HOTEL SEA GULL v. STATE OF WEST BENGAL AND ORS

Citation: [2002] 2 S.C.R. 576

Court: Supreme Court of India

Bench: V.N. KHARE, ASHOK BHAN, D.M. DHARMADHIKARI

Judgment text

HOTEL SEA GULL v. STATE OF WEST BENGAL AND ORS. MARCH 19, 2002 [V. N. KHARE, ASHOK BHAN AND D. M. DHARMADHIKARI, JJ. ] Urban Development : West Bengal Town and Country (Planning and Development) Act, 1979: Section 46-Permission for development-Construction ofsecondfloor over existing building-Held: Such construction amount~ to "building operations" and thus "development"-Hence, permission is clearly required for development ofthe existing building. Section 46(3)(i)(b)-Permission for development-Development p/an- Non-existence of-Held, Permission is required even when development plan has not come into operation. Section 51-Permissionfor development-Revocation and modification of-Held, no duty is cast upon the owner to intimate the planning authority about the existence ofhis planning permission-It is the duty ofthe planning authority to issue notice to the owner before revoking or modifying the planning permission already in existence.

Section 51(2)-Compensation-Payment of- Held, Planning Authority is not liable to pay compensation for demolition of unathorised construction. Section 13 7(2)-0verriding effect of-Sanction for development- Obtained under some other /aw-Validity of-Held, fresh approval under S. 46(1) is required to be taken-Earlier sanction is not valid Section 51and137(2)-Scope and ambit of-Held, there is no conflict between Ss. 51 and 137(2)-They operate in two separate fields without interfering with each other. Words & Phrases: "Building operations"-Meaning of-In the context ofS. 2(3) ofthe West HOTEL SEAGULLv. STATE 577 Bengal Town and Country (Planning and Development) Act, 1979. "Development"-Meaning of-ln the context ofS. 2(7) ofthe West Bengal Town and Country (Planning and Development) Act, 1979. "Expedient"-Meaning of-In the context S. 51(1) of the West Bengal Town and Country (Planning and Development) Act, l 979.

The appellant-Hotel was sanctioned a plan by the Gram Panchayat to construct 5 storeys (Ground floor+ 4 floors). Pursuant to the said plan the hotel comprising of the ground floor and first floor was constructed. Subsequently, the appellant started construction of the second floor on the existing hotel building. Respondent No. 2 issued notices under Sections 53(1) and 54 of the West Bengal Town and Country (Planning and Development) Act, 1979 requiring the appellant to demolish the construction of the second floor on the ground that permission for development under Section 46(1) of the Act was not obtained by the appellant. The appellant filed a writ petition before the High Court challenging the aforesaid notices. The High Court considered two points, namely, whether the permission under Section 46 of the Act·was required f?

r development of the existing building or for development of vacant land only; and whether permission for development under Section 46 of the Act was required even. in the absence of the development plan. The High Court decided both the points against the appellant and dismissed the writ petition. Hence this appeal.

On behalf of the appellant it was contended that Section 46 of the Act provided for planning permission being obtained only to new constructions to be made on vacant plots or additions or alterations to be made to the existing buildings where no planning permission had already been obtained; that Section 46(1) had no application whatsoever to cases where planning permissions had already been obtained prior to the new law coming into force; that it was the duty of the planning authority to ascertain and take steps by issuing a notice to the owner before revoking or modifying the planning permission already in existence; and that the planning authority was liable to pay compensation to the appellant under Section 56(2) for demolishing the construction of the second floor.

On behalf of the respondents it was contended that raising a further construction over the existing first floor of the Hotel building amounted to building operations under Section 2(3) and thus development under Section 2(7) and, therefore, permission under Section 46(1) was required for construction of the second floor; that Section 137(2)(b) had an overriding effect and, therefore, permission obtained from the Gram Panchayat was invalid and of no avail. Dismissing the appeal, the Court HELD : l. A combined reading of Sections 2(3), 2(7) and 46(1) of the West Bengal Town and Country (Planning and DcvelopmenO Act, 1979 leaves no manner of doubt that the raising of further construction over the existing first floor of the hotel building clearly amounts to "building operations", and is thus "development" in, on, over, the land in. question.

