STA TE OF WEST BENGAL ETC.versusTERRA FIRMA INVESTMENT AND TRADING PVT. LTD.

                      STATE OF WEST BENGAL ETC.                               A
                                     v.
       TERRA FIRMA INVESTMENT AND TRADING PVT. LTD.

                          NOVEMBER 15, 1994

                  [A.M. AHMADI AND N.P. SINGH, JJ.)                           B

     Municipalities

     Calcutta Municipal Corporation (Amendment) Act, 1990 amending the
 Calcutta Municipal Corporation Act, I 980-0ne year ban on submission of
 plans/or high rise buildings-Validity of                                     C
      The Calcutta Municipal Corporation Act, 1980 came into (orce on
 4.1.1984 by which the earlier Calcutta Municipal Act 1951 was
 repealed. Though power has been conferred on the State Government
 to make rules, till December 1990, n~ Building Rule under the Act was
 made. By virtue of Section. 635 (2) (t) of the Act, Schedule XVI of the D
 earlier Act which contained the Building Rules continued to remain in
 force under the Act.

       The old Building Rules were found to be not suitable and
  appropriate for the construction of the buildings, particularly, high -
  rise ones. So a decision was taken to frame new Building Rules to           E
  regulate indiscriminate growth of constructions of buildings in
  Calcutta. The State Government formed an Expert Committee,
  consisting of Secretaries of Departments concerned as well as the Chief
  Government Architect, Public Works Department, and the Municipal
  Commissioner of Calcutta for framing the new Building Rules. After          F
  thorough and exhaustive consideration by the Expert Committee, the
  Draft Building Rules were finalised, which were modified in the .light of
  representations, suggestions and objections received from various
· quarters. Various proceedings were initiated in the High Court of
  Calcutta in which ex-parte orders of injunction were granted
  restraining the State Government from publishing the Rules in               G
  question. In the meantime, mere and more applications continued to be
  submitted to the ~alcutta Municipal Corporation for sanction of high-
  rise buildings under the old Building Rules. As the Assembly was not in
  session, an ordinance was passed imposing a ban on the submission of
  building plans for high-rise construction for a period of one year,
  within which period it was expected that the new Rules shall come in        H
                                    485
    486                    SUPREME COURT REPORTS        [1994] SUPP. S S.C.R.

A   force. The Ordinance aforesaid was replaced by the 1990 Amending
    Act.

        The injunction orders passed by the High Court were vacated and
    the new Building Rules were published in the Official Gazette on
    12.12.1990.
B
        A writ petition was filed by the respondent challenging the
    constitutional validity of the Amending Ordinance, which was later
    replaced by an Amending Act of 1990. Single Judge came to the
    conclusion that the said writ petition had become infructuous, in view
    of the expiry of the period of one year during which the ban was
C   imposed. On appeal, Division Bench held that the Amending Act was
    unconstitutional, and directed the Calcutta Municipal Corporation to
    dispose of all applications for sanction of building exceeding 13.S
    metres in height pending as on 18.1:2.1989 in accordance with law, i.e.
    the Building Rules as in force on that date and not the Rules which
    have come into force later. Hence these appeals by the State of West
D   Bengal and the Calcutta Municipal Corporation.

          Allowing the appeals, this Court

         HELD: 1. Normally, it is not for the courts to examine the building
    regulations framed by Development Authorities, Improvement Trusts
E   and other statutory authorities entrusted with such power under
    different Statutes unless any of such Rule or bye-law can be held to be
    beyond the power vested in them by the statutes concerned, or is held
    to be hit by any of the provisions of the Constitution. The authorities
    who have been entrusted with the duty of framing the building laws
    and bye-laws, are expected to apply their mind not only to the existing
F   situation prevailing in any metropolitan city or in an urban area, but
    they have also to keep an eye and foresee the situations which may arise
    in the next century or even later, because the development of a city or
    an urban area is to last for centuries. (491-H, 492-A-B)

         2. Admittedly, the period of one year was over when the writ
G   petition was heard by the single Judge. Thereafter the _respondent and
    others were entitled to submit fresh plans for construction of multi-
    storeyed buildings according to the new Building Rules. The new
    Building Rules ·had been framed by an Expert committee and after
    consideration of different objections 'from different sections. By mere
    submission of a plan for construction of a building which has not been
H   passed by the eompetent authority, no right accrues. The High Court
         STATE v. TERRA FIRMA INVESTMENT [N.P. SINGH, J.]             487

should have examined this aspect of the matter as to what right the A
respondent had acquired by submission of the plan for construction of
the high-rise building before its application w.as rejected by a
statutory provision. (493-G-H, 494-A-B)

