Calcutta High Court (Appellete Side)
Amitava Pakhira & Anr vs Chairman on 25 March, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Sarkar
W.P. No.11976 (W) of 2012
Amitava Pakhira & Anr.
Versus
Chairman, Diamond Harbour Municipality & Ors.
For the petitioners : Mr. Pradip Kr. Chakraborti,
Mr. S. gangopadhyay
For the respondent Nos.1 & 3 : Mr. Shyama Prosad Purkait,
Ms. Moumita Mondal
For the respondent Nos.5 to 7 : Mr. N.R. Mukherjee,
Mr. Sourya Mukherjee,
Mr. Debesh Halder
Heard on : 17/07/2018, 25/07/2018, 30/08/2018, 25/01/2019, 01/02/2019
Judgment on: 25/03/2019
Shampa Sarkar, J. :
This writ petition has been filed for a direction upon the respondent Nos.1 and 2, that is, the Chairman and Board of Councillors of Diamond Harbour Municipality to take steps in terms of Sections 204 and 204A of the Bengal Municipal Act, 1993 against the construction made by the respondent Nos.5 to 7 on the plot adjacent to the petitioners' plots, with a 2 further prayer for restraining the authority from taking any steps in regularizing the municipal records in the name of the respondent Nos.5 to 7 in respect of their land. The petitioners are owners of a three storey building on plots bearing Nos.1268, 1269 relating to R.S. Khatian No.143, L.R. Khatian No.1359, in Mouza-Dhanberia, Police Station-Diamond Harbour, Ward No.9, District-South 24-Parganas.
2. The facts of the case as stated in the writ petition in a nutshell is that the respondent Nos.5 to 7 were residing at the adjacent plot of land to the petitioners' land and had an old dwelling house in a dilapidated condition. Sometime in February 2011, the respondent Nos.5 to 7 started demolishing the dilapidated construction and raised a new construction. The said construction was causing obstruction to the free passage of air and light of the petitioners. Subsequently the petitioners came to know that the respondent Nos.5 to 7 did not have a sanctioned plan for such construction. Accordingly, complains were raised with the Chairman, Diamond Harbour Municipality. A stop work notice was issued by the respondent No.1 on February 25, 2011 to the respondent No.5. Challenging the inaction on the part of the respondent authorities in taking steps to stop such unauthorized construction the petitioners moved an application under Article 226 of the Constitution of India before this Court which was registered as W.P. No.4474 (W) of 2011. The said writ petition was disposed of with a direction upon the respondent No.1, that is, the Chairman, Diamond Harbour Municipality to consider whether the construction undertaken by the respondent Nos.5 to 7 were strictly in terms of the sanctioned plan or in the absence of a sanctioned plan or in 3 deviation thereof.
3. Pursuant to the said direction the Chairman, Diamond Harbour Municipality issued a reasoned decision dated March 3, 2012 to the effect that the respondent Nos.5 to 7 had left clear space of 1.50 metres from the boundary wall on the basis of the approved plan and the allegation of the petitioners were false and baseless.
4. Challenging the aforementioned decision the petitioners moved this Hon'ble Court by filing an application for contempt on the ground that the petitioners were not given notice of the date of hearing and as such the ex parte decision of the Chairman dated March 3, 2012 ought to be set aside.
5. A learned Single Judge of this Court fixed the date of hearing before the Chairman on April 21, 2012 at 3.00 p.m. after setting aside the decision dated March 3, 2012. Pursuant to the direction of the learned Single Judge of this Court, the then Chairman, Diamond Harbour Municipality, Shri Pannalal Halder issued another reasoned decision dated April 21, 2012 upon hearing the parties. The Chairman came to a specific finding that the building had been constructed in accordance with the sanctioned plan of the respondent Nos.5 to 7 and they had left a clear space of 1.50 metres from the existing boundary wall of the petitioners, as per the rules. Aggrieved by the aforementioned decision of the Chairman, Diamond Harbour Municipality dated April 21, 2012 this writ petition has been filed.
6. In the affidavit-in-opposition filed by the respondent authorities and affirmed by the present Chairman it has been stated that as soon as 4 the complain of the petitioner was received, the Municipality had issued a stop work notice. Thereafter, the respondent Nos.5 to 7 started the construction in terms of the approved sanctioned plan. It was further stated that an inspection was held by the Sub-Assistant Engineer and other officials of the concerned Municipality on January 13, 2012 at 4.30 p.m. At the time of inspection the respondent Nos.5 to 7 were present whereas, neither the petitioner nor the representative of the petitioners were present during the inspection. From the inspection report it appears that there was no encroachment on the land of the petitioners and the residential building of the respondents was being constructed after demolition of the old structure. It also appears from the report that the construction had been done leaving a clear space of 1.50 meters from the boundary wall as per the approved building plan.
