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CASE NO.: Appeal (civil)  8561 of 1997

PETITIONER: Howrah Municipal Corpn. & Others

RESPONDENT: Ganges Rope Co. Ltd. & Others

DATE OF JUDGMENT: 19/12/2003

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

By this appeal, the Howrah Municipal Corporation challenges  the Division Bench judgment dated 05.9.1997 of the High Court of  Calcutta whereby it has reversed the judgment dated 6.8.1996  passed in Writ Petition No.2561 of 1994 of learned Single Judge of  that Court.  The Division Bench has directed grant of sanction for  construction of three additional floors to the multi-storeyed complex  which is already constructed up to four floors belonging to respondent  - Ganges Rope Co. Ltd.

The learned Single Judge in his order found that although the  sanction for construction for additional three floors to the existing  complex, sought by the respondent \026 company, was delayed by the  Corporation without any justification, its prayer for grant of sanction  for additional three floors cannot be granted as the Howrah Municipal  Corporation Building Rules 1991 framed under the provisions of  Howrah Municipal Corporation Act 1980 (for short "the Act") have  been amended and the resolution of the Corporation issued  thereunder prohibit multi-storeyed construction above one plus two  floors on G.T. Road,  Howrah.   

The Division Bench of the High Court by the impugned  judgment by taking a contrary view has held that sanction for  construction of the multi-storeyed complex of respondent - company  up to fourth floor having been granted by orders of the High Court in  the earlier Writ Petition with liberty reserved in favour of the  company to seek sanction up to 7th floor, it was not open to the  Corporation to refuse sanction only because after expiry of the  stipulated period of sixty days provided in the rules for grant of  sanction or refusal and expiry of the extended period granted by the  High Court, Building Rules have been amended prohibiting  construction of multi-storeyed buildings above third floor on the G.T.  Road, Howrah.   

Only few relevant dates and facts are necessary for deciding  the controversial issue regarding sanction of additional three floors to  the multi-storied complex.  The respondent-company first applied for  sanction for construction of its complex up to seven floors on  6.7.1992.  Since the sanction was not granted within the prescribed  period of sixty days in accordance with the Building Rules, it  approached the High Court in Writ Petition. The learned Single Judge  made the following directions in his order passed on 26.4.1993:-

"I dispose of this application with a direction upon the Howrah  Municipal Corporation authorities to consider and dispose of the  petitioners’ application for grant of sanction of the building plan

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submitted by them on 6th July, 1992, within a period of four  weeks from date in accordance with the provisions of Howrah  Municipal Corporation and the Building Rules.

In default, the parties are at liberty to mention the matter."

The period granted to the Corporation to decide the application  for sanction was extended by a further period of three weeks by  learned Judge on 28.5.1993.  Since the Corporation did not either  grant or refuse the sanction even within the extended time, the  respondent approached the High Court  again on 23.12.1993. The  Court passed the following order :-  "It appears that sanction of building Plan within Howrah  Municipal area is permissible up to ground plan 4th floor level  and as contended on behalf of the petitioners even up to 7th  floor level.’

This submission made on behalf of the appellants is not disputed  on behalf of the Howrah Municipal Corporation.   

Having regard to the above, I dispose of the application by  directing the Howrah Municipal Corporation to grant sanction to  the petitioners’ Plan submitted on 6th July 1992 up to the 4th  floor level, if all the requirements are duly complied with by the  writ petitioners.  Such sanction must be given by the Howrah  Municipal Corporation within one month from the date of  communication of this order.   The Howrah Municipal  Corporation is directed to notify the petitioners the necessary  sanctioning copies and the same is to be deposited by the  petitioners upon being so notified.

This order will not prevent the petitioners from applying  for further sanction if the same at all permissible at a  later date.  The application is thus disposed of."

[Underlining to add emphasis]

It is not in dispute that after the order dated 23.12.1993  on  grant of sanction by the Corporation,  construction in the Building  Complex up to 4th level has been completed.  On the basis of the  above order in which liberty was given to the present respondent  company to apply for further sanction to construct beyond 4th floor up  to 7th floor,  further sanction was sought by letter dated 27th May,  1994, addressed to the Corporation with separate building plans for  three additional floors.