     3. It is well settled that no malice can be imputed to the legislature.
Any legislative provision can be held to be invalid only on grounds like B
legislative incompetence or being violative of any of the constitutional
provisions. The respondent could not point out any infirmity in the
Amending Ordinance/Act, but only referred to different proceedings
and resolutions of the Expert Committee, which has no bearing so far
as the provisions of the Amending Ordinance/Act are concerned. In any
case while judging the validity of the Amending Ordinance/Act, the C
proceedings of the meeting of the Expert Committee have no bearing or
relevancy. The High Court was in error in declaring the provisions of
the Amending Ordinance/Act as unconstitutional and invalid~
                                                             (494-C, D, H)

    Usman Gani J. Khatri of Bombay v. Cantonment Board and Others,           D
(1992) 3 sec 455, relied on.

    CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4832 of
1992 etc.

    From the Judgment and Order dated 3.3.92 of the Calcutta High Court E
in A. No. 21of1991.

    H.K. Puri and S.K. Puri for the Appellants.

    H.N. Salve, Utpal Mazumdar and Ms. Sarla Chandra for the
Respondents Nos. 1-7. in C.A. Nos. 4832 and 4834/92.
                                                                             F
    Bhola Pd. Singh (N.P.) forthe Respondents. Nos. 1-6, 9-12.

    The Judgment of the Court was delivered by

    N.P. SINGH, J. Two appeals, one on behalf of the State of West
Bengal and the other on behalf of the Calcutta Municipal Corporation, have   G
been filed against the same judgment of the Calcutta High Court.

     By the impugned judgment, the High Court has held that Calcutta
Municipal Corporation (Amendment) Act, 1990 (hereinafter referred to as
'the Amending Act') was unconstitutional and a direction has been given to
Calcutta Municipal Corporation to proceed to sanction the applications for   H
    488                    SUPREME COURT REPORTS            (1994] SUPP. 5 S.C.R.

A   proposed construction of buildings raising above 13.5 metres in height
    which were pending on 18.12.1989, in accordance with the Building Rules
    which were applicable on that date.

         The Calcutta Municipal Corporation Act, 1980 (hereinafter referred to
    as 'the Act') came into force on 4.1.1984 by which the earlier Calcutta
B   Municipal Act 1951 was repealed. Under the Act, power has been conferred
    on the State Gov.ernment to make rules for all or any of the matters
    connected with the Act, but till December 1990, no Building Rule under the
    Act could be made. By virtue of Section 635 (2) (f) of the Act, Schedule
    XVI of the earlier Act which contained the Building Rules continued to
    remain in force under the Act.
c
         It is the case of the .appellants that Government of West Bengal felt the
    necessity of framing new Building Rules under the Act tCI cope with the
    present day problem of the Calcutta's urban growth and civic existence
    keeping in view the accentuating traffic congestion, dearth of open space,
    lack of suitable facility of the sewerage and sanitation and other amenities.
D
    The o}d Building Rules were found to be not suitable and appropriate for
    the construction of the buildings, particularly, high-rise ones. So a decision
    was taken to frame new Building Rules to regulate indiscriminate growth of
    constructions of buildings in Calcutta. With that object, the State
    Government formed an Expert Committee, consisting of Secretaries of
E   different concerned Departments, as well as the Chief. Government
    Architect, Public Works Department, and the Municipal Commissioner of
    Calcutta for framing the new Building Rules. It is said that after thorough
    and exhaustive consideration by the Expert Committee, the Draft Building
    Rules were finalised, which were modified in the light of representations,
    suggestions and objections received from various officials and non-officials
F   quarters by the State Government. Before such Rules could be brought in
    force, different proceedings were initiated in the High Court of Calcutta in
    which ex~prate orders of injunction were granted restraining the State
    Government from publishing the Rules in question. In the meantime, more
    and more applications continued to be submitted to the Calcutta Municipal
G   Corporation for sanction of high-rise buildings under the old Building
    Rules. As there was no chance of proceedings pending before the High
    Court being disposed of, a decision was taken by the State Government to
    impose a ban on the submission of building plans for high-rise construction
    for a period of one year within which period it was expected that the new
    Rules shall come in force. As the legislature was not in session, Calcutta
H   Municipal Corporation (Amendment) Ordinance 1989 was promulgated
             STATE v. TERRA FIRMA INVESTMENT [N.P. SINGH, J.]             489

    with effect from 18.12.1989 by which a new Section i.e. Section 398A was A
    introduced into the Act, which is as follows:

