of the same and the petitioner agreed to demolish the construction made thereon and accordingly, vacated the same whereon the boundary wall etc. were constructed.

2. 4. The petitioner contended that they purchased the land from their predecessors who were in occupation of the land by the side of the road, after the drain, which was govt. khas land and since the petitioner got the land in their possession, they constructed their boundary wall and they also made a proposal that the said land may be disposed of in their favour on payment basis, as per rules ,but since that was not agreed upon, the petitioner had agreed to vacate the said land and ultimately vacated the same. Regarding car space, the petitioner stated that for office purpose they only require accommodation of 6 to 8 vehicles, however, according to the specification as required, they arranged accommodation for the car spaces and thereafter requested the Municipality to accord approval for occupation of the building which was completed in the year 2008. The petitioner was further asked by the Municipality as directed by respondent No. 2, to submit up-to-date technical report from Jadavpur University and accordingly, the petitioner obtained a fresh technical report from Jadavpur University dated March,23, 2010 and submitted the same to the Municipality for according approval, but to their surprise, while they were expecting an approval, the respondent Municipality by a letter dated 13. 09. 2010 (Annexure-18 to the writ petition) directed the petitioner not to occupy the building, unless occupancy certificate is issued by the competent authority. The petitioner, therefore, prayed for following relief:-

(i) It is , therefore, prayed that this Hon'ble Court would graciously be pleased to admit the petition of the petitioners, call for the records relevant to the subject matter, issue writ directing the respondents and/or each of them to give the petitioner occupancy certificate for occupation of the G+5 storied building along with the building permission without any further delay;

AND/or (ii) Issue writ directing the respondents and/or each of them to exempt the provision of car parking to the extent of 31 as indicated in the letter of the Chief Executive Officer, Agartala Municipal Council under No. F. 52/8c/amc/06/330-31 dated 18. 05. 2010 and also to give approval for G+5 storied building of the petitioner situated at Sakuntala Road, Agartala forthwith; AND/or

(iii) Issue writ directing the respondents or each of them to allow the petitioner to use the G+5 storied building as the office of the petitioner without any impediment whatsoever subject to settlement over the issue of land in excess:"2. 5. It is further contended by the petitioner that in the course of hearing of the writ petition, on hearing learned counsel of both side, several orders were passed and it was found that the issues remained for decision were only in respect of space of 31 car parking and vacating the govt. land in the front side of the building by the side of the road, after the drain, and as per commitment made before the court, the petitioner already vacated the khas land and has also shown 31 parking space with negligible deviation. The construction of building was complete in the year 2008 and all those requirements, what was demanded by the respondents, was subsequent to the construction was over. There was no structural defect identified in the construction. It was constructed scientifically following all norms of standards of construction and the rules therefor and therefore, there was no reason for the respondents in withholding the occupation certificate of the building. The petitioner after spending huge sum constructed the building and by withholding the occupancy certificate, the respondents, put the petitioner in huge loss and harassment.

3. Case of Respondent Nos. 1 and 2: 3. 1 Respondent Nos. 1 and 2 submitted a joint affidavit in opposition on 24. 11. 2010 and thereafter also submitted 4 additional counter affidavits on different dates i. e. 07. 07. 2011, 01. 09. 2011,20. 09. 2011 and 29. 09. 2011. The respondents, inter alia, contended that the petitioner submitted the building plan without observing the procedure prescribed there-for and that the petitioner withheld the provisions of Rules 13,16,17 etc. of the Building Rules. It was further contended that the petitioner occupied a portion of the Govt. land and also did not arrange the spaces for 31 car parking and therefore, they are not entitled to get occupancy certificate from the Municipality.

(4) Case of Respondent Nos. 3 and 4:

4. 1 Respondent Nos. 3 and 4 contended that the petitioner submitted the building plan on 24. 04. 2006 but it was not through a Licentiate Building Planner as required under Rules 16 and 17 of the Building Rules. It was also contended by the respondents that by letter dated 14. 04. 2007 (Annexure 4 to the writ petition), the Assessor of the Agartala Municipality, asked the petitioner to arrange the spaces of 39 car parking but subsequently as per the revised plan and opinion of Jadavpur University, the petitioner was supposed to arrange the spaces of 31 nos. of car parking, but the petitioner failed to make such arrangement. The plot of land occupied by the petitioner was measuring 14976. 30 Sq. ft. but on a measurement it was found that the petitioner was occupying an area of about 751 Sq. ft. of the govt. land and therefore, the petitioner was asked to vacate the land. Petitioner tried to justify their occupation of the land saying that they got the possession from their vendor M/s Planters Air Ways Ltd. and requested the respondents to obtain an undertaking from them that in the event of any requirement of the said land for any development work, they will shift the boundary wall and make necessary changes in the light of letter dated 18. 05. 2010 of CEO of Agartala Municipality. They have, thereby admitted the defects as pointed out in the said letter of the CEO dated 18. 05. 2010. A joint survey was made subsequently and it was found that an area of 437 Sq. ft. of khas land were in occupation of the petitioner and the petitioner expressed their readiness to purchase the same or to take the same in lease from the Govt. as per prevailing rules. The petitioner also contended that they will require only 6 to 8 nos. car spaces and requested the Municipality to accord approval for occupying the building. It was also submitted on behalf of the respondents that pursuant to orders passed by this court, a joint verification was made and it was found that the petitioner already vacated land measuring 460 Sq. ft. from the encroached govt. land, when the actual quantum of encroached land was 437 Sq. ft. and they have arranged 31 nos. of car parking spaces , but the parking spaces did not match as per the plan.

(5) Heard learned Sr. Counsel, Mr. A. K. Bhowmik assisted by learned counsel, Mr. B. Dutta as well as learned counsel, mr. Somik Deb for the petitioner.

(6) Also heard learned counsel, Ms. R. Guha for the respondent Nos. 1 and 2 (State respondents) and learned Sr. counsel, Mr. S. M. Chakraborty assisted by learned counsel, Mr. K. K. Pal for respondent Nos. 3 and 4 (Agartala Municipality).

(7) Submission of the counsel of petitioner:

7. 1 It was contended by learned counsel of the petitioner that the building plan was submitted through an authorized building planner of the Agartala Municipality namely Creative Forum Pvt. Ltd. consisting of persons with technical qualifications and there was no defect in the technical specification of the building. As per provisions of Section 125 of the Act, the Municipality was supposed to either approve or reject the plan within 60 days from the date of submission of the plan but even after persuasion, the Municipality did neither approved nor rejected the plan and on expiry of 60 days, the petitioner was legitimately entitled to proceed with the construction deeming approval of the plan. The petitioner also filed an appeal under Rule 23 of the Building Rules but that was also not disposed of by the Chairman of the Municipality as required by law within 30 days. After one year of the submission of the building plan, by letter dated 24. 04. 2007 the respondent Municipality made its first communication to the petitioner asking to remove some three defects. The petitioner immediately responded to the requirements. Referring to the Annexure-7 to the writ petition , it was contended by the learned counsel of the petitioner that respondent Nos. 1 and 2 introduced submission of technical clearance from an authorized agency contending that it was as per a decision of the council of ministers on 12. 09. 2007. It was submitted that no such decision of the council of ministers placed on record and that there was no authority of the State respondents to introduce such a new scheme dehors the provisions of the Act and Rules. Asking for a technical clearance was absolutely beyond the prescription of the Rules but , however, the petitioner complied with it. Even after all compliance as per Rules, the petitioner was not allowed to occupy the building and therefore, the petitioner approached this court by filing this writ petition. In the course of hearing of the case, learned counsel contended, the issues were minimized and it was found that only the issue of 31 car spaces and the issue of vacating the govt. khas land in front of the building was in controversy which was resolved but still the respondents, though made commitment before this court, withheld the occupancy certificate. Learned counsel, therefore, prayed for issuing necessary direction to the respondents.

In support of the petitioner's contention learned counsel referred the following case laws :-

(i) Live Oak Resort (P) Ltd. and Anr. Vs. Panchgani Hill Station Municipal Council and Anr. (2001) 8 SCC 329;

(ii) Universal Pipes (P) Ltd. Vs. State of Assam and Ors 2011 (3) GLR 501;

(iii) AIR 1986 SC 372; (iv) (1992) 4 SCC,97;

(v) (1998) 5 SCC 637; (vi) (2003) 5 SCC 480: Rajasthan Public Service Commission Vs. Harish Kumar Purohit and Ors.

(vii) Santlal Gupta Vs. Modern Co-operative Group Housing Society Ltd. and Ors. (2010) 13 SCC 336;

(viii) Friends Colony Development Committee Vs. State of Orissa, (2004) 8 SCC, 733;

(ix) Mohinder Singh Gill Vs. Chief Election Commissioner (1978) 1 SCC 405;(x) Karnataka Rare Earth and Anr. Vs. Sr. Geologist, Department of Mines and Geology and Anr. (2004) 2 SCC, 783;

(xi) (2004) 6 SCC, 465: State of Punjab Vs. Nestle India Ltd.

(8) Submission of the counsel of State Respondents (R-1and 2):

8. 1 Appearing on behalf of the State respondent Nos. 1 and 2, learned counsel, Ms. R. Guha made a strenuous argument pointing out the provisions of Rules 13, 16,17, 50,51 etc. and contended that the petitioner was guilty of non compliance of the statutory provisions of Building Rules and the construction was extremely hazardous and therefore, occupancy certificate cannot be given to the petitioner. She had contended that mere submission of the building plan even if no response was given by the Municipality, did not authorize the petitioner to construct a hazardous building devoid of the provision prescribed in the Rules. Referring to the 4 (four) additional affidavits, filed on behalf of the State respondents time to time, she had contended that the petitioner was found occupying govt. land in front of the building and a portion of the govt. land was/is still in occupation of the petitioner but she admitted that a similar portion belonged to the petitioner's jote land had already been vacated which was slightly more than the land in occupation of the petitioner. She had contended that the petitioner had no authority to occupy an inch of the govt. land and so long the petitioner would be found in occupation of the govt. land, the building plan could not be approved and the petitioner could not be allowed to occupy the same. She had also submitted that the petitioner was supposed to make a clear space of 31 car parking, for such a huge high rise building, but the petitioner could not arrange it and what was reported by the Joint Inspection Committee, regarding space of 31 car parking, was not according to the revised plan submitted by the petitioner. Her further contention was that, the petitioner submitted the plan for construction on 24. 04. 2006 but thereafter the petitioner made changes and submitted revised plans on 8 (eight) occasions and so, the prayer of the petitioner cannot be acceded to. Learned counsel, Ms. Guha referred a bundle of case laws in support of the case of the respondent Nos. 1 and 2. Those are

(i) Sheodhari Prasad Sah Vs. State of Bihar and Ors. : AIR 1990 Patna 196;

(ii) Indian Council for Enviro-Legal Action Vs. Union of India; (2011) 8 SCC 161;

(iii) Hameed Joharan Vs. Abdul Salam; (2001) 7 SCC 573;