Since the Corporation did not accept the application and  communicated no order of sanction, the respondent-company again  approached the High Court.  Learned Single Judge of the High Court  in his order dated 24.6.1994, by referring and reproducing the earlier  order of the High Court dated 23.12.1993, held that as the right to  the company was reserved to apply for sanction for further floors, the  Corporation was bound to accept the construction plan.  The learned  Judge directed that on the application with plan submitted for  construction of three additional floors, the Corporation should pass  appropriate orders within four weeks from the date of submission of  the plan and receipt of copy of the order.

Armed with the above order, the company again approached  the Corporation by letter dated 28.6.1994  to grant sanction of  construction of three additional floors.  The Corporation wrote back  on 28.7.1994 demanding from the company submission of fresh  plans.  Second letter dated 19.9.1994 was also addressed by the  Corporation to the Company requiring submission of requisite number

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of  prints of proposal, tax clearance certificate, previous sanctioned  plan, indemnity bond for deep foundation work, proposal plans  approved by Fire Service Authority and other documents showing  permission for ’change of user’.  The company along with the letter  dated 10.8.1994 complied with the directions and submitted the  required papers and documents.

When the application for sanction for construction of  additional three floors, filed by respondent company was pending for  sanction with the Corporation, the Government of West Bengal by  Notification published in the Calcutta Gazette (Extraordinary) dated  15.7.1994, in exercise of powers under section 215 of the Act   amended the ’Building Rules’ restricting height of high rising buildings  to the prescribed level depending upon the width of the street on  which the building is proposed to be constructed.  This restriction on  the height of the building proportionate to the width of the street was  prescribed in table under sub-rule (1) Rule 20.  For streets including  G.T. Road with width up to 18-20 metres, the permissible height of  buildings prescribed is 36 metres.  The permissible construction,  therefore, for G.T. Highways could be up to 36 metres i.e. about 11  to 12 floors.  Under amended sub-rule (3) of Rule 20, however, the  Commissioner, with approval of Mayor-in-Council, was granted power  to restrict the height of high rising buildings in specified areas and  wards keeping in view the limited civic amenities.  Sub\026rule (3) of  Rule 20, as amended by Notification dated 15.7.1994, needs to be  reproduced as Corporation has placed heavy reliance on the same to  justify refusal of sanction:-

"Notwithstanding anything contained in sub-rules (1) and (2), if  the Commissioner, having regard to (a) the existing water  supply, sewerage and drainage system in any ward or part  thereof, or (b) the traffic carrying capacity of a street in any  ward or part thereof, or (c) the density of population of that  area, or (d) the commercial activity of that area, or (e)  the  conditions of the existing building, is of the opinion that the  erection of any building exceeding 10 metres in height or  execution of any work in such ward or part thereof will put  additional burden on the existing civic services, he may sanction  erection of such building or execution of such work subject to  such restrictions of height and F.A.R. or conditions including  uses as he may deem fit to impose, provided that no such  action shall be taken by the Commissioner without the  prior approval of the Mayor-in-Council."

In exercise of powers under sub-rule (3) of Rule (20) (as  amended with effect from 15.7.1994) with due approval of Mayor-in- Council, the Commissioner of the Corporation imposed a restriction  on construction of buildings exceeding ten metres in height in the  prescribed wards and streets which include GT Road on which the  respondent seeks sanction for construction of additional three floors.   The relevant resolution of the Corporation dated 02.9.1994 in its  relevant parts reads thus : "Having regard to \026 1.      The existing water supply, sewerage and drainage system in  any Ward or part thereof, or

2.      The traffic carrying capacity of a street in any ward or part  thereof, or

3.      The density of population of that area or

4.      The commercial activity of that area or

5.      The conditions of the existing building, it is unanimously felt  that erection of any building exceeding 10 mts in height in

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the following Ward/Street will put additional burden to existing  civic services and therefore following decision is taken in terms  of Rule 20(3) of amended H.M.C. Building Rules :-

a)      The height of the building is to be restricted within 10  metres in the Ward Nos. 12 to 16, 29 to 31 and 33 to  40.

b)      In case of G.T. Road facing South to North of any  order Wards other than above in item (1)  restriction of new building proposals upto 10  metre of height to be imposed upon the holdings  which fall within 50 metres to both sides of the  road.  But in practising so, when a holding is affected  partly, in that case the entire holding should be  considered as affected holding.

c)      In cases of holdings with reference to Kona Express  Highway & 100’ HIT Road from Beliapole to Natabar Paul  Road crossing they should also be dealt with as per Item  (2) above. Decision

       The above mentioned orders of Mayor dated 10.7.94 in regard  to amendments of H.M.C. Building Rules, 1991 permissible height of  Building, Floor Area Ratio & conditions including uses is confirmed.

