The grievance of the petitioner is directed against a communication dated September 01, 2015 issued by the Office of the Councilor of the Birnagar Municipality, the respondent no. 6 ("the impugned communication").
By the impugned communication an application dated August 07, 2015 filed by the petitioner for sanction of a building plan had been rejected.
It is alleged on behalf of the petitioner that he had purchased a plot of land on March 15, 2012. An advertisement had been published by the Hindustan Petroleum Corporation Limited ("HPCL") for appointment of Liquid Petroleum Gas ("LPG") distributorship at location, Birnagar, Nadia District. The petitioner had applied for such vacancy and disclosed the aforesaid plot of land for construction of a show room. Admittedly, the land in favour of the petitioner has been duly mutated by the Birnagar Municipality. The petitioner had thereafter been selected on June 30, 2014 and a letter of intent was issued in favour of the petitioner by HPCL. Thereafter, the petitioner had applied for conversion of the land on December 26, 2014 before the Sub-Divisional Land and Land Reforms Officer, Ranaghat. By a communication dated January 27, 2015 the Block Land and Land Reforms Officer, Ranaghat-I had sought for an opinion with regard to the change of character of land belonging to the petitioner. The respondent no. 6, being the concerned Municipality had opined not to allow this conversion. The petitioner was compelled to challenge such opinion of the Municipality and filed a writ petition being W.P.No. 7433(W) of 2015. By an order dated April 01, 2015 this Hon'ble Court passed an order for consideration of the representation of the petitioner.
Being aggrieved by the said order dated April 01, 2015 the petitioner preferred an appeal before this Hon'ble Court. By an order dated June 19, 2015 the Hon'ble Division Bench allowed the appeal and directed the SDL&LRO,Ranaghat to take an appropriate decision without taking any note and without being influenced by the views of the Municipality.
On August 06, 2015 the BL&LRO,Ranaghat-I permitted conversion of the petitioner's land. The petitioner thereafter applied for sanction of the building plan for construction of the show room on the said plot of land with the Birnagar Municipality. By a communication which is now impugned in this proceeding, the Municipality rejected the prayer for sanctioning of the building plan of the petitioner.
A crucial fact alleged by the petitioner is that the Chairman of the Birnagar Municipality being the respondent no. 8 herein is also a LPG Distributor of HPCL located at Birnagar.
It is further alleged in the writ petition that the respondent no. 8 is a business rival of the petitioner. It is also alleged in the petition that the Chairman has been instrumental in stalling the conversion of the land as well as sanction in favour of the petitioner's land with the sole and oblique object to prevent the petitioner from running a rival distributorship in the locality. The further contention of the petitioner is that on the land which is belonging to the petitioner the mother plot wherein the petitioner's land is situated has been divided and further sub-divided and sanctioned building plans have been approved by the Municipal Authorities for construction of 3-4 storied buildings by the respective plot owners.
Thus, it is the specific case of the petitioner that there are no legally tenable grounds in rejecting the prayer for sanction of the building plan and the same has been done for extraneous and co-lateral reasons. The petitioner has further alleged that the impugned communication suffers from misinterpretation of Rule 4 of the West Bengal Municipal Building Rules, 2007 ("the said Rules"). The petitioner further alleges that the Municipality has acted in an arbitrary, unreasonable, unfair and irrational manner in issuing the impugned communication. The petitioner has further alleged that the Chairman of the Municipality has instigated the impugned communication due to business rivalry and to continue his monopoly of the LPG distributorship in the particular location. The petitioner has further alleged that similarly placed and circumstanced persons who are also owner of the plot of land in the same mother plot, have been granted sanction of their respective building plans and they have already constructed 2/3 storied building in those plots of land.
On the basis of the aforesaid submissions, the petitioner has alleged that the impugned communication is liable to be quashed and set aside and a direction should be given to the respondent no. 6 for sanction of the building plan in favour of the petitioner.