More particularly, when the same amounts to material alteration and enlargement of the existing building and roofing of the same within the meaning of sub-sections (3), (7) and (12) of Section 2 and Section 46 of the Act. That being so, permission under Section 46 is clearly required for development of the existing hotel · building. [588-C] 2. It is clear from Section 46(3)(i)(b) that the concerned authority while dealing with an application for permission is to have regard to the provisions of the development plan, if it has come into force, if not, then any other material consideration, obviously implying that Section 46(1) would be applicable even when development plan has not come into operation. [589-AI 3.

Section 51(1) of the Act indicates that power for revocation and modification of permission is with regard to "development plan" already prepared or "under preparation" or to be prepared and_to any other material consideration implying thereby that the permission to develop under the Act would be required even when the development plan is under preparation or to be prepared. It does not indicate that the permission under Section 46 would not be required in the absence of a development plan in a particular area. [589-D] 4. 1. Construction of the second floor over the existing first floor of the hotel building clearly amounts to building operations and is thus development in, on, and over the land in question. The appellant was, therefore, required to take permission before carrying out building operations/development of the second floor over the existing first floor of the hotel building. [589-F] 4. 2.

The word "expedient" occurring in Section 56(1) of the Act authorising modification and revocation under the circumstances would comprehend whatever is suitable and appropriate for any reason for the HOTEL SEAGULLv. STATE 579 accomplishment of the specified object [590-DI Webster's Encyclopaedic Unabridged Dictionary ofthe English Language; and Words and Phrases (Permanent Edition), Vol. 15A, referred to. 5. 1. Under Section 51 no duty is cast upon the owner to intimate the planning authority about the existence of his planning permission and then leave it to the planning authority to decide whether to initiate steps to revoke or modify or not to revoke or modify the planning permission. It is the duty of the planning authority to ascertain to take steps by issuing a notice to the owner before revoking or modifying the planning permission already in existence.

But present matter is not a case where the planning authority in exercise of its power under Section 51 seeks to revoke or modify the permission already granted because of expediency in achieving the objects of the Act It is being done because the construction being put up was against the interim provisions of the development plan under preparation. [590-E-FJ 5. 2. If the planning authority had asked the appellant to demolish the ground and the first floor then it was liable to pay compensation to compensate the owner under Section 51(2), if at all, and not where the notice has been . 1 issued asking the owner to stop the unauthorised construction, which was being put up. [591-DJ 6. 1.

After the application of the Act to the land in question any sanction obtained from the Panchayat, which ran contrary to the interim provisions of the development plan under preparation could not continue by reason only of the fact that permission, approval or sanction under any other law for the development had been obtained. Fresh approval was required to be taken. Otherwise it would be negation of provisions of Section 137{2)(b). [591-HJ 6. 2. There is no conflict between Sections 51 and 137(2). They operate in two separate fields without interfering with each other. [592-AJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6898 of 1994. From the Judgment and Order dated 13. 10. 93 of the Kolkata High Court in F. M. A. T. No. 1 of 1993. K. K. Venugopal, A. Agarwala, K. V. Vishwanathan, J. Anand and K. V. Vijayakumar for the Appellant. Raj Kumar Gupta, Sheo Kumar Gupta, A. N. Baradaiyar, Vishwajit Singh, .. ,.. _ T.

-' purposed'; practical and efficient; as, an expedient change of policy; an expedient solution of a difficulty; hence, advantageous. )'he word 'expedient' occurring in the statute authorising modification, revocation under the circumstances would comprehend whatever is suitable and appropriate for any reason for the accomplishment of the specified object. ......... Mr. Venugopal is right in his submission that under Section 51 no duty is cast upon the owner to intimate the planning authority about the existence of his planning permission and then leave it to the planning authority to decide whether to initiate steps to revoke or modify or not to revoke or ' modify the planning permission. It is the duty of the planning authority to l ; ascertain to take steps by issuing a notice to the owner before revoking or ymodifying the planning permission already in existence. But .

present is not the case where the planning authority in ex_ercise of its power under Section 51 seeks to revoke or modify the permission already granted because of expediency in achieving the objects of the Act. It is being done because the construction being put up was against the interim provisions of the development plan under preparation. t \ A Section 51(1) talks of revocation or modification of _the permission which is in accordance with the provisions of the 1979 Act or any other law and not to the cases where the development is being carried out in l:= contravention ofa development plan or a development plan under preparation. Para 8(1) of the interim provisions specifically says that no development can be permitted or allowed from the high tide line of sea and in the case of ... HOTEL SEA GULL v. STATE [BHAN, J. ] 591 existing building any further development could be permitted to continue only after talcing approvaf from the authority.