(iv) Central Bank of India v. Ravindra, (2002) 1 SCC 367;

(v) Periyar and Pareekanni Rubber Ltd. Vs. State of Kerala, (1991) 4 SCC 195, at page 208;

(vi) State of Mysore Vs. K. N. Chandra-sekhara: AIR 1965 SC 532;

(vii) Shanti Sports Club Vs. Union of India; (2009) 15 SCC 705;

(viii) Ashok Kumar Maheshwari (Dr) Vs. State of U. P. : (1998) 2 SCC 502;

(ix) State of Arunachal Pradesh Vs. Nezone Law House, Assam: (2008) 5 SCC 609;(x) Arun Kumar Vs. Union of India: (2007) 5 SCC 580, at page 591;

(xi) B. N. Nagarajan Vs. State of Karnataka: (1979) 4 SCC 507;

(xii) Ritesh tewari Vs. State of U. P. : (2010) 10 SCC 677;at page 684;

(xiii) Joseph M. Puthussery Vs. T. S. John, (2011) 1 SCC 503, at page 523;

(xiv) M. I. Builders (P) Ltd. Vs. Radhey Shyam Sahu, (1999) 6 SCC 464, at page 529;

(xv) S. P. Chengalavaraya Naidu Vs. Jagannath, (1994) 1 SCC 1;

(xvi) Konda Lakshmana Bapuji Vs. Govt. of A. P. , (2002) 3 SCC 258;

(xvii) Mandal Revenue Officer Vs. Goundla Venkaiha, (2010) 2 SCC 461;

(xviii) Olga Tellis Vs. Bombay Municipal Corpn. , (1985) 3 SCC 545, at page 579;

(xix) Ahmedabad Municipal Corpn. Vs. Nawab Khan Gulab Khan, (1997) 11 SCC 121, at page 129;

(xx) Milk Producers Association Vs. State of Orissa, (2006) 3 SCC 229, at page 241;

(xxi) Chairman, Indore Vikas Pradihikaran Vs. Pure Industrial Code and Chemicals Ltd. , (2007) 8 SCC 705;(xxii) Dev Sharan Vs. State of U. P. , (2011) 4 SCC 769, at page 775;

(xxiii) Calcutta Municipal Corpn. Vs. Anil Ratan Banerjee, 1995 Supp (2) SCC 56, at page 61(xxiv) Rikhabsao Nathusao Jain Vs. Corporation of the Cite of Nagpur: (2009) 1 SCC 240, at page 251;

(xxv) Commissioner of Municipal Corporation, Shimla Vs. Prem Lata Sood, (2007) 11 SCC 40, at page 55;(xxvi) New Delhi Municipal Council Vs. Tanvi Trading and Credit Private Limited: (2008) 8 SCC 765, at page 778 (3-Judge Bench);

(xxvii) Lake Development Authority Vs. Heena Khan, (2011) 4 SCC 392, at page 393;

(xxviii) Priyanka Estates International Private Limited Vs. State of Assam, (2010) 2 SCC 27, at page 38;

(xxix) National Insurance Company Limited Vs. Rattani, (2009) 2 SCC 75, at page 79;

(xxx) Gautam Sarup Vs. Leela Jetly, (2008) 7 SCC 85, at page 89;

(xxxi) Ram Kanai Jamini Ranjan Pal (P) Ltd. Vs. Member, Board of Revenue, (1976) 3 SCC 369, at page 374;(xxxii) State of Orissa Vs. Titaghur Paper Mills Co. Ltd. ,1985 Supp SCC 280, at page 375;

(xxxiii) Rastriya Ispat Nigam Ltd. Vs. Verma Transport Co. , (2006) 7 SCC 275, at page 290 ;

(xxxiv) S. P. Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1, at page 4;

(xxxv) Priyanka Estates International Private Limited Vs. State of Assam, (2010) 2 SCC 27, at page 40;

(xxxvi) Mahendra Baburao Mahadik Vs. Subhash Krishna Kanitkar: (2005) 4 SCC 99, at page 115;

(xxxvii) Paradise Printers Vs. Union Territory of Chandigarh: (1988) 1 SCC 440, at page 448;

(xxxviii) Vasantkumar Radhakisan Vora Vs. Board of Trustees of the Port of Bombay: (1991) 1 SCC 761, at page 776;

(xxxix) Home Secy. , U. T. of Chandigarh Vs. Darshjit Singh Grewal, (1993) 4 SCC 25, at page 36;

(xl) I. T. C. Bhadrachalam Paperboards Vs. Mandal Revenue Officer, (1996) 6 SCC 634, at page 658;

(xli) Union Territory Vs. Managing Society, Goswami, gdsdc, (1996) 7 SCC 665, at page 666;

(xlii) Jalandhar Improvement Trust Vs. Sampuran Singh, (1999) 3 SCC 494, at page 499;

(xliii) Raja Ram Mahadev Paranjype Vs. Aba Maruti Mali, AIR 1962 SC 753;(xliv) Sandur Manganese and Iron Ores Ltd. Vs. State of Karnataka, (2010) 13 SCC1, at page 37;

(xlv) Sarva Shramik Sanghatana (KV), Mumbai Vs. State of Maharashtra, (2008) 1 SCC 494, at page 500;

(xlvi) Deepak Theatre Vs. State of Punjab,1992 Supp (1) SCC 684, at page 687;

(xlvii) General Officer Commanding-in-Chief Vs. Subhash Chandra Yadav, (1988) 2 SCC 351,at page 357;

(xlviii) Pune Municipal Corpn. Vs. Promoters and Builders Assn. , (2004) 10 SCC 796, at page 800;

(xlix) Bangalore Development Authority Vs. R. Hanumaiah, (2005) 12 SCC 508, at page 527;

(l) State of West Bengal Vs. Subhas Kumar Chatterjee, (2010) 11 SCC 694, at page 701;

(li) Indian Express Newspapers Vs. Union of India, (1985) 1 SCC 641, at page 687;

(lii) Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732, at page 743;

(liii) Secretary, Ministry of Defence Vs. A. V. Damodaran, (2009) 9 SCC 140 at page147.

(9) Submission of the counsel of Munici-pality (R-3 and 4):

9. 1 Learned Senior counsel, Mr. S. M. Chakraborty appearing on behalf of the Municipality had submitted that the petitioner was not in clean hand from the very beginning and was not supposed to be in such a hurry to take up construction, while according to the provisions prescribed by law, approval of the State Govt. was necessary for according approval to the building plan. It was contended by Mr. Chakraborty that the bundle of writ petition, rejoinders thereto, bundle of counter affidavits, additional affidavits and the huge documents filed by both side, make it clear that the issues were not a subject matter to be decided by writ court and that it will be appropriate for a Civil Court to decide the issues in a regular civil suit. Learned counsel, Mr. Chakraborty went on with his submission that the petitioner did not follow the procedure prescribed by Rules, and abruptly went ahead in constructing the building and therefore, the respondents were compelled not to issue occupancy certificate to the petitioner. In support of his contention, learned counsel referred the following case laws :-

(i) Puran Singh Vs. State of Punjab, (1996) 2 SCC 205,at page 212;

(ii) Ritesh Tewari Vs. State of U. P. ; (2010) 10 SCC 677, at page 684;

(iii) Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, (1981) 1 SCC 80.

(10) Orders passed in the course of hearing of the case:

10. 1 In course of hearing of this writ petition, certain orders were passed by this court time to time referring to the submission of learned counsel of both side and those orders, since were passed on hearing learned counsel of both side, are very relevant towards arriving at an ultimate decision in this case. I would, therefore, like to quote here those specific orders dated 29. 03. 2011, 04. 05. 2011, 14. 06. 2011, 20. 07. 2011 22. 07. 2011 ,05. 08. 2011 and order dated 12. 09. 2011 as under.

29th March, 2011

BEFORE

THE HON'ble MR. JUSTICE I A ANSARI

Heard mr. Somik Deb, learned counsel appearing on behalf of the petitioner. Also heard Mr. S. Chakrborty , learned Additional government Advocate appearing on behalf of State respondent Nos. 1 and 2 as well as Mr. S M. Chakraborty , learned senior counsel appearing for the respondent Nos. 3 and 4.

Appearing on behalf of the petitioner, Mr. Deb, learned counsel, submits that there are two grounds on which permission has been refused by the respondents, particularly, respondent nos. 3 and 4, the reasons being that (1) the petitioner is allegedly occupying government land and (2) that the petitioner does not have adequate parking space as is required under the law. Mr. Deb, learned counsel, also submits that the petitioner is agreeable to demolish the structure, which he has already built on the said Government land. Mr. Deb, learned counsel, further submits that the petitioner has sufficient open space, which is clearly reflected from the materials on record and that even the open space, which the petitioner has, would be sufficient for parking space.

Responding to the submissions made on behalf of the petitioner, Mr. Chakraborty , learned Senior counsel, appearing on behalf of the respondent Nos. 3 and 4, submits that if the petitioner agrees to demolish the structure, which the petitioner has raised on the Government land, respondent Nos. 3 and 4would have no objection in permitting the construction.

As far as Mr. Chakraborty , learned Additional Government Advocate, is concerned, his submission is that he would obtain necessary instructions in the light of relevant law and would make his submissions accordingly.

Considering the matter in its entirety and in the interest of justice, this writ petition is directed to be listed, as fixed item, for admission hearing, on 12th April, 2011, and on that day, endeavour would be made to dispose of the writ petition.

Furnish a copy of this order to Mr. Chakra-borty, learned Additional Government Advocate.

04. 05. 2011

BEFORE

THE HON'ble MR. JUSTICE U. B. SAHA

Heard Mr. Somik Deb, learned counsel appearing for the petitioner who submits that in terms of the order of this Court dated 12. 04. 2011 passed in C. M. Appl. No. 119 of 2010 arising out of the instant writ petition, the petitioner has demolished and removed its front side boundary wall as per specification and not only that the petitioner also confirmed that there are 31 car parking space available as shown in the revised plan approved by the Jadavpur University. Therefore, at present there is no hurdle for issuance of occupancy certificate in favour of the petitioner.

He further submits that as the Petitioner submitted its plan to the appropriate authority before construction of the building as prescribed in section 125 of the Tripura Municipal Act and proceeded with the construction and now after completion of the construction, the respondent authorities are coming with various pleas to justify their action of non-issuance of occupancy certificate.

Mr. S. M. Chakraborty , learned senior counsel appearing for the respondent Municipal Council as well as Mr. S. Chakraborty , learned Addl. G. A. appearing for the State respondents contended that the respondent authorities have to first inspect the petitioners premises to be sure whether it has removed the front side of the boundary wall as per specification and also whether 31 car parking space is available there as shown in the approved plan for which 4 weeks time is required.

Having heard the learned counsel for the parties, this Court is of the considered opinion that so far the inspection of the premises is concerned that can be done within a period of 15 days and the authority may take decision after the inspection in accordance with law within further 2 weeks. Accordingly, it is ordered.