7. In the affidavit-in-reply filed by the petitioners to the affidavit-in- opposition of the Municipal Authorities respondent No.1, it has been stated that the Chairman of the Municipality did not have any jurisdiction to sanction the building plan and as such the construction was wholly unauthorized. It was further stated that there had to be unauthorized construction, inasmuch as, the house could not have been constructed up to the roof level within 10 days from the date of sanction. Further according to the petitioners, the plan could not have been sanctioned because there were outstanding dues with the Municipality in respect of the lands of the respondents Nos. 5 to 7.
8. Pursuant to the direction of this Court the present Chairman of the Diamond Harbour Municipality filed another affidavit annexing the 5 resolution dated August 6, 2003 of the Board of Councillors, by which the then Chairman Pannalal Halder had been delegated the powers of the Board with regard to mutation and all matters relating to building plans in respect of the said Municipality. In the said affidavit-in-opposition the present Chairman also annexed several other orders relating to sanction of building plans by the Chairman of Diamond Harbour Municipality, namely, the said Pannalal Halder and also the subsequent Chairman in respect of other persons under the said municipality.
9. The respondent Nos.5, 6 and 7 also filed a detailed affidavit-in- opposition pursuant to the direction of this Court in which the sanctioned building plan was annexed. Their applications for mutation, and the orders issued by the Chairman, Diamond Harbour Municipality dated September 16, 2011 for approval of the site for construction of their residential building and also the order of approval of the plan dated September 19, 2011 were annexed. It appears that the building plan was sanctioned by Sri Pannalal Halder the then Chairman, Diamond Harbour Municipality on September 16, 2011.
10. The petitioners filed a reply to the subsequent affidavit-in- opposition filed by the respondent No.1 and stated that the resolution dated August 6, 2003 could not be adopted by the Chairman subsequently in order to sanction the building plan of the petitioner in the year 2011 as the resolution could have been in operation only for five years and not after the term of the said Board had expired.
11. It is the contention of the petitioner that in the garb of repair work, the building was constructed in the absence of a building plan. It is 6 also the contention of the petitioners that as the municipal taxes were outstanding the building plan could not be sanctioned.
12. Mr. Shyama Prosad Purkait, learned Advocate appearing on behalf of the Diamond Harbour Municipality urged that Section 20A of the Bengal Municipal Act, 1993 (hereinafter referred to as the said Act of 1993), empowered the Board of Councillors to delegate their powers or functions to the Chairman-in-Council or the Chairman. Similarly, Rule 26 of the West Bengal Muncipal (Building) Rules, 2007 (hereinafter referred to as the said Rules, 2007) also provided that the approved building plan by the Board of Councillors could be signed by any officer authorized in this behalf. According to Mr. Purkait, the Chairman was authorized to act on behalf of the Board of Councillors with regard to matters relating to mutation, development and building plans. The resolution was adopted in that regard on August 6, 2003 by the Board of Councillors and Pannalal Halder, the then Chairman was authorized to act on behalf of the Board of Councillors as a delegatee of the Board.
13. It was submitted on behalf of the respondent Nos.5 to 7 that they had demolished the old building in respect of which a stop work notice was given to them but they did not undertake any construction work before the plan was sanctioned. It was further submitted by the learned Advocate that the writ petition had been filed by the constituted attorney of petitioners, who was a land grabber and was trying to pressurize the respondent Nos.5 to 7 to give away their valuable land by making false allegations and initiating litigations before this Court. According to him, once the building plan had been approved by the 7 Chairman of the Municipality there could not be any impediment in raising the construction. He submitted that two inspections were held pursuant to the direction of this Court by the Municipal Authorities and the building had been found to be in accordance with the building plan.
14. I have heard the learned Counsels appearing on behalf of the respective parties. This writ petition arises out of an order passed by the then Chairman Pannalal Halder of Diamond Harbour Municipality dated April 21, 2012. The relevant portion of the said decision is set out hereinbelow:-
"On behalf of the applicants a written argument has been filed where from it appears that they have alleged that the opposite party raised their construction of building without taking sanction of PLAN from the office of the Municipality. So, in absence of such approved Plan, the construction is highly illegal and the same is liable to be demolished as per Law. Their further case is that in a proceeding U/S 144 (2) Cr.P.C. on 25.02.2011, opposite party submitted that with the prior permission of the Local Councillor they started construction. So, at the relevant time there was no such approved plan they stated there. And an approval was obtained during the pending of the writ application.