                   "398A. (1) Notwithstanding anything contained in this Act
                   or in any other law for the time being in force, with effect
                   from the date of coming into force of the Calcutta
                   Municipal Corporation (Amendment) Ordinance, 1989 B
                   (hereinafter referred to in this section as the said Ordinance)
                   and for a period of one year from such date (hereinafter
                   referred to in this Section as the said period), no person
                   shall apply for sanction of any plan to erect a building
                   exceeding thirteen and a half metres in height.
                                                                                 c
                   (2) Any application for sanction of any plan to erect a
                   building exceeding thirteen and a half metres in height,
                   submitted by any person--

                   (a) before the coming into force of the said Ordinance and
                   lying pending for such sanction on the date of coming into D
                   force of the said Ordinance, or

                  (b) at any time during the said period, shall stand rejected
                  forthwith.

                   (3) Any person whose application for sanction of any plan E
                  .to erect a building exceeding thirteen and a half metres in
                   height stands rejected under sub-section (2), may apply
                   afresh for such sanction in accordance with the provisions
                   of this Act and the rules made thereunder on the expiry of
                   the said period.
                                                                                 F
                   (4) Any fee paid by any person along with his application
                   for sanction of any plan to erect a building exceeding
                   thirteen and a half metres in height which stands rejected
                   under sub-section (2), shall, at his option, be refunded to
.                  him or adjusted towards the fee payable· by him for fresh
                   application for- such sanction under sub-section (3)."        G
        In view of sub-section ( 1) of the section aforesaid, for a period of one
    year no application could be made for sanction of high-rise building beyond
    13.5 metres. Sub-section (2) of Section 398A provided that the applications
    for such sanction which were pending on the date when the Ordinance
    came into force would stand rejected. Sub-Section (3) said that fresh H
    490                    SUPREME COURT REPORTS            [1994) SUPP. 5 S.C.R.

A   application of sanction should be made for such high-rise construction after
    the period of one year was over. The Ordinance aforesaid was replaced by
    the aforesaid Amending Act.

        During the period of one year with effect from 18.12.1989 the·
    injunction orders passed by the Calcutta High Court were vacated and the
B   new Building Rules (hereinafter referred to as 'the Building Rules') were
    published in the Official Gazette on 12.12.1990.

         A writ petition had been filed by the respondent challenging the
    constitutional validity of the Amending Ordinance, which as already stated
    above was later replaced by an Amending Act of 1990. A learned single
c   Judge came to the conclusion that the said writ petition had become
    infructuous, in view of the expiry of the period of one year during which a
    ban had been imposed on making applications for sanction of any plans to
    erect a building exceeding 13.5 metres in height. The respondent filed an
    appeal against the judgment aforesaid. The Division Bench allowed the said
    appeal of the' respondent saying that, an ad-hoc legislation imposing
D   embargo on high-rise construction for a year was pointless. The haste
    inherent in ~iich legislative embargo was also bound to create
    discrimination arid other maladjustments. It was said that the Ordinance had
    been profess~dly promulgated to check unplanned and uncontrolled
    development of high-rise structures, but any such legislative check should
    have been imposed only after in-depth study of the various factors involved
E   in the problem. The learned Judges were also of the opinion that any such
    measure should have been prospective and should not have affected the
    cases pending for sanction, otherwise it was bound to lead to irrational
    discrimination. It was also pointed out that structures within the vertical
    limit may be more injurious to the city than the horizontal structure which
F   had not been taken note of by the legislation. They were also of the opinion
    that the ban being absolute and extending toAbe entire city without any
    power of relaxation was patently unreasonable. The Amending Act was
    held to be unconstitutional. A direction was given to the Calcutta Municipal
    Corporation to dispose of all applications for sanction of building
    exceeding 13 .5 metres. in height pending as on 18.12.1989 in accoroance-       .
G   with law, i.e. the Buildlng Rules as in force on that date and not the Rules
    which have come into force later.

        Village life in India during the British Rule remained self-sufficient
    and maintained only limited contacts with .the towns and cities. For most of
    the villagers, the urban environment was alien, unfriendly and alienating.
H   This was one of the principal reasons for low rate of urbanisation during the
          STATE v. TERRA FIRMA INVESTMENT [N.P. SINGH, J.]               491

British Rule. After independence and with sudden rise in the population, A
there was influx of people from rural areas to different towns and cities.
Then it was felt that problems caused by such migration could be tackled
and solved only by planned growth of the urban sector. There is no halt to
this migration problem. This has resulted in deterioration of the living
condition in big towns. In most of the States, different Acts have been
enacted to contain this threat and challenge. Master Plans for development B
of areas; Zonal Developmental plans for each of the zones have been
framed; to control the use of land for various purposes, by acquisition,
development and disposal of land.