List this case again on 14. 06. 2011 when there shall be an attempt for disposal of the entire writ petition.

It is made clear that before inspection, the respondent authority may issue a notice to the petitioner so that the representative of the petitioner can be present at the time of inspection.

Registry is directed to furnish a copy of this order to the learned counsel for the parties.

14. 06. 2011

BEFORE

THE HON'ble MR. JUSTICE U. B. SAHA

When the matter is taken up, Mr. Somik Deb, learned Counsel appearing for the petitioner would contend that in terms of the earlier order of this Court, the chief Executive Officer, Agartala Municipal Counsel has already inspected the buildings site of the petitioner at Shakuntala Road and as per the said inspection, the petitioner has already vacated the land measuring 460 Sq ft. including the encroached Govt. land on the eastern side along the Shakuntala Road, though in reality, the petitioner has encroached land measuring 439 Sq. ft. He also contended that the Chief Executive Officer physically found 31 car parking spaces, but those car parking spaces are differently placed than the places shown in the plan. Therefore, the allegations of the respondents so far as non-availability of the 31 car parking space is concerned is not correct, rather at best, it can be said that there was some minor deviation from the plan which can be compounded.

Mr. S. Chakraborty , learned Addl. Govt. Advocate while responding to the submission of Mr. Deb placed one note No. 39 of Director, UDD which was endorsed to him for necessary action.

In view of note No. 39, mr. Chakraborty prays for a weeks time to file a short affidavit and also to obtain necessary instructions from the authority whether the deviation committed by the petitioner can be compounded.

. .

20. 07. 2011

BEFORE

THE HON'ble MR. JUSTICE I. A. ANSARI

Heard Mr. Somik Deb, learned counsel, for the petitioner, and Mr. S. M. Chakraborty , learned counsel, for the respondents.

Having heard learned counsel for the parties, this Court is of the view that an officer of the Agartala Municipal Council, who is competent to explain the deviation, if any, in the construction of the building, shall appear, in person, so that the writ petition can be effectively disposed of.

In view of the above, this writ petition is directed to be listed, for admission, tomorrow (21. 07. 2011).

22. 7. 11

BEFORE

THE HON'ble MR. JUSTICE I. A. ANSARI

Heard Mr. Somik Deb, learned counsel, appearing for the petitioner, and Mr. S. M. Chakraborty , learned Senior counsel, assisted by Mr. K. K. Pal, learned counsel, appearing for the respondent Nos. 3 and 4. Also heard Mr. S. Chakraborty , learned Additional GA , appearing for the respondent Nos. 1 and 2.

On 14. 06. 2011, the order of the Court passed in this case, reveals as under :

When the matter is taken up, Mr. Somik Deb, learned counsel appearing for the petitioner would contend that in terms of the earlier order of this court, the Chief Executive Officer, Agartala Municipal Counsel has already inspected the buildings site of the petitioner at Shakuntala Road and as per the said inspection, the petitioner has already vacated the land measuring 460 sq ft. including the encroached Govt. land on the eastern side along the Shakuntala Road, though in reality, the petitioner has encroached land measuring 439 Sq. ft. He also contended that the Chief Executive Officer physically found 31 car parking spaces, but those car parking spaces are differently placed than the places shown in the plan. Therefore, the allegations of the respondents so far as nonavailability of the 31 car parking space is concerned is not correct, rather at best, it can besaid that there was some minor deviation from the plan which can be compounded.

Mr. S. Chakraborty , learned Addl. Govt. Advocate while responding to the submission of Mr. Deb placed one note No. 39 of Director, UDD which was endorsed to him for necessary action.

In view of note No. 39, mr. Chakraborty prays for a weeks time to file a short affidavit and also to obtain necessary instructions from the authority whether the deviation committed by the petitioner can be compounded.

A perusal of the Tripura Building Rules, 2004, does not prima facie show any provision for composition.

In view of the fact that acting on the assurances, which had been given by the Agartala Municipal Council, the petitioner has already demolished the alleged unauthorized construction and has vacated the Government land, which was alleged to have been encroached by the petitioner, the petitioner is, now, required , in the light of the order, dated 14. 06. 2011, to submit to Agartala Municipal Council a revised plan, as per the exiting position of the parking space, to enable the Agartala Municipality do the needful in accordance with law so that the petitioner can, in terms of the undertaking, which had been given by the Agartala Municipality, complete the construction of the building provided that requisite sanction from the State Government is received by the petitioner inasmuch as rule 51 lays down that a building, which exceeds the height of 40 meters, requires sanction from the State Government.

For the purpose of enabling the petitioner to submit a plan as indicated above and, then, to pass further necessary order, this writ petition is directed to be listed, for orders, on 5th of August, 2011.

05. 08. 2011

BEFORE

THE HON'ble MR. JUSTICE A. C. UPADHYAY

Heard Mr. Somik Deb, learned counsel, appearing for the petitioner as well as Mr. S. M. Chakraborty , learned senior counsel ssisted by Mr. K. K. Pal, learned counsel, appearing for the respondent Nos. 3 and 4 and Mr. S. Chakraborty , learned Additional GA, appearing for the respondent Nos. 1 and 2.

Mr. Somik Deb, learned counsel has submitted that he is not pressing supplementary affidavit filed by him today.

Mr. Somik Deb, learned counsel for the petitioner has submitted that order passed by this court in C. M. Appln. No. 119 of 2011 on 12. 04. 2011, has clarified that the respondent No. 3 and 4 have already given the assurance to take necessary steps in terms of the order dated 29. 03. 2011.

The assurance so given by the respondents on 29. 03. 2011, reads as follows:

Appearing on behalf of the petitioner, Mr. Deb, learned counsel, submits that there are two grounds on which permission has been refused by the respondents, particularly, respondent nos. 3 and 4, the reasons being that (1) the petitioner is allegedly occupying government land and (2) that the petitioner does not have adequate parking space as is required under the law. Mr. Deb, learned counsel, also submits that the petitioner is agreeable to demolish the structure, which he has already built on the said Government land. Mr. Deb, learned counsel, further submits that the petitioner has sufficient open space, which is clearly reflected from the materials on record ant that even the open space, which the petitioner has, would be sufficient for parking space.

Responding to the submissions made on behalf of the petitioner, Mr. Chakraborty , learned Senior counsel, appearing on behalf of the respondent Nos. 3 and 4, submits that if the petitioner agrees to demolish the structure ,which the petitioner has raised on the Government land, respondent Nos. 3 and 4 would have no objection in permitting the construction.

On perusal of the order dated 22. 07. 2011 passed by this Court, it appears that acting on the assurances, which had been given by the Agartala Municipal Council, the petitioner has already demolished the alleged unauthorized construction and has vacated Government land, which was alleged to have been encroached by the petitioner. The petitioner has been directed to submit revised plan before the Agartala Municipal council as per the existing position of the parking space, to enable the Agartala Municipality to do the needful in accordance with law so that the petitioner can, in terms of the undertaking, which had been given by the Agartala Municipality , complete the construction of the building.

The State Government shall also consider to accord sanction in terms of Rule 51, since the height of the building is above the permissible limit.

In view of the above, mr. S. M. Chakraborty , learned senior counsel, appearing for the Agartala Municipality has sought for 10 days time to take necessary decision in this regard.

Let the matter be listed on 16th of August, 2011for necessary orders.

In the mean time, the respondents- State as well as Agartala Municipality shall take necessary decision on the matter and inform the Court accordingly to enable the court to pass necessary order.

Let a copy of this order be furnished to the learned counsel for the respondents during the course of the day.

12. 09. 2011

BEFORE

HON'ble MR. JUSTICE I A ANSARI

Heard Mr. Somik Deb, learned counsel for the petitioner, and Mr. DP Kundu , learned Advocate General, Tripura , appearing on behalf of respondent Nos. 1 and 2. Also heard Mr. SM Chakraborty , learned counsel for respondent No. 4.

Heard the learned counsel for the parties concerned.

It has been submitted, on behalf of the respondent No. 1, by the learned Advocate General that Rule may be issued and the State Government be given four weeks time to file additional affidavit. This submission has been strongly resisted, on behalf of the petitioner, on the ground that the matter has been heard, in part, at the admission stage on various sittings of this Court and bearing in mind the fact that the petitioner has not been able to occupy the building, which it has constructed, the writ petition be expeditiously disposed of.

Having considered the fact that the respective cases of the parties concerned have been known to each other for a long time and the matter has been listed on a number of occasions and heard too, let Rule be issued, making the same returnable, for hearing, on 21. 09. 2011, as fixed item. In the meanwhile, the respondents shall file their additional affidavit as sought for.

No formal notice is required as respondents already stand represented.

Considering the nature of grievances, which the writ petitioner has raised, the nature of relief (s), which the writ petitioner has sought for, and the grounds on which the petitioners prayer have been resisted, this Court is of the view that the writ petition needs to be expeditiously heard and disposed of. It is, therefore, made clear that request for adjournment of hearing cannot be entertained unless the adjournment becomes indispensible in the interest of justice.

Let the relevant records be produced by the respondents.

(11) Whether the commitments/representations made before the court in the course of hearing amounts to Promissory Estoppel?

11. 1 A bare reading of the orders passed by this Court, reproduced above, makes it clear that in the course of hearing, the dispute and difference minimized only on two points namely- (i) whether the petitioner was allegedly occupying govt. land and if so, the petitioner should vacate it and (ii) the petitioner should make adequate parking space of 31 vehicles as per the specification given by Jadavpur University in the technical clearance. The orders further reflect that on behalf of respondent Nos. 3 and 4 a submission was made that if the petitioner agrees to demolish the structure from govt. land, they would have no objection in permitting the construction. Pursuant to the court's order, CEO of AMC inspected the building site and submitted a report contending that he found spaces of 31 car parking but those were differently placed than the places shown in the plan. Order dated 20. 07. 2011 reflects that a competent officer of Agartala Municipal Council was supposed to explain the deviation if any, but ultimately the parties submitted their respective affidavit. In the additional counter affidavit filed on behalf of respondent Nos. 3 and 4 ,dated 20. 06. 2011, in para 3 and 4, the Municipality made specific statement regarding those two points and therefore, the commitment made before the court in course of hearing, definitely has got bearing on the merit of the case. Letter of CEO of Municipality dated 31. 05. 2011 annexed as Annexure R- 3/3 to the additional counter affidavit dated 20. 06. 2011 clearly speaks that the petitioner acted upon on the promise made before the court by the respondents.