Section 51 does not talk of the building operation or development which is contrary to the development plan or to interim provisions of development plan under preparation. In this case the notice was issued as soon as the construction of second floor commenced. Notices have not been issued for the demolition of the ground and first floor. Proviso to Section 51 (1) would therefore not apply. Sub-clause (2) of Section 51 would also not apply because in terms of the such provision when any such permission is revoked or modified, the expenditure incurred in carrying out the works has to be assessed and offered to the owner from the public exchequer only if the owner suffers any loss due to any expenditure incurred in carrying out the works after the grant of permission which had been rendered abortive by reason of "°odification or revocation.

If the planning authority had asked the appellant to demolish the ground and the first floor then it was liable to pay compensation to compensate the owner under Section 51 (2), if at all, and not where the notice has been issued asking the owner to stop the unauthorised construction which was being put up. Under the circumstances, either of the sub-clauses (1) or (2) of Section 51 would not be applicable and come into operation in the present case. Section 51 operates in a totally different field. Section 137 has an overriding effect. It provides that the provisions of the Act and the rules and regulations made thereunder would have effect notwithstanding anything inconsistent therewith contained in any other law. Sub-section (2) also starts with a non-obstante clause "notwithstan'ding anything contained in any other law".

Clause (b) of sub-section (2) of Section 137 provides that when permission for such development has not been obtained under the Act, such development shall not be deemed to be lawfully undertalcen or carried out by reason only of the fact that permission, approval or sanction required under any other law for such development has been obtained. The case ofthe appellant is that they have obtained permission from the Panchayat under the Panchayat Act and therefore permission continues to be valid even after the coming into force of the 1979 Act. We do not agree with this submission. After the applicability of the Act to Mouza Gobinda Basan with effect from 20th November, 1990, any sanction obtained from the Panchayat which ran contrary to the interim provisions of the development plan under preparation could not continue by reason only of the fact that permission, · approval or sanction under any other law for the development had been obtained.. Fresh approval was required to be taken.

Otherwise it would be negation of provisions of clause (b) of sub-section (2) of Section 137. There is no conflict between Section 51 and Section 137(2) as has been contended by the counsel for the appellant. They operate in two separate fields without interfering with each other. I The High Court had also examined the case in the context of certain I other provisions ofthe 1979 Act, but since no arguments have been addressed I on those provisions and findings recorded by the High Court thereon, we are not dwelling on the same. For the reasons stated above we do not find any merit in this appeal and dismiss the same in terms of the order passed by the High Court, which is quoted below. Wherever the words 'writ petitioner' occurs in the quoted· order the same may be read as the appellant. ".. .

in the interest ofjustice, should be given an opportunity to apply for permission· under Section 46 of the Act for making further construction upon the existing hotel building in terms of the plan sanctioned/approved by the then competent authority, Pudima II Gram Panchayat, if the same is still in force. Ifany such application is duly and properly filed by\it before the concerned authority, the latter shall dispose of the same according to law by passing reasoned order after ·giving the writ petitioner all reasonable opp~rtunity of being heard. The writ petitioner shall·be at liberty to take all the points pleaded. in the writ petition and any other relevant points it likes before the concerned authority, would deal with the same according to Jaw. We, however, make it clear that we have not expressed any opinion about the merits of the writ petitioner's contentions in the writ application.

In order to enable the writ petitioner to avail itself of the opportunity granted hereunder, the concerned authority shall not give effect to the impugned notice under Section 53 (I) of the Act for a period . of eight weeks from date. The writ petitioner shall also preserve status quo in respect of the existing Hotel building during the aforesaid period. On the failure of the writ petitioner to apply for permission under Section 46 of the Act in terms of the opportunity granted hereunder within the aforesaid period, the concerned authority shall be at liberty to proceed with the matter according to Jaw. If any such application for permission is filed by the writ petitioner within the aforesaid specified period in terms of this order, the authority concerned must ensure that the writ petitioners might be in a position to make payment of development charge as may be assessed under HOTEL SEA GULL v. STATE [BHAN, J.

] 593 Chapter IX, if not already assessed if payable for the purpose for A consideration of the same under Section 46 (2) and for carrying on development by way of further construction on the existing Hotel building in terms of Section 45 of the Act, in case permission is granted therefore under Section 46 (1) of the Act. " The above directions would become applicable w. e. f. 1st April, 2002. B v. s. s. Appeal dismissed.