Certified to be true copy of the origin.        Sd/- Secretary, Howrah Municipal Corporation"

[Underlining for pointed attention]

On the basis of the amended Rule 20 which came into force  with effect from 15.7.1994 and the consequential resolution dated  18.7.1994 of the Corporation which was taken with the approval of  Mayor-in-Council, the Corporation by letter dated 16.9.1994 informed  the respondent company that in view of the restrictions imposed on  the height of buildings on GT Road, the sanction sought by them for  additional three floors cannot be granted.  The proposal for further  construction, therefore was "treated as cancelled."

Learned counsel appearing for the Corporation in assailing the  impugned order of the Division Bench contends that in view of the  amendment introduced by the State of West Bengal to the Building  Rules and the consequent resolution taken by the Corporation  restricting height of buildings on GT Road, the Corporation had no  option but to refuse the sanction for construction of three additional  floors and this communication of the Corporation although delayed,  cannot be described as malicious or against public interest.  It is also  contended on behalf of the Corporation that on the orders of the  Court directing sanction within a specified period, no vested right was  created in favour of the company to seek sanction for construction of  additional three floors. The Division Bench was clearly in error in  coming to the conclusion that the unamended rules and regulations in  force on the date of submission of the application  seeking sanction  for further construction, would govern the matter of sanction and the  subsequent amendment to the Building Rules cannot take away the  alleged vested right for seeking sanction by the company. Learned counsel argued that a claim for such vested right for  sanction for construction was negatived in comparable circumstances  in two decisions of this Court viz. Usman Gani J.Khatri of Bombay  vs. Cantonment Board [1992 (3) SCC 455] and State of West  Bengal vs. Terra Firma investment & Trading Pvt. Ltd. [1995 (1)

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SCC 125].

On the other side learned counsel appearing for the  respondent- company took this Court through the various orders  made by the High Court from time to time in successive Writ Petitions  filed by the company. The provisions of the Act and the Building  Rules were read to contend that the Division Bench was fully justified  in coming to the conclusion that on the date the High Court allowed  the company to submit plans for sanction for construction of  additional three floors and fixed a period within which the Corporation  had to decide the application for sanction, a vested right had been  created in favour of the company to seek sanction on the basis of the  unamended Building Rules as they existed.  It is argued that  on the  basis of subsequent amendment to the rules, it is not open to the  Corporation to refuse sanction when the Corporation is found to have  maliciously and for extraneous reasons delayed the processing of  application for sanction much beyond the period fixed for the purpose  by the last order of the High Court in the earlier writ petition.   

Learned counsel submits that had the application for sanction  submitted with plans by the company for constructing three  additional floors been decided within the time allotted by the High  Court, the company would naturally have got the order of sanction  because by that date the amended Building Rules and the consequent  resolution of the Corporation restricting height of buildings on G.T.  Road had not come into force.

The main question that falls for consideration before us is  whether, by the order of the Court in which a period was fixed for the  Corporation to take a decision on the application for sanction for  construction of additional floors, any vested right has been created in  favour of the company to seek sanction for the construction of  additional three floors irrespective of subsequent amendment to the  Building Rules and the resolution of the Corporation putting  restrictions on the height of high rising buildings on GT  Road.  

The subject of sanction of construction is governed by the  provisions of the Act, Rules and Regulations as also the Resolution of  the Corporation which was taken with approval of Mayor-in-Council.   The statutory provisions regulating sanction for construction within  the municipal area are intended to ensure proper administration of  the area and provide proper civic amenities to it. The paramount  considerations of  regulatory provisions for construction activities are  public interest and convenience.  On the subject of seeking sanction  for construction, no vested right can be claimed by any citizen  divorced from public interest or public convenience.   