11. 2 It was contented by learned counsel, Mr. Deb appearing for the petitioner that the commitment made before this court by the respondents amounts to a promissory estoppels and that this court may also invoke doctrine of legitimate expectation. Learned counsel, Ms. Guha , on the other hand, has submitted that there cannot be an estoppel against law and since the petitioner violated the statutory provisions of the Municipality Act and Rules framed there under, the doctrine of promissory estoppel cannot facilitate any benefit to the petitioner. Learned counsel of the petitioner relied on the ratio laid down in the case of State of Punjab Vs. Nestle India Ltd. (supra) in para 43 and 45 of the judgment, which reads thus :-

"43. It would appear that these observations are in conflict with the earlier and subsequent pronouncements of the law on promissory estoppels. Chandrasekhara Aiyar, J. had held that the representation was enforceable despite the "accident" that the grant was invalid inasmuch as it was contrary to statute. Motilal Padampat Sugar Mills had said that the promise was enforceable against the Government despite the requirement of Article 299 of the Constitution. Similarly, Century Spg. held that despite the requirement of the statute prescribing the manner and form to grant exemption from payment of octroi, a promise not made in that manner or form could be enforced in equity. Then again in Godfrey Philips the Court directed an exemption to be granted on the basis of the principles of promissory estoppels even though Rule 8 of the Central Excise Rules,1944 required exemption to be granted by notification.

45. None of these decisions has been considered in I. T. C. Bhadrachalam Paperboards v. Mandal Revenue Officer, A. P. except for brief reference to Chandrasekhara Aiyar, J. 's judgment which was explained away as not being an authority for the proposition that even where the Government has to and can act only under and in accordance with a statute-an act done by the Government in violation thereof can be treated as a presentation to found a plea of promissory estoppels. But that is exactly what the learned Judge had said".

11. 3 The State counsel, Ms. Guha relied on the decision of the Apex Court in the case of Ahok Kr. Maheshwari (supra) in para 19,20,21 and 22 , which reads thus:-

"19. There are many aspects of "promissory estoppels", but in the instant case we are concerned only with one aspect which is to the effect that if any "promise" has been made contrary to law, can it still be enforced by invoking this rule.

20. The basic principle jis that the plea of estoppels cannot be raised to defeat the provisions of a statute. (See: G. H. C. Ariff v. Jadunath Majumdar Bahadur 15: Mathra Parshad and Sons v. State of Punjab16 ; Rishabh Kumar and Sons v. State of U. P. 17)

21. This principle was reiterated in Union of India v. R. C. D'souza18 where a retired army officer was recruited as Assistant Commandant on temporary basis and was called upon to exercise his option for regularization contrary to the statutory rules. It was held that it would not amount to estoppel against the Department.

22. Whether a promissory estoppels, which is based on a "promise" contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India10 as also in Shabi Construction Co. v. City and Industrial Development Corpn. 12 wherein it is laid down that the rule of "promissory estoppels" cannot be invoked for the enforcement of a "promise" or a "declaration" which is contrary to law or outside the authority or power of the Government or the person making that promise. "

11. 4 The commitments made before the court in the orders quoted above, clearly relates to factual aspects regarding occupation of Govt. land and space of car parking. There is nothing that any commitment was made contrary to the provision of law and therefore, I cannot agree with the submission of learned State counsel that the principles of promissory estoppels shall not apply in the given facts and circumstances of this case.

11. 5 The doctrine of promissory estoppel can come into play on the basis of the promise itself and it is not necessary that all requirements of Section 115 should also be satisfied. If there was a promise on the part of the Govt. or the Municipality, even if it was not recorded, but it contained representations which were acted upon by the other party the Govt. and the Municipality becomes bound to carry out the promise. Here, in this case, the Municipality made a clear statement before the court that if the govt. land is vacated and space for 31 car parking is shown, necessary permission will be issued. The letter of the CEO of the Municipality, dated 31. 05. 2011 (Annexure R-3/3) to the counter affidavit dated 20. 06. 11, filed by respondent Nos. 3 and 4 abundantly makes it clear that after the commitment was made before the court, the petitioner acted positively and so the doctrine of promissory estoppel in this case shall apply. This Court in the case of Vinay Cement Ltd. Vs. State of Assam and Ors. reported in AIR 1997 Gau 34 while deciding the issue of promissory estoppel in the given fact of that case has held that where promoter of a company, being encouraged by a govt. scheme and acted on the basis thereof, decided to set up an industry within the State and took all effective "initial" and "final" steps in setting up the industrial unit in the most backward District, placed firm orders in crores with suppliers, obtained necessary clearance certificate from the Pollution Board and other State and Central bodies, made expenditure of at least 25% of the capital cost, there is no justification for the State Govt. to refuse to issue eligibility certificate under the scheme. What emerges from the case laws discussed above, is that for application of doctrine of promissory estoppel all what is required is that the party asserting the estoppel must have relied upon representation made to them and must have changed or altered the position by relying on that representation. In the case at hand, the petitioner has made out a clear case that they have acted positively on the representation made by the respondents and so the respondents cannot go back to the promise made before the court.

(12) Admittedly, the building plan was submitted by the petitioner on 24. 04. 2006. The plan was prepared by Creative Forum Pvt. Ltd. , an authorized Building Planner Grade-1, certified by Agartala Municipal Council vide Memo. No. 91/ss/amc/c/52 dated 06. 04. 2006. The license issued by the Municipality to the said Building Planner was renewed time to time by the Municipal Authority. The said Creative Forum Pvt. Ltd. was consisting of Engineers namely, (i) Sri Bikash Datta, B. Arch. M. Arch. (ii) Sri Subrata Chattapadhya,b. E. (Civil), (iii) Sri Tapas Kr. Bhattacharjee, B. Arch. M. arch, (iv) Sri Suman Das, B. E. (Civil). M. E. (Struct). The name and qualification of the Engineers of the Creative Forum reflected in Memo. No. F. 91/ss/amc/2006/5305-15, dated 23rd March,2006 issued by Agartala Municipality in the nature of a license. A copy of the building plan is placed on record in the file of CM application No. 119 of 2011 arising out of this writ case and it shows that the building plan was prepared by the said authorized Building Planner. The submission of learned counsel of respondents, that the building plan was not submitted through an authorized Building Planner is contrary to the records of the respondents themselves. Such submission of the respondents contrary to their own records can in no way be appreciated and is liable to be discarded and discouraged.

(13) Deemed approval :

13. 1 Admittedly, the building plan as submitted by the petitioner was neither approved nor rejected by the respondent Municipality within 60 days as prescribed under Section 125 of Municipal Act. It is also brought on record by filing rejoinder affidavit that the petitioner filed an appeal before the Chairman of the Municipality on 21. 11. 2006 but that appeal was not disposed of within 30 days as required under the provisions of the Rule. Since section 125 of the Act and Rule 23 and 24 of the Rules are relevant, those are re-produced hereunder, thus:-

Section 125. 1) Within sixty days after the receipt of any application with building plan or of any information or document which the Municip-ality may reasonably require the applicant to furnish, the Municipalty shall, by written order either accord sanction to the building plan and give permission with or without condition to execute the work or refuse to accord permission.

2) A building plan sanctioned under this section shall remain valid for three years from the date of such sanction, and may be renewed for another two years on payment of such fees as may be levied by the Municipality by regulations. 3) If, within the period above the Municipality has neither accorded nor refused to accord sanction to a building Plan or permission of execution, such sanction or permission shall be deemed to have been granted, and the applicant may proceed to execute the work according to the submitted plan and nothing in this section shall be deemed to have permitted the applicant to contravene any of the provisions of this Act or the rules or regulations made thereunder. Before any person commences to erect or reerect a building the owner of the building, shall send to the Municipality a written notice specifying the date on which he proposes to commence the work. "

Rule 23 "23. Sanction of plan in case of delays: If within the period specified in these rules, the Local Body has neither sanctioned nor refused to accord sanction to execute any work, the applicant may appeal to the Chairman in writing, in this regard and if the appeal is not disposed of within 30 (thirty) days from the date of receipt of the appeal, such sanction or permission shall be deemed to have been granted and the applicant may proceed to execute the work, so, however that nothing in the sanction shall be deemed to have permitted the applicant to contravene any of the provisions of this rule or any other rules or regulations applicable to such works. "

Rule 24 "24. (1) A sanction to erect a building accorded under these rules shall be valid for 3 (three) years from the date on which it is sanctioned and may be renewed thereafter for a further period of 2 (two) years on payment, in the form of cash or bank draft, of such fees as may be determined by the Local Body on the basis of rule 25 and on production of the previously sanctioned plan. A building plan may be revalidated for a further period of 5 years only in case a building has been partly completed and occupancy certificate in terms of rule 34 has been issued as well as on production of the previous sanctioned/revalidated building plan, the completion certificate and on receipt of fees required to be paid as to be determined by the Nagar Panchayat/municipality from time to time;

(2) Any person who erects a building or continues the work of erection of a building after the permission sanctioned under these rules has expired, shall be deemed to erect such building or to continue such work without sanction;

(3) The erection of a building or work shall be completed within the period specified by the Local Body under section 211 of the Act. Provided that, if the application for renewal of a building is made after the expiry of 3 (three) years, the same shall be accompanied by a renewal fee with a fine not being less than Rupees 2 (two) thousand or as may be deter-mined by the Municipality/nagar panchayat concerned. "

13. 2 According to the substantive provision as prescribed in Section 125 of the Act, it was a statutory obligation on the part of AMC either to accord sanction to the plan by issuing necessary permission, with or without condition to execute the construction work or to refuse to accord such permission. AMC cannot retain the same for a period beyond 60 days. The legislature, at its wisdom made the law that after expiry of 60 days the person who submitted the plan shall acquire a right to proceed with the work of construction presuming that the plan has been approved and permission has been accorded.

13. 3. Similarly, when an appeal was filed before the Chairman, the Chairman is also obliged to dispose the appeal within 30 days. Failure to do so, would definitely, according to the above provision, be deemed to have according of permission to proceed with the construction. No material placed on record by the respondent Municipality to show that within the time specified under the Act and Rules, they have responded in any manner to the petitioner regarding building plan. Indisputably, the petitioner purchased a jote land and construction of building as per plan was taken up on that jote land presuming that the plan was approved by the Municipality. Therefore, there was no wrong on the part of the petitioner in taking up the construction work as per submitted plan on the land, since the Municipality did not respond within the time span as prescribed by law.