     With the new phenomenon of migration of millions from rural areas to
the citi~s, a challenge has been thrown to those who have to look after the C
planned growth of the cosmopolitan cities and urban areas, as to how to
strike a balance between cry for a roof and restricting the areas from being
converted into slums by unplanned and mushroom growth of buildings.
With that object in view, different Improvement Trusts, Development
Authorities and Municipal Corporations have been from time to time
replacing the Building Rules in respect of the future growth of different D
metropolitan cities and urban areas. The task obviously is not very easy.
The experience of the courts have been that there is no unanimous opinion,
even in respect of one issue-whether the growth should be allowed to be
vertical or horizontal. The controversy in the present case appears to be
result of this conflict.
                                                                                E
     It is well known that Calcutta is one of the oldest metropolitan city in
this country with a population unknown to other part of the country. In this
background, any decision taken by the Municipal Corporation in respect of
the construction of high-rise buildings has to be taken cautiously and after
due deliberation. Thought has to be given to every aspect of the matter. It F
appears that because of the orders of injunctions passed by the High Court
new Building Rules could not be published and in the meantime plans for
high-rise buildings were being filed before the Corporation in accordance
with old Building Rules. In this background a ban in respect of passing of
the plans for high-rise building beyond 13.5 meters, for one year was
imposed.                                                                      G
     Can such provision be held to be unreasonable, arbitrary and irrational
so as to be held to be violative of Article 14 of the Constitution? Normally,
it is. not for the courts to examine the building regulations framed by
Development Authorities, Improvement Trusts and other statutory
authorities entrusted with such power under different Statutes unless any of    H
    492                    SUPREME COURT REPORTS           [1994] SUPP. 5 S._C.R.

A · such Rule or bye-law can be held to be beyond the power vested in them by
    the statutes concerned, or is held to be hit by any of the provisions of the
    Gonstitution. It need not be pointed out that the authorities who have been
    entrusted for framing the building laws and bye-laws, are expected to apply
    their mind not only to the existing situation prevailing in any metropolitan
    city or in an urban area, but they have also to keep an eye and foresee the
B   situations which may arise in the next century or even later. The
    development of a city or an urban area is to last for centuries. Because of
    that such authorities are expected to anticipate and foresee the problems
    which may arise with further growth of population.

         The learned Advocate General appearing for the appellant-State rightly
C   pointed out that the High Court has purported to substitute its own
    judgment on question of necessity and satisfaction of issuing the Amending
    Ordinance which was later replaced by an Amending Act. We fail to
    understand as to how the High Court has come to a finding that before
    issuing the Ordinance the necessity and requirement of imposing the ban on
    submission of plans exceeding the height of 13.5 metres ~ad not been
D   properly examined. All the relevant materials were brought before the High
    Court to show th.at a Committee consisting of high officials and experts of
    the State Government and Calcutta Municipal corporation had been
    entrusted with the responsibility of framing the new Building Rules. Such
    Building Rules could not be published because of interim orders passed in
    different writ applications filed before the High Court. Then the Amending
E   Ordinance was issued putting a ban on applications for passing P!!llls of
    buildings -exceeding 13 .5 meters in height for a period of one year. The
    Statement and Object of the Amendment Act says:                     ·

                   "Of late a great deal of concern has been caused to the State
                   Government by the problems arising out of unplanned and
F                  indiscriminate construction of · high-rise buildings in
                   Calcutta in as much as such construction has resulted in
                   increased load of Sewerage and Drainage systems, acute
                   problems of ·traffic management, increased density of
                   population, reduced availability of open space, increased
                   problems relating to conservancy, etc.
G
                    2. As an interim step, before introduction of permanent
                    measure to cope with the problems as aforesaid, the State
                    Government decided to amend the Calcutta Municipal
                    Corporation Act, 1980, in order to prevent construction of
                    high-rise buildings in Calcutta for period ofone year for the
H                   present.
          STATE v. TERRA FIRMA INVESTMENT [N.P. SINGH, J.]              493

               3. As the Legislature Assembly was not in session and as it A
               was necessary to take immediate action, an Ordinance,
               namely, the Calcutta Municipal Corporation (Amendment)
               Ordinance, 1989 (West Bengal Ordinance No. IX of 1989)
               was promulgated.