To decide on the justification of the claim raised on behalf of  the company that the order of Court fixing a time limit for the  Corporation to decide its application for sanction creates a vested  right, it would be necessary to examine the relevant provisions of the  Act, Rules and the Regulations. Chapter XII of the Act contains  provisions regulating sanction for construction or erection of buildings  in the area within the limits of the Corporation.  Section 173 states :  "No person shall use any piece of  land as a site for erection of a new  building except in accordance with the provisions of this Act and the  regulations made under this Act in relation to such erection of  building."  Section 174 requires : "Every person who intends to erect  a building shall apply for sanction by giving notice in writing of his  intention to the Commissioner in such form and containing such  information or document as may be prescribed."  Section 175 reads:-  

"Section 175. The Commissioner shall sanction the erection of  building ordinarily within a period of sixty days unless any  further information or document be called for or sanction be

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refused in the meantime on such grounds as may be  prescribed."  [Emphasis added]

What is to be noted from Section 175 (quoted above) is that a  period of sixty days is not a firm outer limit as the words "sixty days"  are  prefixed by the word "ordinarily."  It is also to be noted that the  provisions of the Act under consideration, compared with other  Corporation Acts of other States, do not provide for ’deemed  sanction’ or  ’deemed rejection’ after expiry of  the prescribed period  fixed for deciding the application for sanction.   

       In the case of Chet Ram Vashist v. Municipal Corporation  of Delhi & Anr. [1980 (4) SCC 647], the provisions contained in  Section 313 of the Delhi Municipal Corporation Act, 1957 came up for  consideration where not only a period of sixty days was prescribed for  according or disallowing sanction for construction but proviso under  sub-section (5) of that section further provided that in no case,   passing of orders on the application for sanction shall be delayed  beyond sixty days after necessary information demanded by the  Corporation has been received.  Even on such specification of fixed  period, this Court held :- "Sub-sections (3) and (5) of Section 313 prescribe a period  within which the Standing Committee is expected to deal with  the application made under sub-section (1).  But neither sub- section declares that if the Standing Committee does not deal  with the application within the prescribed period of sixty days it  will be deemed that sanction has been accorded.  The statute  merely requires the Standing Committee to consider the  application within sixty days.  It stops short of indicating what  will be the result if the Standing Committee fails to do so.  If it  intended that the failure of the Standing Committee to deal with  the matter within the prescribed period should imply a deemed  sanction it would have said so.  They are two distinct things, the  failure of the Standing Committee to deal with the application  within sixty days and that the failure should give rise to a right  in the applicant to claim that sanction has been accorded.  The  second does not necessarily follow from the first.  A right  created by legal fiction is ordinarily the product of express  legislation.  It seems to us that when sub-section (3) declares  that the Standing Committee shall within sixty days of receipt of  the application deal with it, and when the proviso to sub-section  (5) declares that the Standing Committee shall not in any case  delay the passing of orders for more than sixty days the statute  merely prescribes a standard of time within which it expects the  Standing Committee to dispose of the matter.  It is a standard  which the statute considers to be reasonable.  But non- compliance does not result in a deemed sanction to the lay-out  plan."

The provisions of the Act, therefore, contemplate an express  sanction to be granted by the Corporation before any person can be  allowed to construct or erect a building.  Thus, in ordinary course,  merely by submission of application for sanction for construction, no  vested right is created in favour of any party by statutory operation  of the provisions.  The question then is whether such a vested right  can be deemed to have been created by the fixation of time limit by  the Court in its order for considering the application for sanction. In  the order dated 23.12.1993 sanction was granted for construction up  to 4th floor level and for further construction it was observed thus:

"This order will not prevent the petitioners from applying for  further sanction if the same at all permissible at a later date."

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After the above order, the company applied for sanction of  additional three floors.  The stand of the company, as contained in  letters, addressed to the Corporation, appears to be that it was  entitled to seek sanction on the same application which it had earlier  filed with plans for seven floors and on which under the orders of the  court in the first writ petition,  sanction was granted up to four floors.   The Corporation sent replies and sought documents and additional  information from the company. It was insisting on the company to  submit  fresh application for sanction with plans of three additional  floors to their existing construction.  This insistence on the part of the  Corporation cannot be termed as malicious or a deliberate attempt on  their part to delay the processing of the application.  Rule 3 of the  Building Rules supports the stand of the Corporation that for re- erecting or making addition to the existing building, submission of  fresh plan for sanction was necessary.  Rule 3 reads:

"Rule 3. Prohibition of building without  sanction:  

(1)     No person shall erect a new building or re-erect or make  addition to, or alteration of, any building or cause the same to  be done without obtaining sanction from the Commissioner and  where necessary, a development permit from the concerned  authority under the West Bengal Town and Country (Planning  and Development) Act, 1979."   