13. 4. The question of deemed approval, argued at length by the learned counsel of both side. Learned counsel, Mr. Deb appearing for the petitioner made strenuous argument, referring to Section 125 (3) of Tripura Municipal Act and Rules 23 and 24 of the Building Rules framed there under that on expiration of the period prescribed under those provisions, a legal fiction was created entitling the applicant to commence with the execution of the work. After the legal fiction was created, subsequent communication was of no consequence having no bearing on the legal fiction. The legal fiction once created, any subsequent communication, beyond the prescribed period, would have no effect on the construction work, commenced in furtherance of legal fiction. In support of his contention, learned counsel relied on Para 29 of the Judgment of the Apex Court in Live Oak Resort (P) Ltd. (supra), which reads thus:-"29. As regards the issue of deemed sanction, the High Court answered it in the negative recording therein that the appellants were refused of any sanction though beyond the period as such deemed sanction would not arise. Unfortunately, we cannot lend our concurrence thereto. Panchgani Municipal Council being a 'c' Class municipal council of Maharashtra in its Standardised Building Bye-laws, in particular, bye-law 9. 2 records that while the authority may sanction or refuse a proposal, there stands an obligation on the part of the authority to communicate the decision and where no orders are communicated within 60 days from the date of submission of the plan either by way of a grant or refusal thereto, the authority shall be deemed to have permitted the proposed construction. In view of our observations noticed hereinbefore, we are not inclined to go into this issue in any detail suffice, however, to record that the submissions pertaining to deemed sanction have substance and cannot be brushed aside in a summary fashion. Eventual rejection does not have any manner of correlation with deemed sanction-it is only that on expiry of the 60 days that the sanction is deemed to be given, subsequent rejection cannot thus affect any work of construction being declared as unauthorized. The deeming provision saves such a situation. As noticed above, we are not inclined to detain ourselves any further on this score"

13. 5 It is evident that the plan was submitted on 24. 04. 2006, 60 days expired on 23. 06. 2006 and thereby a legal fiction was created in favour of the petitioner to commence with the work. The second legal fiction was again created in favour of the petitioner when the appeal was filed before the Chairman on 24. 11. 2006 after expiry of 30 days i. e. on 21. 12. 2006. Admittedly, the Municipality made first communication asking for removal of some defects as per letter dated 24. 04. 2007 (Annexure-4 to the writ petition) and before that there was no response from the side of the respondents regarding plan submitted by the petitioner which consequently created a legal fiction in favour of the petitioner to proceed with the work as per the plan submitted to the respondent Municipality.

13. 6 On behalf of the Municipality (respondent Nos. 3 and 4), a fade submission was made that the matter was sent to the State Government for approval because the rule requires approval of the State Govt. and therefore, the Municipality could not respond to the plan submitted by the petitioner. There is nothing in the Municipal Act or the Building Rules that after the expiry of 60 days as prescribed under Section 125 of the Act, the petitioner was supposed to further wait for approval of the plan. Under such circumstances, even if it was the State respondent by the Municipality, that cannot give a life to the Municipality to remain silent over the plan for an uncertain future. On behalf of the State respondents , Ms. Guha argued that even if no response was made by the Municipality within the time prescribed under the Act, that by itself cannot allow the petitioner to raise an unauthorized building contrary to the provision of the Act and Rules framed there under. In support of her contention, learned counsel paras 21 and 22 of Rikhabsao Nathusao Jain (supra), which reads thus:-

"21. A building plan deemed to have been sanctioned must also satisfy the conditions laid down in the building bye-laws. "22. This Court in Municipal Corpn. , Shimla v. Prem Lata Sood1 stated : SCC p. 56, para 44)

"44. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and use of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. Although a deeming provision has been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant for necessary clarification and/or compliance with the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision. "

Learned counsel also relied on paras 33, 34, 44 and 45 of Commissioner of Municipal Corporation Shimla (supra), which reads thus:-"33. Section 247 no doubt provides for a legal fiction specifying a period of sixty days, within which the application for grant of sanction of a building plan should be granted, but the said period evidently has been considered to be providing for a reasonable period during which such application should be disposed of. However, only because the period of sixty days has elapsed from the date of filing of application, the same by itself would not attract the legal fiction contained in Section 247 of the 1994 Act. When such an application is attended to and the defects in the said building plans are pointed out, there cannot be any doubt whatsoever that the applicant must satisfactorily answer the queries and/or remedy the defects in the building plans pointed out by the competent authority.

34. The building plans for which sanction was prayed for by the respondents, as noticed hereinbefore, had been attended to. The purported defects were removed, as noticed hereinbefore only on 10. 04. 2000. Even according to the appellant Corporation all the defects were not removed which had been pointed out by the appellant Corporation in terms of its letter dated 6. 6. 2000. In any event, as noticed hereinbefore, the State of Himachal Pradesh imposed a temporary freeze on the development activities in the Mall area by an order dated 17. 4. 2000. The said order was also binding upon the appellant Corporation and no permission could have been granted in favour of the respondents in violation thereof. It is true, as has been contended by Mr Ganguli, that the said purported temporary freeze on the construction activities imposed in terms of the Notification dated 17. 4. 2000 came to be clarified by the State on or about 25. 7. 2000. But by reason thereof, the State could not have directed the municipal Corporation to grant sanction, as a statutory authority must be permitted to perform its statutory functions in respect whereof even any higher authority cannot issue any direction. (See Cmmr. of Police v. Gordhandas Bhanji1, Mohinder Singh Gill v. Chief Election Coimmr. 2 and R. S. Garg v. State of U. P. 3). 44. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and use of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. Although a deeming provision has been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant for necessary clarification and/or compliance with the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision.

45. A legal fiction, as is well known, must be construed having regard to the purport and object of the Act for which the same was enacted. (See Ishikawajma-Harima Heavy Industries Ltd. V. Director of Income Tax11, Scale para 36.)"

13. 7 She further relied on para 39 of New Delhi Municipal Council (supra), which reads thus:-

"39. It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted. This is so in view of para 24 of the decision of this Court in Usman Gani J. Khatri v. Cantonment Board1. It would not be out of place to mention that on 7. 2. 2007, the Master Plan, 2021 has been approved in which the LBZ guidelines have been incorporated and since the plan submitted by the respondents was not approved up to the date of coming into force of Master Plan of 201, the LBZ guidelines will apply with full force to the plan submitted by the respondents and the plan which is contrary to the LBZ guide-lines could not have been directed to be sanctioned. "

13. 8 I have carefully gone through the decisions referred by learned counsel Ms. Guha on behalf of the State respondents. The facts of those cases are clearly distinguishable with the facts of the case at hand. There is no quarrel that the sanctioning authority may either approve or reject the plan or ask for any clarification or change in the plan but the response must be within the time limit. One cannot be compelled to wait for uncertain period for the approval to be given by the Municipality. But ,of course, the construction must be according to the provisions prescribed by the Act and Rules framed thereunder. Because of silence of the approving authority one cannot earn an unfettered liberty to construct an unauthorized building which is hazardous for the community. In the case at hand, the picture is completely reverse. Here the building plan was prepared by an authorized agency of the Municipality and the technical clearance certificate obtained from Jadavpur University spelt out that there is no structural defect in the building. It has been constructed on the jote land of the petitioner. There is no other defect except as alleged that a small portion of the khas land is in occupation of the petitioner within the constructed boundary and that space for 31 car parking has not been shown as per the plan. The matter of car parking will be discussed later on. I have no hesitation to hold that in view of the legal fiction, the petitioner rightly enjoyed deemed approval of the plans submitted by them.

(14) Subsequent communications between the petitioner and the respondents:

14. 1. The first response was made by the Municipality through its letter dated 24. 04. 2007 (Annexure-4 to the writ petition) and thereby asked the petitioner to arrange space for 39 car parking, arrange rain water harvesting and also to remove the defect of calculation of area of land shown in the drawing. In response to that letter of the Municipality, the petitioner wrote Annexure-5 requesting that they have shown provision of 27 car parking and that the building will be utilized for office of the petitioner and therefore, so much parking space will not be required and requested the Municipality to approve the plan. Regarding rain water harvesting and area calculation, the matter was taken up with the Municipality and there was no dispute on those issues thereafter. By a letter dated 20. 11. 2007 (Annexure-7) , the petitioner was asked to submit technical clearance contending that the council of ministers decided that technical clearance from recognized institution will be necessary for such high rise buildings. Along with letter dated 20. 11. 2007 a memorandum for the council of ministers dated 12. 09. 2007 also was enclosed. The petitioner requested the Municipality to accord approval of the technical clearance from Jadavpur University and the CEO, Municipality by letter dated 08. 01. 2010 (Annexure-8 to the writ petition) requested respondent No. 2 to accord approval and accordingly, that was approved. Annexure-8 to the writ petition is very important which is reproduced thus:-

OFFICE OF THE CHIEF executive OFFICER

AGARTALA MUNICIPAL council

AGARTALA

No. F. HC/52/06/survey/amc

Dated Agartala, 8th jan10

To

The Director

Urban development Deptt.

Govt. of Tripura

Agartala

Sub : Construction of G + 5 storied building at Shakuntala Road by Rose Valley Estates & Construction Ltd. ,

Ref . Your letter No. F2 (329)-GL/tcpo/2009/ 848-49 dated 01. 01. 2010.

Sir,

With reference to the above subject, it is to inform you that specific proposal of AMC indicating grounds to settle the issue is as follows:-

In addition the Director-Projects, rose Valley Real Estate & Construction Ltd. has submitted a letter on 1st december09 bringing the following series of events in chronological manner.

(1) The building plan was submitted on 24th April06.

(2) Fire Clearance and approval from Electrical Inspectorate were obtained on 6th June06 and 1st august06 respectively based on communication from the Assessor, Agartala Municipal Council.

(3) The Plan was sent to deptt. of Town & Country Planner on 5th september06.

(4) Communications received from Agartala Municipal Council dated 18th May06, 2nd December06 and 24th april07 giving observations on the plan but no where question of Technical clearance Crept in.

(5) Letter from Urban development Directorate dated 20th November07 was dispatched to Rose Valley only on 23rd August08. The letter suggested list of Consultants for technical clearance. 2 years was lost in the process.

Now, the Rose Valley real Estate & Construction Ltd. has complied with all observations given by Urban Development Deptt. as well as Agartala Municipal Council except obtaining the technical clearance from one of the 10 listed consultants vide state Govt. Circular No. 14 (1)/udd-dud/2007/2898 dt. 12. 09. 07.

As the construction of the building is already completed, the Rose Valley Real Estate & construction Ltd. is not able to obtain the post-facto technical clearance from these listed consultants but has agreed for obtaining technical clearance from Jadavpur University .

Keeping in view the fact that the Rose Valley Real Estate & Construction Ltd. has submitted the building plan on 24th April06 and the list of 10 firms was circulated on 12th september07, the Rose Valley Real Estate & Construction Ltd. may be exempted from obtaining technical clearance from one of these 10 listed consultants and may be allowed to obtain technical clearance from Jadavpur university as one time decision not to be treated as precedence.

Yours faithfully,

Sd /-

(Kiran Gitte, IAS)

Chief Executive Officer

Agartala Municipal Council

Copy to:-

1) The Honble chairperson, AMC for kind information.

2) The Principal secretary, UDD, Govt. of Tripura, Agarrtala for kind information.