The writ petition has been primarily contested by the respondents no. 6, 7, 8 and 9. Mr. Swapan Kumar Datta, Senior Advocate appearing on behalf of the contesting respondents has vehemently contested the arguments made on behalf of the petitioner. It is significant to note that the contesting respondents have filed an affidavit-in-opposition as well as a supplementary affidavit. His primary contentions are as follows-
The cause of action of the writ petition does not survive.(b) The challenge to the impugned communication is not sustainable.
(c) The Municipality cannot sanction a plan contrary to the Building Rules.
(d) The mutation of the plot does not confer any right to get sanction of the proposed plan.
(e) No discrimination has been practiced by the Municipality.
On the basis of the above contentions, Senior Counsel submits that this court should not interfere with the impugned communication. In particular, he has also relied upon a supplementary affidavit wherein it is highlighted that the mother plot is a separate plot and is not the disputed premises in respect of which the petitioner submitted a plan for sanction for construction of a show room which has been rejected by the municipality. In paragraph 4 of the said supplementary affidavit it is also highlighted that 2070 customers of the LPG Gas Agency of the respondent no. 8 have been detagged and those 2070 customers have been tagged with the LPG Gas Agency of the petitioner. Senior Advocate appearing on behalf of the answering respondents also relied upon a decision of the Hon'ble Apex Court in the case of Kuldeep Singh Vs. Government of NCT of Delhi reported in (2006) 5 SCC 702 to contend that Article 14 of the Constitution of India does not envisage negative equality and it cannot be invoked for perpetrating illegality.
I have considered the rival submissions made on behalf of both the parties and the pleadings filed by them.
At the very outset, it is important to bear in mind the fact that a crucial allegation made by the petitioner is that the Chairman of the Municipality is a rival distributor of the petitioner and has set up his own showroom in the Birnagar Municipality. This factor would be vital because it is fair to assume that a Chairman of any Municipality would have some control over the affairs of the Municipality. However, the larger public interest cannot be overlooked which requires that a larger section of the public be benefited by an additional distributorship of LPG in the locality. The private motives of the Chairman cannot and ought not to cloud the decisions or the decision making process of the Municipality. This is a vital factor which in my view cannot be ignored. I also fail to understand the emphasis placed by the answering respondents in paragraph 4 of the supplementary affidavit on the fact that 2070 customers of LPG Agency of the Chairman of the Municipality being the respondent no. 8 have been de-tagged and tagged with the petitioner. This is an extraneous and irrelevant factor in assessing the validity and legality of the impugned communication. Hence, I am of the view that the consideration of the respondent no. 8 being a business rival in the facts and circumstances of the instant case cannot be glossed over.
Another crucial fact which is integral to this case is that the mother plot where the petitioner's land is situated has been divided into several plots. The other sub-divided plot-holders had applied to the Municipality for sanction of building plans. The Municipality had considered their case and had granted sanction. In fact, the Municipality had granted sanction to at least seven sub-divided plot owners. It would be fair to assume that the Municipality had applied its mind at the time of grant sanction to those seven plot owners as to the prior permission for subdivision of the plot concerned. Senior Counsel appearing on behalf of the respondents no. 6, 7, 8 and 9 admits that such permission has been granted to the different plot owners. However, it is further contended that this permission was granted inadvertently and not in accordance with law. He further submits that they have cancelled those sanction of building plan but no order of demolition has yet been taken or passed against those plot owners.
It is now necessary to advert to the impugned communication. The grounds for rejection for sanction of the building plan of the petitioner are as follows:-
(a) No site plan in Form A was submitted for approval before submission of the building plan under Rule 4 of the said Rules.
(b) No application in Form B enclosing required documents has been made.
(c) The level of the land is much lower than the level of the crown of the nearest Public Street.
(d) No permission from the Municipal Authority was taken while such division of mother plot (the plot in question being a small part of the mother plot). Hence, it attracts the provision of Rule 9 of the said Rules.
(e) As the site in question is considerably away from State High Way No. 11, there is no approach road leading to the site as per records of the Municipality.
(f) The roads/path way shown in the plan is also segment of the mother plot and the pathway is illegal and void under Rule 9 of the said Rules.
(g) The plan does not contain the drainage system through which water may pass.
The aforesaid are the primary grounds for rejection of the sanction of the building plan of the petitioner as spelt out in the impugned communication.