Rule 4 further reinforces requirement of a fresh application for  sanction with Plans for additional three floors. Rules 4 reads thus :-   

"Rule 4. Notice for erection or alteration of a building : -  (1) every person who intends to make a new building on any  site, whether previously built upon or not, or re-erect or make  additions to, or alteration of, any building shall apply for  sanction by giving notice in writing to the Commissioner."

       On behalf of the company it was argued that Rules (3) & (4)  apply in normal circumstances but in this case there was an order of  the High Court reserving a ’liberty’ and a right to the company to  seek sanction for further construction above 4th floor.   

It is not possible for the court to read more into the order dated  23.12.1993 whereby the court merely observed that the applicant will  not be ’prevented’ from applying for further sanction.  This one  observation cannot be read to absolve the applicant from the  obligations prescribed in Rules 3 & 4 of the Building Rules.

       On a subsequent approach by the respondent - company to the  High Court, by order dated 24.6.1994, learned Single Judge merely  ’expected’ the Corporation to pass the appropriate orders on the  pending application for sanction of additional floors to the company  within a period of four weeks.  The relevant part of the order states :-

"it is expected that the Howrah Municipal Corporation shall pass  appropriate orders within four weeks from the date of  submission of the Plan and receipt of copy of the order."

According to the company, on the expiry of period of four  weeks fixed by order dated 24.6.1994, there was no justification for  the Corporation to keep the application for sanction pending and to  allow it to be rendered infructuous as a result of the amendment to  the Building Rules which came into force by Gazette Notification on  15.7.1994.  On behalf of the Corporation it is denied that despite the  order of the court granting four weeks, the application for sanction  was deliberately not considered by the Corporation.  It is submitted

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that there was no time-bound mandate by the court to the  Corporation.   

In our considered opinion, by the order of the Court dated  23.12.1993 observing that the petitioner is ’not prevented from  applying’ for further sanction of additional floors above fourth floor  and the ’expectation’ expressed in the subsequent order of the Court  dated 24.6.1994 , from the Corporation to decide the pending  application for sanction within four weeks, no vested right in favour of  the respondent \026 company can be said to have been created to  obtain sanction on the unamended rules, as they existed on the date  of their second application.

It has been urged very forcefully that the sanction has to be  granted on the basis of Building Rules prevailing at the time of  submission of the application for sanction.  In the case of Usman  Gani (supra), the High Court negatived a similar contention and this  Court affirmed the same by observing thus: "In any case, the High Court is right in taking the view that the  building plan 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  30.4.1988 are in force and the fresh building plans to be  submitted by the petitioners, if any, shall now be governed by  these bye-laws and not by any other bye-laws or schemes which  are no longer in force 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 builders would certainly  claim and get advantage of the regulations amended to  their benefit." [underlining to add emphasis]

This Court, thus, has taken a view that the Building Rules or  Regulations prevailing at the time of sanction would govern the  subject of sanction and not the Rules and Regulations existing on the  date of application for sanction.  This Court has envisaged a reverse  situation that if subsequent to the making of the application for  sanction, Building Rules, on the date of sanction, have been amended  more favourably in favour of the person or party seeking sanction,  would it then be possible for the Corporation to say that because the  more favourable Rules containing conditions came into force  subsequent to the submission of application for sanction, it would not  be available to the person or party applying.   

The decision in Gani J.Khatri (supra) was followed by this  Court in the case of State of West Bengal vs.  Terra Firma  Investment and Trading Pvt. Ltd. [1995 (1) SCC 125].  That case  arose as a result of amendment introduced in the Act in the year  1990 restricting building heights within limits of Calcutta Municipal  Corporation to 13.5 metres. Applications for sanction pending for  construction with height above 13.5 metres were rejected because of  the above restriction.  In that case also the applicants claimed a  vested right to get their plans passed and sanctioned as they were  submitted prior to the amendment made to Calcutta Municipal  Corporation Act in 1990.  This Court on examining the object in  restricting height of buildings in the city of Calcutta due to limited  resources for civic amenities upheld the Amendment Act and  negatived the claim of vested right set up by the applicants on the  basis of unamended provisions and building regulations. Relying on  the decision of Usman Gani J.Khatri (supra), this Court observed :-

"How can the respondent claim an absolute or vested right to  get his plan passed by Writ of a Court merely on the ground

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that such plan had been submitted by him prior to 18.12.1989?   By mere submission of a plan for construction of a building  which has not been passed by the competent authority no right  accrues.  The learned Single Judge 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 high rise building before its application was  rejected by the statutory provision."