Chief Executive Officer

Agartala municipal Council

14. 2. The State respondents approved the name of Jadavpur University as one of the recognized institutions to accord technical clearance and the petitioner accordingly was asked to submit technical clearance from Jadavpur University by a notice dated 25. 05. 2009 issued by Assessor of Municipality (Annexure-10) and pursuant thereto, the petitioner obtained clearance certificate from Jadavpur University and submitted the same by a letter dated 26. 08. 2009 before the Municipality (Annexure-12) to the writ petition). The technical clearance accorded by Jadavpur University, since very important for decision of this case, is reproduced here which reads as follows:-

Jadavpur University

Kolkata-700

032, India

DEPARTMENT of ARCHITECTURE

August 26,2009

The Director

Rose Valley Real Estates and

Constructions Ltd. Kolkata

Subject : Technical Clearance concerning your G + V Building at Shakuntala Road , Agartala , Tripura

Dear Sir,

Referring to your request concerning evaluation designs and drawings for the G+v Building at Shakuntala Road at Agartala , Tripura , I am to refer to the fact a team of teachers consisting of Lecturer, Reader and Professor belonging to the Department of architecture and Civil Engineering have reviewed the designs and drawings of the said building and have come to the general conclusion that the Plans have been made in conformance with Tripura Building Rules 2004. The predominant usage of the Buildiing is as office in all floors; excepting usage of the 3rd floor as a restaurant and ground floor, predominantly as Car parking, reception, Lobby, etc.

Concerning the structural designing of the said building, it has been noted that the same is overall in tune with relevant BIS (Bureau of Indian Standars) codes and standard engineering practices for design.

The details of the evaluation are appended for your ready reference.

It has been noted that relevant clearances/no objection certificates had been obtained earlier from the (i) Office of the Divisional Fire Officer, Govt. of Tripura through communication no. 224-26/7-8/fire/pw/2006 dated Agartala ,the 01/08/2006 and (ii) Electrical Inspectorate, Govt. of Tripoura through certificate no. 283 jdated Agartala , the 6th June,2006. Under the above circumstances, necessary technical clearance is, therefore, accorded.

Sd /-

Dr. Shivashish Bose

Reader

TECHNICAL observation

(ARCHITECTURAL)

SL. Technical Requirem - Technical observa -

NO. ent Regarding Bui- observation on the

lding design as per proposed Building

Tripura Building plan as per Tripura

Rules-2004 Building Rules.

1 MEANS OF ACCESS

As per Rule 46 (part The plot for the pr-

-III) every plot shall oposed building

abut on means of abuts on a main

access which may road.

be a public street or

private street or

passage

2 GROUND COVERAGE

As per Rule 47 (part- The ground Cove-

III) the maximum pe - rage of the buildi -

rmissible Gr. Cover- ng plan submitted

age of the building is 651. 60 sqm i. e. ,

having commercial 47. 73% of plot Area.

use for plot size of The Area of the

500 sqm or more is plot is 1365. 04 sqm.

50% Hence the ground coverage for the

building plan is within the permissible limit. The construction has also been

made in line with the

building plan.

3 HEIGHT OF BUILDING

As per rule 51 (1) (pa- The plot for the

rt -IV)building exce - building abuts on

eding 14. 0 m height a street whose wi -

shall be allowed on dth is 22. 86 m. He-

a public or private nce the building

street whose width plan of height 18m

is 18 m or more can be allowed on that plot

4 OPEN SPACES

As per Rule 51 (2,3,4) The height of the

(part-IV) the minim- building plan

um open spaces re- submitted is 18.

quired to be left all

around to the build-

ing of height more

than 14m are as

follows

Front open space for Front open space

business building maintained as per

20% of the height of plan as well as per

the building or 6m actual construction

whichever is less. = 9. 9m; which is 6. 3

This becomes 18 X m more than the mi-

0. 20 = 3. 6 m. nimum requirement

as per rules. The

Side open space- Side open space

3. 5m or either side (North) = 3. 5 m.

for the building not Side open space

exceeding 18m height. (South) = 4m.

Rear open space-5m Rear open space-

or building not exce - 10m.

eding 18m height. Open spaces left all

around the build-

ing are more than minimum permiss -

ible values.

5 FLOOR AREA RATIO

As per Rule 51 (6a) The Floor Area Ra-

part-IV the maximum tio (F. A. R.) for the

permissible floor area building plan sub-

ratio for business mitted is 2. 497. The

building is 2. 5 details of area calc-

ulation shown in

the drawing is che - cked and found OK.

6 HEIGHT OF STAIR HEAD ROOM,

ROOF TANK

As per Rule 51 (66) In the building plan

part-IV. submitted the heig -

The minimum height ht of Stair case-

of stair case-2. 4m 2. 4 m.

Roof Tank including Height of Roof Ta-

its support-1. 8m nk - 1. 8 m

Lift machine room-as Lift machine room

per latest addition of -2. 5m clear height

N. B. C .

All the above hei -

ghts are within the

permissible limit.

7 PLINTH HEIGHT

As per Rule 55 (1) The plinth height

part-V the minimum of the building pl-

plinth height of any an submitted is

building is 0. 6 m 0. 6mm

8 CAR PARKING SPACE

As per Rule 50 part In the building plan

-IV company requir - submitted covered

ed for office space area of office floors

and Restaurant are (1st, 2nd, 3rd, 4th,

as follows: 5th) = 2425. 90 sqm.

One car parking sp- Therefore, car park- ace for every 75 sqm ing space required

of covered area for = 29 nos.

covered area upto Covered area of

1500 sqm and one Restaurant floor =

car parking space for 593. 375 sqm.

every 100 sqm of co- Car parking requi -

vered area beyond red = 2 nos.

1500 sqm for Restau - Total car parking

rant and eating hou - requirement =

se no parking space 31 nos.

necessary upto 200 In the building plan

sqm of covered area. submitted number

One car parking sp- of car parking spa-

ace for every addit - ce provided =

ional 200 sqm of 31nos.

floor area.

9 HEIGHT OF HABITATH ROOM

As per Rule 56 (2) In the building plan

part-VI the clear he- submitted the clean

ight of Habitable ar - height in each floor

ea should not be less is 2750 from the top

than 2. 75 m measured of floor to the und-

from the surface of er side of slab. So,

the floor to the low- minimum required

est point on the ceil- clear height is pro-

ing . vided in each floor.

10 PARAPET WALL

As per Rule 68 part- In the building plan

VI, the maximum he- submitted the hei -

ight of parapet wall ght of parapet wall

allowath the roof shown is 1. 0m. So,

edge is 1. 5m it is within the pe -

rmissible limit.

11 GENERAL EXIT REQUIREMENT

As per Rule 74 (part- In the Building pl -

vi) exits shall be loc- an submitted the

ated in such a way two exits on the

that the distance be- floor are placed at

tween 2 (two) exits on a distance of 26. 7m

the floor shall not ex- and the distance to

ceed 30m in the case the exists from the

of Business building dead end are 11. 4m

and the distance to and 5. 3m. So the

an exit from the dead distances are within

end of the corridor permissible limits.

shall not exceed half

of the distance spe -

cified above.

12 As per 75 (part-vi)the In the building plan

minimum member of submitted the num-

staircases shall not ber of staircases is

be less than 2 (two) two and both the

in the case of buildi - staircases are plac -

ng of more than 14m ed on the external

in height and one of faces of the Build-

them should be on ing.

the external face of

the building.

13 As per Rule 76 (part- In the building plan

vi) the minimum width submitted the wid -

of each stair way for ths of stairways in

Business Building both the staircases

shall be 1. 8 M are 1. 8m.

Sd /- Sd /- Sd /-

Lecturer Dr. Siba Priya Reader

Civil engineering Mukherjee , Department of

Department Professor, Architecture,

Jadavpur University Deptt. of Jadavpur

Kolkata . Civil engineering University

Jadavpur University Kolkata

Kolkata-700 032 700032

Compliance of rule-50[provision of Parking Space for a Building within a Plot ]

CAR PARKING SPACE

A. Parking Requirement (as per the Agartala Municipal Commission) for the office Area:

OFFICE area = First Floor - 580. 625 SQM

Second Floor- 580. 625 SQM

Fourth Floor- 632. 325 SQM

Fifth Floor- 632. 325 SQM

TOTAL area- 2425. 90 SQM

Car parking required = 20 car parking spaces (for the first 1500 sq. m.)

plus 1 additional car parking space for every 100 sq. m. or part thereof beyond 1500 sq. m.

for the building under reference, the total required no. of car parking provisions required;

20+@ 1 car parking space per 100 sq. m. of (2425. 90-1500) sq. m.

This arrives at 20+9. 0=29 Nos.

B. Parking Requirement (as per the Agartala Municipal Commission) for the restaurant Area:

RESTAURANT AREA = 593. 375 Sqm.

As per the Municipal norms, no Car parking space is required to be provided for the first 200 sq. m. of the Restaurant area. But for additional area beyond 200 sq. m . , one car parking to be provided for every additional 200 sq. m. or part thereof.

On the basis of these, the total required no. of car parking spaces arrives at:

(i)No of car parking spaces required for the first 200 sq. m . (out of 593. 375) sq. m. =0

(ii) No. of car parking spaces required for the additional area of (593. 375-200) sq. m . = 2.

Therefore, TOTAL NO. OF car PARKING SPACES TO BE PROVIDED FOR THE ENTIRE BUILDING = (29+2) = 31 NOS.

Sd /- Sd /- Sd /-

Lecturer Dr. Siba Priya Reader

Civil engineering Mukherjee , Department of

Department Professor, Architecture,

Jadavpur University Deptt. of Jadavpur

Kolkata . Civil engineering University

Jadavpur University Kolkata

Kolkata-700 032 700032

CAR PARKING SPACES provided IN THE PLAN AS WELL AS PHYSICALLY COULD BE PROVIDED ARE AS FOLLOWS :

01. In the Frontal Area of the Plot, a clear dimension of 9. 9 metre exists as continuous Front Open Space. Out of this, a clear depth of 3. 6 Metre has to be maintained as per the Municipal norms and (9. 9 metre-3. 6 metre); i. e. , 6. 3 metre could be utilized for car parking. In this space, 5 nos. open car parking spaces have been provided.

02. In the Rear Area of the Plot, a clear dimension of 10 metre exists as continuous Rear Open Space. Out of this, a clear depth of 5 Metre has to be maintained as per the Municipal norms and (10 metre-5 metre); i. e. 5 metre could be utilized for car parking. In this space, 6 nos. open car parking spaces have been provided.

03. Within the Building and under the covered roof, 14 nos. car parking spaces have been provided having entry from external side open spaces. Another 6 nos. car parking spaces have been provided having entry through a ramp from the rear side of the building.

It has been verified that the above provisions of Car Parking Spaces so provided in the Plan can in reality as well could be physically be provided at the desired locations with necessary construction of the Ramps, yet, the total number of Car Parking spaces arrives at (5 + 6 + 14 + 6) = 31 Nos. of Car Parking Spaces; which is less by 1 (One) number. This may kindly be noted for necessary further action.

COMPLIANCE LEVEL: COMPLIED

Sd /-

Dr. S. Bose

Reader of the Deptt.

of Architecture

Sd /- Sd /-

Prof. S. Mukherjee Sri K. Mandal

Professor Lecturer

Deptt . of Civil Engineering Deptt. of Civil Engineering

Sd /-

Dr. Siba Priya Mukherjee

Professor

Department of Civil Engineering

Jadavpur University ,

Kolkata-700 032

Compliance of rule-110[provision for rain water Harvesting , etc. ]

Provision of water harvesting through storing of Rain water Runoff is mandatory in all new building having plinth area more than 300 sq. metre for all types of uses.