On perusal of the concerned Rule, I find that the first ground is without any substance. The Rule does not require a site plan to be submitted prior to submission of the building plan for sanction. Accordingly, it is appropriate that the applicant files the site plan along with the building plan so that both can be considered with each other. I am of the view that the said Rule does not contemplate that the site plan should be made available for the purpose of consideration of the sanctioned plan. In any event, the site plan is available with the Municipal Authorities.
The next ground of rejection is that the application in Form-B enclosing documents has not been made, I find this ground also without substance or merit. It is for the Municipal Authorities to issue the Form -B. In issuing Form B, the petitioner will have to comply with such requisition and will thereafter submit the requisite documents.
The next ground for rejection is that the level of the land is much lower than the level of the crown of the nearest Public Street. There is nothing in the affidavit or otherwise whereby the respondent authorities have been able to demonstrate or substantiate as to how this ground is relevant or of any significance in the grant of a proposed sanction plan in favour of the petitioner.
The other ground for rejection is that, no permission from the Municipal Authorities was taken whilst such division of the mother plot (the plot in question being a small part of the mother plot) occurred. Thus, it is submitted on behalf of the contesting respondents that it attracts the provision of Rule 9 of the said Rules. This ground is also an afterthought and without any substance. On the contrary, in the light of the supplementary affidavit that has been filed there is a clear contradiction in paragraph 2 of the supplementary affidavit and the grounds contained in the impugned communication.
The other ground for rejection is also meritless as it concerns the petitioner's enjoyment of his land and is not the concern of the Municipality.
The other ground for rejection has no merit and concerns roads/pathway shown in the plan which is a part of the mother plot. Such a ground can possibly give no basis in law for rejecting the sanction plan of the petitioner and is also contrary to the earlier grounds urged by the petitioner.
The other ground for rejection is that the plan does not contain the drainage system through which water may pass. This ground has not been substantiated by the answering respondents.
I also do not find any substance in the submission of the contesting respondents that the cause of action of the petitioner does not survive. Even if the petitioner has constructed a showroom at a different location it cannot be contended that the cause of action of the petitioner to assail the impugned communication has become infructuous. Secondly, there is nothing that the contesting respondents have been able to show as to how there has been or will be infraction of any of the said Rules if the sanction plan is approved in favour of the petitioner. In so far as the contention of the contesting respondents is concerned, that mutation of the plot does not confer any right to get a sanction plan, I have no quarrel with this proposition nor has the petitioner urged this as a proposition of law. Additionally, the decision reported in (2006)5 SCC 702 has no application to the facts of the instant case and is clearly inapposite.
Furthermore, on a perusal of the affidavit filed by the contesting respondents, I do not find any grounds to substantiate the issuance of the impugned communication. The contesting respondents have nowhere denied that other plot owners of the mother plot have been accorded and granted permission and they have also constructed in their respective plots. Additionally, the fact that the respondent no. 8 being the Chairman of the Mu
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nicipality is also a rival distributor of HPCL in the same area is also not disputed by the contesting respondents. For the foregoing reasons, I am of the view that the impugned communication dated September 01, 2015 suffers from the vice of arbitrariness and unreasonableness and is liable to be struck down. In view of the above discussion, I am of the view that the petitioner has been able to make out a strong prima facie case. I am also of the view that the impugned action of the Municipal Authorities is lacking in bonafides. The impugned communication dated September 01, 2015 (being Annexure P-21 at page 111 of the writ petition) is quashed and set aside. The Municipal Authorities are forthwith directed to sanction the building plan submitted (along with enclosures) by the petitioner within 3 (three) weeks from the date of this order. It is needless to mention here that the Municipal Authorities will issue Form B within 7 (seven) days from the date of receipt of this order. In view of the observations and directions this writ petition being W.P.No. 26113(W) of 2015 stands allowed. There will be, however, no order as to costs. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. Later After pronouncement of this order Mr. Swapan Kumar Datta, Senior Advocate appearing on behalf of the respondents no. 6, 7, 8 and 9 prays for stay of this order. Such prayer is well considered and outrightly rejected.