This court further observed :-   "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 invalid legislation incompetence or being  violative of any Constitutional provisions."   

Relying on Usman Gani’s case (supra), this Court reiterated  that ’builders do not acquire any legal right in respect of the plans  until sanctioned in their favour’.

Learned counsel appearing for the respondent company tried to  distinguish the decisions in the cases of Usman Gani and Terra  Pharma (supra) stating that in the present case the vested right  arose because of a time bound order of the Court. It is argued that  the time bound orders of the Court were not only disregarded  but, as  has been found by the High Court, deliberately flouted for extraneous  reasons. It is submitted that the claim of sanction for additional three  floors available to the company on the date of submission of  application for sanction with plans could not have been frustrated by  the Corporation by deliberate delay in processing the application and  raising pleas and objections to the plan.  

We do not find that there was any deliberate delay on the part  of the Corporation. We have found that the stand of the Corporation,  on the basis of Building Rules, cannot be held to be erroneous that  for seeking three additional floors, the company was required to file  fresh application for sanction with necessary particulars, documents,  plans and enclosures.  The company complied with the necessary  requirements but thereafter, the Building Rules were amended and  restrictions have been imposed on height of buildings on the GT  Road. It cannot, therefore,  be held that the action of the Corporation  is malicious.  The Building Rules were amended by the State and the  Corporation can have no bona fide or mala fide hand in it.  After the  amended Building Rules were notified, the Corporation on relevant  ground of limited resources for civic amenities in a congested city like  Howrah, with the approval of Mayor-in-Council, could legally impose  legitimate restrictions on the height of buildings, on specified wards,  roads and localities.  It is to be noted from the relevant resolution of  the Corporation that restrictions with regard to the height of buildings  are not imposed only on GT Road but there are several specified  wards and areas in which such restrictions are applied.  This Court  cannot accept that such a legislative change and consequent  resolution came to be passed and got approved only to frustrate the  pending application of the company.   

We have examined the provisions of section 175 of the Act   fixing ’ordinarily’ period of ’sixty days’ for granting or refusing  sanction. We have also examined Rule 13 of the Building Rules which  also prescribes a period  of ’sixty days’ from the date of application  for grant or refusal of sanction for construction. Neither the  provisions of the Act nor the Rules, however, provide for ’deemed  sanction’ or ’deemed refusal’ on the expiry of sixty days’ period.  Therefore, without express sanction, no construction is permissible  contrary to the provisions in Chapter XII of the Act and Rule 3 of the  Building Rules which prohibit ’construction or erection of new building  or addition or alteration to any existing building’ without obtaining

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sanction for construction.  

The above stated legal position is not disputed on behalf of the  respondent \026 company. What is being contended is that the order of  the High Court fixing a period for the Corporation to decide its  pending application for sanction creates a vested right in favour of  the applicant company to seek sanction for its additional proposed  construction on the basis of Building Rules, as they stood prior to the  amendment introduced to the Building Rules and the consequent  Resolution of the Corporation restricting the height of buildings on  G.T. Road. It is undeniable that after the amendment of the Building  Rules and the Resolution passed by the Corporation thereunder  restrictions imposed on heights of buildings on specified wards, roads  and localities would apply to all pending applications for sanction. The  question is whether any exception can be made to the case of the  applicant seeking sanction who had approached the court and  obtained consideration of its applications for sanction within a  specified period. We have extracted above, the various orders passed  by the High Court in writ petitions successively filed by the company  in an effort to obtain early sanction for its additional construction of  three floors on the buildings in its multi-storeyed complex already  completed up to 4th floor. In none of the orders of the High Court,  there is a mandate issued to the Corporation to grant a sanction.  What was directed by the High Court in the first order was merely a  ’liberty’ or option to the company to seek sanction for additional three  floors. In the subsequent order, an ’expectation’ was expressed for  decision of the pending applications within a period of four weeks.  There was, thus, in favour of the company an order of the High Court  directing the Corporation to decide its pending applications for  sanction within the allotted period but non-compliance thereof by the  Corporation can not result in creation of any vested right in favour of  the company to obtain sanction on the basis of the Building Rules as  they stood on the date of making application for sanction and  regardless of the amendment introduced to the Building Rules.  Neither the provisions of the Act nor general law creates any vested  right, as claimed by the applicant \026 company for grant of sanction or  for consideration of its application for grant of sanction on the then  existing Building Rules as were applicable on the date of application.  Conceding or accepting such a so-called vested right of seeking  sanction on the basis of unamended Building Rules, as in force on the  date of application for sanction, would militate against the very  scheme of the Act contained in Chapter XII and the Building Rules  which intend to regulate the building activities in a local area for  general public interest and convenience. It may be that the  Corporation did not adhere to the time limit fixed by the court for  deciding the pending applications of the company but we have no  manner of doubt that the Building Rules with prohibition or  restrictions on construction activities as applicable on the date of  grant  or refusal of sanction would govern the subject matter and not  the Building Rules as they existed on the date of application for  sanction.  No discrimination can be made between a party which had  approached the court for consideration of its application for sanction  and obtained orders for decision of its application within a specified  time and other applicants whose applications are pending without  any intervention or order of the court.  