               4. The Bill seeks to continue the provisions of the said        B
               Ordinance."

     According to the respondent who is engaged in the business of
construction of multi-storeyed buildings and selling of plots or portions,
from multi-storeyed buildings, had submitted a plan on 24.3.1989 before C
the Calcutta Municipal Corporation for construction of a building having
height exceeding 13.5 metres at premises No.104. Ultadanga Main Road,
Calcutta. It had submitted the plan which was in accordance with the
Building Rules then in force, while the said plan was pending for
consideration before the Municipal Corporation for sanction, on
18. 12.1989, the aforesaid Amending Ordinance came in force putting an D
embargo in respect of passing plans for building exceeding the height of
13.5 metres for a period of one year. According to the respondent, from the
proceedings of the meetings of the · Expert Committee appointed by the
State Government, it does not appear that there was any justification or
valid reasons for imposing a ban for a period of one year by aforesaid E
Section 398A (I). It was also pointed out that some plans which had been
pending sanction were passed as late as on 14.12.1989, although the
recommendations against buildings exceeding 13 .5 metres in height had
been made as early as on 25.11.1988. Reference was made to different
Rules which were in force prior to the imposition of the ban w.e.f.
18.12.1989 and coming into force of the new Building Rules of 1990.         F
     We fail to appreciate as to how the provisions of the Amending
Ordinance/ Act can be held to be violative of Article 14 of the Constitution
merely on the ground that it imposes a ban on passing plans of buildings
exceeding 13.5 metres in height for a period of one year. J\dmittedly, that    G
period of one year was over when the writ petition was heard by the learned
single judge. Thereafter the respondent and others were entitled to submit
fresh plans for construction of multi-storeyed buildings according to the
new Building Rules. The new Building Rules had been framed by an Expert
Committee and after consideration of different objections from different
sections. How the respondent can claim an absolute or vested right to get      H
    494                    SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   his plan passed by writ of a court, merely on the ground that such plan had
    been submitted by him prior to 18.12.1989? By mere submission ofa plan
    for construction of a building which has not been passed by the competent
    authority, no right accrues. The learned Judges of the High Court should
    have examined this aspect of the matter as to what right the respondent had
    acquired by submission of the plan for construction of the high-rise
B   building before its application was rejected by a statutory provision.

         It is well settled that no ma!ice can be imputed to the legislature. Any
    legislative provision can be held to be invalid only on grounds like
    legislative incompetence or being violative of any of the constitutional
c   provisions. The learned counsel who appeared for the respondent could not
    point out any infirmity in the Amending Ordinance/Act. The learned
    counsel only referred to .different proceedings and resolutions of the Expert
    Committee, which according to us, has no bearing so far as the provisions
    of the Amending Ordinance/Act are concerned. In any case while judging
    the validity of the Amending Ordinance/Act, the proceedings of the
D
    meeting of the Expert Committee have no bearing or relevancy. This Court
    in Usman Gani J. Khatri of Bombay v. Cantonment Board and Others,
    (1992) 3 SC. 455 pointed out that builders do not acquire any legal right in
    respect of the plans until sanctioned in their favor. It wa5 also said:

E                  "In any case the High Court is right in taking the view that
                   the building plans can only be sanctioned according to the
                   building regulations prevailing at the time of sanctioning of
                   such building plans. At present the statutory bye-laws
                   published on April 30, 1988 are in force and the fresh
                   building plans to be submitted by the petitioners, if any,
F
                   shall now be governed by these bye-laws and not by any
                   other bye-laws or schemes which are no longer in ~orce
                   now. If we consider a reverse case where building
                   regulations are amended more favourably to the builders
                   before sanctioning of building plans already submitted, the
G                  builders would certainly claim and get the advantage of the
                   regulations amended to their benefit."

        Accordingly it has to be held tha~ the High Court was in error in
    declaring the prov1s1ons of the Amending Ordinance/Act as
    unconstitutional and invalid. The appeals are allowed and the impugned
H
         STATE v. TERRA FIRMA INVESTMENT [N.P. SINGH, J.]           49S

judgment of the High Court is set aside. We also direct the respondent to A
pay cost of Rs. 5,000-{five thousand only) to the appellant-State.

G.N.                                     Appeals allowed.

    N.P. SINGH. J. We have already allowed Civil Appeal Nos. 4832 of
1992 and 4834 of 1992. No separate direction is required to given in this B
appeal which is accordingly disposed of.

G.N.                                                  Appeals allowed.