Builders In Kolkata Cannot Seek Extension For Construction After Expiry of Sanction Plan, Fresh Approval Necessary: Calcutta High Court
Setting aside a single bench order which directed the Kolkata Municipal Commissioner to renew an expired sanction plan of a builder, the Calcutta High Court has held that builders cannot file for extension of sanctioned building plans after expiry of the period permitted for construction and must obtain a fresh sanction, as per the Kolkata Municipal Corporation Act, 1980.The division bench...
Setting aside a single bench order which directed the Kolkata Municipal Commissioner to renew an expired sanction plan of a builder, the Calcutta High Court has held that builders cannot file for extension of sanctioned building plans after expiry of the period permitted for construction and must obtain a fresh sanction, as per the Kolkata Municipal Corporation Act, 1980.
The division bench of Justices Arijit Banerjee and Rai Chattopadhyay said the Supreme Court has categorically stated in the Pune Cantonment Board & Anr. v. M.P.J. Builders & Anr that unless time is extended on an application made before the expiry of sanction, the sanction lapses and the construction activities cannot be continued thereafter without a fresh sanction.
"Thus, the application for extension of validity of the sanctioned plan must be made before the time permitted for completing the construction expires. In the present case nothing stopped the writ petitioner from making such application for extension of time prior to February 20, 2020, when the validity period of the sanctioned plan expired. Not having done so, the writ petitioner will have to face the consequences. In order to be able to carry on with the construction activities, the writ petitioner will have to obtain fresh sanction," said the division bench.
The judgement dated September 30 has been passed on an appeal filed by the Kolkata Municipal Corporation against the single bench's order of April 21, 2022. In the case, a building plan was sanctioned by the KMC in favour of the private respondents granting sanction for construction of a multi-storied building. The building plan was valid for a period of five years.
Before the expiry of the plan, the respondents were instructed by police officials to stop the construction work. Despite requests to the police officials, their demands to resume work were not acceded to. The police had made the demand in view of a municipal circular on height restrictions of buildings in that particular zone.
Meanwhile, the validity of the sanctioned plan expired. After the expiry, the respondents made an application to the KMC, seeking extension of the plan for another term. With representation not having been responded to, the matter reached court.
The single bench directed the Commissioner to renew the sanction plan and extend the period of completion of construction. Aggrieved by the decision of the single bench, the KMC approached the High Court in appeal.
The counsel representing the KMC argued that the question of extension of time to complete any construction work can only arise when application for extension is made before the expiry of the sanctioned plan and that there cannot be extension of something which does not exist anymore.
Furthermore, it was argued that if a builder allows the stipulated time period to expire without applying for extension of time prior thereto, the only way such builder can continue with the construction work is after obtaining a fresh sanction. Reliance was placed by KMC on the Supreme Court decisions in Pune Cantonment Board and Another v. M.P.J. Builders and Another, (1996) 5 SCC 438 and Provash Chandra Dalui and Another v. Biswanath Banerjee & Another, 1989 Supp (1) SCC 487.
With regard to police action, the KMC told the court the circular was not made applicable to the case of private respondents.
Citing Calcutta High Court's decision in Circular Properties (P) Limited and Others v. Calcutta Municipal Corporation and Others, AIR 1996 Cal 271, the private respondents argued that KMC authorities were required to extend the time period for completing the construction in question and cannot insist that the builder must obtain a fresh sanction.
Referring to the Supreme Court decision in Pune Cantonment Board, the division bench said Section 183A of the Cantonments Act, 1924 and Section 399 of the KMC Act, 1980, are almost identically worded.
"Hence, the observations of the Hon'ble Supreme Court in the case of Pune Cantonment Board (Supra) in relation to Section 181A of the Cantonments Act, shall squarely apply to Section 399 of the KMC Act. The object of the two Sections of the said two statutes is the same – to regulate construction activities in the interest of public safety and planned development of the area to which the statute applies," it added.
The court also referred to the Section 399 of the KMC Act and Rule 15(3) of the KMC Building Rules, 2009 and said a building permit cannot be allowed to remain valid for an indefinite period of time.
"With passage of time various factors in the society undergo change which may require change in the building rules. The legislature in its wisdom has thought it fit to permit the Municipal Commissioner to extend the validity of a sanctioned plan up to a period of 10 years provided the builder makes an application prior to expiry of the original validity period. However, once the original validity period expires, the builder has to obtain a fresh sanction, generally, in accordance with the Building Rules prevailing on the date of application for fresh sanction," it added.
The court said the single bench's direction, in light of the observation made in the decision on KMC's appeal, must be understood as granting a fresh sanction and allowing consequential extension of time for completion of construction.
"Hence, in the peculiar facts of the case, if the writ petitioner applies for renewal of the building plan/fresh sanction of building plan, the same will be considered in accordance with law and the applicable rules by the competent authority without taking into account the aforesaid Municipal Circular No. 5 of 2020/2021 dated June 17, 2020," said the division bench.
Case Title: The Kolkata Municipal Corporation and Others v. M/s Adya Residency (P) Limited and M/s Rajveer Infrastructure Reality Private Limited and Others
Case No: A.P.O. 47 of 2022 with W.P.O 275 of 2020 and I.A. NO. G.A. 1 of 2022
Citation: 2022 LiveLaw (Cal) 319
Coram: Justice Arijit Banerjee and Justice Rai Chattopadhyay
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