       The argument advanced on the basis of so-called creation of  vested right for obtaining sanction on the basis of the Building Rules  (unamended) as they were on the date of submission of the  application and the order of the High Court fixing a period for decision   of the same, is misconceived.  The word ’vest’ is normally used where  an immediate fixed right in present or future enjoyment in respect of  a property is created.  With the long usage the said word ’vest’ has  also acquired a meaning as "an absolute or indefeasible right" [See  K.J. Aiyer’s ’Judicial Dictionary’ (A complete Law Lexicon),

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Thirteenth Edition].  The context in which respondent - company  claims a vested right for sanction and which has been accepted by  the Division Bench of the High Court, is not a right in relation to  ’ownership or possession of any property’ for which the expression  ’vest’ is generally used.  What we can understand from the claim of a  ’vested right’ set up by the respondent-company is that on the basis  of Building Rules, as applicable to their case on the date of making an  application for sanction and the fixed period allotted by the court for  its consideration, it had a ’legitimate’ or ’settled expectation’ to obtain  the sanction.  In our considered opinion, such ’settled expectation’, if  any, did not create any vested right to obtain sanction.  True it is that   the respondent-company which can have no control over the manner  of processing of application for sanction by the Corporation cannot be  blamed for delay but during pendency of its application for sanction,  if the State Government, in exercise of its rule making power,  amended the Building Rules and imposed restrictions on the heights  of buildings on G.T. Road and other wards, such ’settled expectation’   has been rendered impossible of fulfillment due to change in law.   The claim based on the alleged ’vested right’ or ’settled expectation’  cannot be set up against statutory provisions which were brought into  force by the State Government by amending the Building Rules and  not by the Corporation against whom such ’vested right’ or ’settled  expectation’ is being sought to be enforced. The ’vested right’ or  ’settled expectation’ has been nullified not only by the Corporation  but also by the State by amending the Building Rules.  Besides this,  such a ’settled expectation’ or so-called ’vested right’ cannot be  countenanced against public interest and convenience which are  sought to be served by amendment of the Building Rules and the  resolution of the Corporation issued thereupon.   

In the matter of sanction of buildings for construction and  restricting their height, the paramount consideration is public interest  and convenience and not the interest of a particular person or a  party. The sanction now directed to be granted by the High Court for  construction of additional floors in favour of respondent is clearly in  violation of the amended Building Rules and the Resolution of the  Corporation which restrict heights of buildings on GT  Road.  This  Court in its discretionary jurisdiction under Article 136 of the  Constitution cannot support the impugned order of the High Court of  making an exception in favour of the respondent \026 company by   issuing directions for grant of sanction for construction of building  with height  in violation of the amended Building Rules and the  resolution of the Corporation passed consequent thereupon.  

For all the above reasons, in our opinion, the learned Single  Judge was right in rejecting the prayer of the respondent company in  public interest and the Division Bench of the High Court committed an  error in directing grant of sanction for further construction above four  floors to the respondent company in clear violation of the existing  building rules and the resolution of the Corporation.

In the result, the appeal preferred by the Corporation succeeds  and is allowed.  The impugned order of the Division bench of the High  Court dated 5.9.1997 is hereby quashed and that of the learned  Single judge restored.  In the circumstance, however, we shall direct  the parties to bear their own costs in this appeal.