The Plans have provision of the desired rain-water harvesting through providing 1 no. underground reservoir of 1. 0 Lac Litre capacity and 2 nos. recharge wells; one on each side. Rain water discharges fro the yard as well as from the roof have been taken care of through provision of these system.

COMPLIANCE LEVEL: complied

Sd /-

Dr. S. Bose

Reader of the Deptt.

of Architecture

Sd /- Sd /-

Prof. S. Mukherjee Sri K. Mandal

Professor Lecturer

Deptt . of Civil Engineering Deptt. of Civil Engineering

Sd /-

Dr. Siba Priya Mukherjee

Professor

Department of Civil Engineering

Jadavpur University ,

Kolkata-700 032

Compliance of rule-111[provision for Insurance of the Building]

As per this rule, all buildings, other than the residential ones having 2 storeys or more are required to be insured with an insurance company registered under the Insurance Company Act, prevailing in India .

It is understood that the Building under reference will be suitably insured by the owners with an Insurance Company as per rules in due course of time.

Sd /-

Dr. S. Bose

Reader of the Deptt.

of Architecture

Sd /- Sd /-

Prof. S. Mukherjee Sri K. Mandal

Professor Lecturer

Deptt . of Civil Engineering Deptt. of Civil Engineering

Sd /-

Dr. Siba Priya Mukherjee

Professor

Department of Civil Engineering

Jadavpur University ,

Kolkata-700 032

DESIGN REPORT

FOR PROPOSED G + V storied COMM-ERCIAL COMPLEX AT SHAKUNTALA ROAD , AGARTALA

Design Methodology :

Structural design & drawings has been done as per Architectural input drawings. The whole structure has been designed as per IS:456:2000. The structural design except slabs has been done in STAAD Pro.

Live load has been considered as per IS 875 (Part 2). Architectural drawing shows Shopping provision in 1st & 2nd floor, Restaurant in 3rd floor and Office space in 4th & 5th floor. But in reality all floors will be used as office. So, a relaxation in Live load can be achieved.

Agartala falls in Seismic zone-V. So, Seismic analysis is done in STAAD Pro. analysis. As per IS 1893 (Part-I) : 2002, seismic loads are calculated and the structure is analysed against the combinations with other minimum and maximum gravity loads.

As Ductile detailing is not done as per IS 13920, the structure is analysed as Ordinary RC moment-resisting frame (According to table 7 of IS 1893 (Part I) : 2002.).

Slab Design :

Slab design has been done considering the actual structural thickness of slab provided, including finish.

Slab design and reinforcements shown in the drawing are OK.

The sunken slab shown in structural drawing is not constructed actually. So, the reinforcement shown in drawing is OK.

Beam Design

Beam analysis and design have been done in STAAD Pro. The DL and LL considered in STAAD Pro. is taken from the load calculation of slab design. But in reality the Live load will reduce as the building is now considered as office building instead of commercial building.

The properties of beam have been assigned as per drawings. Beam design has been done considering DL, full LL of the respective floor, and Seismic load.

Reinforcements provided in all beams are more than that required.

Columns are also analysed and designed in STAAD Pro. They are designed against the vertical load and biaxial moments and the reinforcements are provided equally on all four sides.

Interaction ratio in all columns is found to be less than 1. 0, as per Clause 39. 6 of IS 456: 2000.

Sd /- Sd /- Sd /-

Lecturer Dr. Siba Priya Reader

Civil engineering Mukherjee , Department of

Department Professor, Architecture,

Jadavpur University Deptt. of Jadavpur

Kolkata . Civil Engineering University

Jadavpur University Kolkata

Kolkata-700 032 Foundation Design :

Foundations i. e. , Pile cap is supported on Bored cast in-situ Piles. Here 500 mm dia pile has been used with 12 m depth below pile cut-off level.

After analysing the structure, support reaction for unfactored load combinations is considered for foundation design. Foundation has been considered supported on piles. From Soil report, compression capacity of each 500 mm dia. pile is 33. 72 Ton. Number of pile below each foundation is calculated by considering this compression capacity. Again it is checked against seismic combination, when allowable compression capacity is increased as per Clause 5. 9 & 5. 10 of IS 2911 (Part I/Secii), and Table 1 of IS 1893 (Part I) : 2002.

Structural design of pile has been done as per Appendix-C of IS 2911 (Part I/Secii), considering fixed head.

Pile caps are designed considering maximum pile reaction below cap. Moments are calculated at face of column and shear is calculated at d/2 distance from face of column as per clause 34. 2 of IS 456:2000.

Pile and Pile cap design is safe in all respect.

Codes Used:

IS 875 (Part I, Part II)

IS 456:2000

SP 16

SP 34

IS 1893 (Part I) : 2002

IS 2911 (Part I/sec II)

Sd /- Sd /- Sd /-

Lecturer Dr. Siba Priya Reader

Civil engineering Mukherjee , Department of

Department Professor, Architecture,

Jadavpur University Deptt. of Jadavpur

Kolkata . Civil engineering University

Jadavpur University Kolkata

Kolkata-700 032 700032

14. 3. Respondent No. 2 thereafter by letter dated 22. 03. 2010 (Annexure-13 to the writ petition) again asked the respondent No. 4 to obtain a fresh technical clearance from Jadavpur University and accordingly pursuant to that letter, the petitioner was again asked to obtain a fresh clearance certificate and that was also obtained and submitted before the Municipality as reflected in the first of documents filed by the petitioners on 19. 07. 2012.

(15) From the above communications made between the parties and on going through the technical clearance reports submitted by Jadavpur University, it is evident that the structural plan of the building is on the land belonged to the petitioner and there was no technical defect in the building plan and the structure thereof. The petitioner complied with the requirements raised by the respondents time to time, though it is evident that those requirements sought by the respondents were long after the building plan was submitted by the petitioner, more particularly, after substantial completion of the construction. The contention of the learned counsel of the State respondents that the building plan was revised 8 times, sadly found to be based on no material at all. In view of the communications made by the respondents, regarding the car parking and the removal of boundary wall, the petitioner submitted revised plans after compliance thereof and that does not mean that the original structural plan of the building was in any way affected or changed.

(16) Effect of Memo dated 12. 09. 2007 asking for technical clearance.

16. 1. Admittedly, under the provisions of the Act and Rules framed there under, there is no requirement of submission of a technical clearance by an authorized organization. The State respondents by Annexure-7 asked the petitioner to submit a technical clearance incorporating therewith a copy of the memorandum prepared for the council of ministers dated 12. 09. 2007. The memorandum prepared for the council of ministers cannot be a document to be sent to the petitioner. What was necessary, was to send the decision of the council of ministers in due process. No such decision has been placed on record. Even if such a decision was taken by the council of ministers, it cannot be said to be a part of the Building Rules. The Legislature at its wisdom made the law and provisions prescribed in Chapter 8 of the Municipal Act relates to the building plan and approval thereto etc. Section 274 of the Act generally authorized the State Govt. to make Rules for carrying out the purposes of the Act. By virtue of that power, the State Govt. made the Building Rules. No doubt, the State Govt. has the authority to amend the Rules, but only following the due process, as prescribed by law. Simply by taking a decision by the council of ministers, new requirement cannot be incorporated and thereby ask the petitioner to submit technical clearance. The demand of the technical clearance as sought by the respondents time to time, as I find, is not according to the provisions prescribed in the Rules.

(17) Extent of authority of the State respondents regarding approval of the building plan:

17. 1 Agartala Municipality is a statutory authority, a juristic body. The legislature at its wisdom made the Tripura Municipal Act and vested all powers on the Municipality in respect of Municipal administration including that of grant of permission to building plan, any change thereto and according or rejecting any plan etc. Under Section 126 of the Act, the Municipality has been authorized to refuse a building plan on specific grounds as prescribed therein. Section 139 of the Act vested power on the Municipality to make building regulations consistent with the provisions of the Act and the Rules made by the State Govt. there under.

17. 2. Section 274 of the Act as already stated earlier, has empowered the State Govt. to make rules by notification for carrying out the purposes of the Act. Under that rule making power, the State Govt. made the Building Rules and there under in Rule 51 prescribed a provision that in respect of a building exceeding 14 meters in height, approval of the State Govt. will be necessary. The relevant portion of the rules prescribes thus:-

" In Municipality or in Nagar panchayat, the building height shall not abnormally be more than 14. 00 meters (fourteen). But in the case of any building exceeding 14. 00 meters in height, the Local Body, for reasons to be recorded in writing and with the previous approval of the State Govt. , may sanction such proposal (s) as special case if not otherwise covered by laws for the time being in force. . . . . . . . "

17. 3. Rule 51 further prescribes other requirements in respect of building exceeding 14 meters and there is no controversy about petitioner's building, in respect of other requirements as specified in Rule 51.

Only by virtue of the above provisions, the State respondents came to the picture and usurped the power in the matter of approval to the building plan by the Municipality. The legislature at its wisdom, vested the authority on the Municipality either to approve or to reject a building plan. There is nothing in the Municipal Act,1994 that for a building of any particular height State Govt. is to approve the building plan or at least approval of the State Govt. is necessary. However, by making Rules State govt. has set a clog on the authority of the Municipality prescribed under Section 125 of the Act. Rule making power, as prescribed in Section 274 of Municipal Act, authorized the State Govt. to make rules for carrying out the purposes prescribed under the Act, and not for usurping the power as a super body/authority, above the Municipality, in respect of exercise of its power under Section 125 of the Act. Since no question has been raised on this point and the Rule not challenged, I do not like to discuss further on this point.

On going through the counter affidavit filed on behalf of the State respondents and subsequent additional four counter affidavits filed on different dates, it seems that the State respondents have usurped the authority of Municipality beyond the prescriptions of Municipal Act. By the counter affidavit filed on 24. 11. 2010, the State respondents challenged the contention of the petitioner on the grounds which was supposed to be the matters to be dealt with by the Municipality and all papers referred thereto mostly relate to the Municipality and the petitioner to which the State respondents was not supposed to be a party. What is presumed from the contents of Rule 51 is that, an approval is to be taken from the State Govt. in respect of a building measuring height of more than 14 meters. The Municipality was obliged to take such approval but the approval was not accorded in time and thereby the Municipality could not take the steps in time. Now State respondents, what is evident from the five affidavits in opposition, seem to have come down heavily to somehow prevent the Municipality from according approval to the petitioner in utilizing the building, already constructed. In the additional affidavits, the State respondents have taken the plea which was supposed to be taken by the Municipality. It is abundantly clear that State respondents beyond its jurisdiction interfered in the authority of the AMC and directed the AMC to obtain technical clearance certificate dehors the rules. On the two issues which were identified by the court in the course of hearing, regarding occupation of govt. land and secondly regarding spaces of car parking, the State respondents sadly found to have come down with additional affidavits but failed to substantiate it in any manner. Rather, it is amply focusing a hostile attitude taken by the State respondents towards the petitioner to anyhow restrain the petitioner from occupying the building.

(18) Issue of encroachment of Govt. land:

18. 1 There is no dispute that the structural construction has been raised on the land of the petitioner. Admittedly, in front of the jote land of the petitioner there was a portion of a khas land by the side of the drain after Shankuntala road. The respondents Municipality in connection with their additional counter affidavit filed on 20. 06. 2011, submitted a letter dated 31. 05. 2011 (Annexure R-3/3 to the additional counter affidavit), along with a hand sketch map showing the position of land including the jote land. That annexure R-3/3 makes it clear that the khas land which was occupied by the petitioner has already been vacated. The contents of Annexure-R-3/3 i. e. letter dated 31. 05. 2011 along with the hand sketch map reads thus:-

OFFICE OF THE CHIEF executive OFFICER

AGARTALA MUNICIPAL COUNCIL

AGARTALA

No. F. 52/hc/amc/2006 (P)438

Dated, Agartala 31st May, 2011

To

The Director,

UD Department,

Govt. of Tripura ,

Agartala .

Sub: Site inspection of the Rose Valley Building site at Sukanta la Road, Agartala.

Ref: Your letter No. F. 7 (11)-UDD/tcpo/2010/ 111 dated 15th May,2011.

Sir,

With reference to the subject mentioned above, I would like to inform you that the site of the Rose Valley Building at Sukantala Road , Agartala has been inspected by the undersigned isdm , Sadar and concerned Revenue officer and officials of AMC ojion 30th May 2011 in presence of the representatives of Rose Valley , sri A. K. Saha , Regional director and others. This is in connection with the judgment/order passed by the Honble High Court, Agartala Bench, vide case No. W. P . (C)465/2010 dated 04. 05. 2011.

In this context, on physical inspection and enquiry of the said site of the construction of Rose Valley Building at Sukantala Road , Agartala , it was found that the Rose Valley Real estate & Construction Ltd. had already vacated land measuring 460 sq. ft . from the encroached Govt. land on the Eastern side along with Sukantala Road . It may be mentioned here that the said company was encroaching land measuring 437 sq. ft . earliler as was demarcated jointly. A hand sketch map showing the land vacated by Rose Valley Real Estate & Construction Ltd. is enclosed herewith.

Secondly, the said company has made provision for parking of 31 Cars, at different places on the ground floor as per sketch map submitted by the Regional Director, Rose Valley vide his letter No. F. 4/rv/misc/aro/rd/b-2789 dated 24th May 2011. However, the provision of Car parking does not match with the Car parking spaces as the provision kept in the revised plan of Jadavpur University . A copy of the sketch map is

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enclosed herewith for your kind perusal. This is for your kind information & doing the needful. Yours faithfully, Enclo : As stated Sd /- (P. K. CHAKRAVARTY) Chief Executive Officer Agartala Municipal Council 18. 2. The State respondents in their additional counter affidavit filed on 20. 9. 2011 in Para 18 has demonstrated a sketch in respect of the govt. land which was earlier occupied by the petitioner but later on vacated. It was contended by the State respondents that the khas land was in an oblique position and the petitioner though vacated the khas land but still in possession of 1 ft. 5" of the khas land in the southern side, whereas, the petitioner vacated from their jote land measuring 2 ft. 1" in the northern side and the land was made horizontal. In para 18 of the counter affidavit the State respondents stated thus:- In para 19 of the said counter affidavit the State respondents stated thus:- "19. The petitioner shifted the North East corner of the boundary wall from the encroa-ched boundary line to petitioner's own land shifting the North East corner of the boundary wall keeping 2 ft 1 inch (in the north side) outside. Due to this alignment of the wall the total area of shifting within his own land is about 37 Sq. ft. Since the petitioner is the owner of the aforesaid area about 37 Sq. ft. , it does not vest in the State automatically. To acquire the said piece of land the Government has to pay compensation to the petitioner. Whereas even after the alignment of the South East corner of the boundary wall remains inside the Government land thereby the petitioner is still encroaching about 27 sqft of Government land. " 18. 3. AMC has conceded that the petitioner already vacated the Govt. khas land. To controvert it, the State respondents in support of their contention, as reproduced above, relied on inquiry report but produced no document. Even if the contention of State respondents is accepted, the petitioner is found to have vacated jote land from their occupation more than the khas land in their occupation and made the line horizontal. Be that as it may, the petitioner cannot occupy any portion of the govt. khas land save and except due process of law, even if it is oblique in position, the petitioner is to vacate the govt. land and to keep their occupation in their jote land only. I find no justification for the respondents to refuse occupation certificate to the petitioner on this ground. (19) Issue of car parking: 19. 1. Rule 50 of the Building Rules prescribes the provision of car parking space in a building within a plot. Sub Rule (1) and (4) are relevant for consideration of the petitioner's case which reads thus:- "50. Provision of parking space for a building within a plot:- (1)Generally- (a) the minimum size of a car parking space shall be 2. 40 metres X 4. 50 metres and that for a truck or bus parking space shall be 3. 75 metres X 10. 00 metres. These spaces do not include the area of circulation internal roads, aisles and driveways. The minimum width of an internal circulation road shall be 3. 50 metres for cars and 5. 00 metres for trucks. (b) in calculating the number of parking Spaces as per the norms laid down sub-rule (2), (3), (4), (6), (7) or (8) hereinafter the covered area shall be the same as the total covered area of the building but shall exclude the area of covered parking spaces, if any;(c) the parking lay-out plan shall be so prepared that the parking space for each vehicle becomes directly accessible from the drive-way or circulation drive-way or aisles. This clause shall not be applicable to residential building up to 14. 0 metres in height; (d) the open spaces within the plot may be allowed to be utilized for car parking spaces open to the sky provided that the minimum front, rear and side open spaces prescribed in rule 49 shall be kept free from parking;(e) for areas with different occupations in a building the number of parking spaces shall be worked out on the basis of each of the occupancies separately and total number of parking spaces required for the building; (f) in case of a plot containing more than one building. Parking requirement shall be calculated for each building separately, on the basis of use of each building;(g) in calculating the areas different tenements or different occupancies in the same building or different units of the same occupancy in a building, the areas of common spaces of any floor, which are included in the calculation of the total covered area shall be distributed proportionately amongst the different units or tenements; (h) for plots in a scheme for economically Weaker Section and Law Income Group Housing under Government approved schemes, the parking requirement shall be as indicated in Rule 54/special Chapter-XIII. (i) for plots with means of access of less than 3. 50 metres in width, car parking space may not be provided. " " (4) For mercantile (retail) occupancy, car parking shall be subject to the following provisions (parking space includes spaces for parking of cars, two-wheelers, three-wheelers, bi-cycle etc.)(a) no car parking space shall be necessary up to a total covered area of 50. 00 sq. meters; (b) for covered area above 50. 00 sq. meteres- 1 (one) car parking space plus 1 (one) additional car parking space for every additional 100. 00 sq. metres of covered area shall be necessary. "19. 2. By letter dated 24. 04. 2007 (Anne-xure-4 to the writ petition) the Municipality at first asked the petitioner to make provision for 39 car parking. Later on, based on the technical clearance and the assessment made by Jadavpur University, the requirement came down to 31 nos. Jadavpur University made the assessment of total area of the building measuring 2425. 90 Sqm. and determined that the requirement was for 20 + 9 = 29 nos. of car parking. After taking into consideration the additional requirement they specified for 31 nos. of car parking. According to the technical clearance a further plan showing the specification was submitted and it was contended by the petitioner that in two of the parking spots, the vehicle cannot be parked or taken out directly but accessible from circulation drive away, aisles. A physical verification was taken up after the court's order was passed regarding the spaces of car parking and respondent No. 4 by Annexure R-3 to the additional counter affidavit , vide letter dated 31. 05. 2011 has made it clear (which is already reproduced earlier) that provision for 31 car parking has already been made. In para 4 of the counter affidavit , the Municipality stated thus:- "4. That it was further found that the petitioner has made provisions of parking of 31 Nos. of trucks at different places in the ground floor as was understood from the sketch map submitted by the Regional Director of the petitioner with his letter No. F. 4/rv/misc/aro/rd/d-2789 dated 24. 05. 2011 but that parking place did not match with the revised plan given by the Jadavpur University. " (20) It is abundantly clear from the above statement of the Municipality that the petitioner has made spaces for 31 car parking as required under the Rules and specified by the technical clearance certificate issued by Jadavpur University. Some sorts of adjustment have been made regarding the last two car parking spaces where direct entry and taking out of the car not possible. This is negligible and may not be attached with undue importance to deprive the petitioner from using the building. (21) Learned counsel of both side referred numerous case laws. On going through the same, I am of considered opinion that most of those decisions have no bearing at all in the facts and circumstances of this case. Mere citing of a decision without looking into the factual matrix of the reported case and the case at hand is of no use at all. The Supreme Court in the case of Haryana Financial Corporation Vs. M/s Jagadamva Oil Mills reported in (2002)3 SCC 496 : AIR 2002 SC, 834 has observed that the court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclid's theorems nor as the provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statute. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes; their words are not to be interpreted as statutes. (22) In view of the discussions made above, it is found :- (i) The petitioner purchased a plot of jote land by the side of Shakuntala road and in front of that jote land by the side of the road, after the drain, there was some khas land situated obliquely which was in possession of the vendor of the petitioner and the petitioner got possession of the same from his vendor. (ii) The petitioner after purchase of the land prepared a building plan through an authorized Building Planner of the Municipality namely Creative Forum Pvt. Ltd. and submitted the building plan to the respondent Municipality on 24. 4. 2006 with a request to accord approval of the plan. (iii) Within the prescribed period of 60 days as per Section 125 of the Municipal Act, approval/sanction neither accorded nor refused and thereby entitled the petitioner to proceed with the construction work. (iv) While the construction was substantially in progress, the respondent Municipality by its letter dated 24. 04. 2007 asked the petitioner to arrange car parking spaces, rain water harvesting and to clear up the area measurement defect. (v) The petitioner was asked to obtain technical clearance from Jadavpur University and that was obtained twice and submitted to the Municipality. (vi) The controversy regarding occupation of khas land in the front side of the building by the side of the road has been removed. (vii) The specification of 31 car parking spaces has already been substantially arranged as admitted by the Municipality. (23) Under the circumstances, this court is constrained to ask the respondents to issue occupancy certificate to the petitioner within 15 days from today. In the event of failure of the respondents to do so, the petitioner should be presumed to have obtained such certificate and shall be entitled to occupy the building without any hindrance from the part of the respondents. (24) The petitioner should vacate the govt. khas land if any, whatever may be the area at once. (25) The State respondents since found to have usurped the authority of the Municipality and since unduly interfered in the matter, is slapped with a cost of Rs. 10,000/- to be paid within 45 days to the petitioner. (26) The writ petition, is accordingly allowed and stands disposed of.
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