The Opposite Party represented by Sri Manas Khamaru in his defence submits that he has started to demolish certain parts of the building with the prior permission of Local Councillor, for new construction of the building. But, they started their construction work after getting approval from the Municipal Authority, i.e, after getting valid sanctioned Plan from the office (Photo copies as submitted by him).
It is seen from the report submitted by the S.A.E.P.Kr. Polley that it terms of my earlier direction the above Smt. Uma Khamaru & Others has contructed the alleged buildings leaving a clear space of 1.50 mtrs. From the existing boundary wall and that too as per approved plan from the office. Now, the question will come whether opposite party raise such construction before getting sanction and or after submission of the Building Plan. He stopped construction work when notice was received by him from the Municipal Office to stop construction and the same was only started after getting such approval."
15. The above mentioned order was passed pursuant to a direction by a learned Single Judge of this Court in W.P. No.4474 (W) of 2011. The relevant portion of the order of the learned Single Judge is quoted below:-
" The grievance of the writ petitioner in this writ petition is that in spite of an objection being lodged to the respondent no. 1, no further action has been taken in this regard by the said authority.8
Mr. Purkait, the learned advocate appearing for the Diamond Harbour Municipalities submits that notice to stop work has already been issued upon the private respondents.
Ms. Sharma, the learned advocate appearing for the private respondents submits that the constructions are undertaken strictly in terms of the sanctioned plan. Since the respondent no. 1 is a proper authority to consider the dispute raised in this writ petition whether the construction which has been undertaken by the private respondents, were strictly in terms of the sanctioned plan or in clear violation thereof, the respondent no. 1 is directed to take steps for ascertainment whether the constructions, which have been made by the private respondents, are in accordance with the sanctioned plan or in absence of the sanctioned plan or in deviation thereof, after giving an opportunity of hearing to all the parties in accordance with law."
16. The order impugned to this writ petition was passed upon a physical inspection carried out by the Sub-Assistant Engineer of the Municipality along with other officials of the Municipality in order to ascertain as to whether the respondent Nos.5 to 7 had raised the construction in the absence of a building plan or in deviation thereof. It is pertinent to mention here that W.P. No.4474 (W) of 2011 was filed challenging the inaction on the part of the respondent authorities in stopping illegal construction pursuant to the complain of the petitioners. The petitioners filed the earlier writ petition on the assumption that the respondent Nos.5 to 7 did not have a sanction plan and they were constructing without a sanction plan and were also obstructing the light and air enjoyed by the petitioners.
17. The initial challenge of the petitioner was inaction on the part of the authorities in stopping the respondent Nos.5 to 7 from continuing with the unauthorized construction in absence of a building plan. Thereafter, when the Municipal Authorities passed the order impugned to this writ petition the petitioners' contended that the sanction was not in accordance with law, inasmuch as, the same was given by the Chairman 9 and not the Board of the Councillors. In this regard reliance was placed by the petitioners on Sections 204 and 204A of the said Act of 1993.
18. It is an admitted position that once the Sub-Assistant Engineer of the Municipality with his team had found that the building had been constructed in accordance with the building plan and the Chairman had issued an order in that regard, this Court while exercising the power of judicial review cannot go beyond such findings on facts. The Chairman of the Diamond Harbour Municipality was directed by this Court to consider the matter and the Chairman had given a specific finding in that regard. As such, the factual aspect, that the construction was in accordance with the building plan is accepted by the Court in the absence of any contrary evidence. The petitioners have failed to show any illegality, irregularity, perversity in the decision making process. No evidence is forthcoming to show that the decision was otherwise erroneous and bad in law.
19. Now, coming to the question as to whether the Chairman had the authority to sanction the building plan, reference is made to Section 204 of the said Act of 1993 which is quoted below:-
"204. Prohibition of building without sanction:- No person shall erect or commence to erect any building or execute any specified building work, except with the previous sanction of the Board of Councillors and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation of such erection of building or [ execution of work and on payment of such fee as may be prescribed] [Provided that in case of allowing incremental Floor Area Ratio over and above the prescribed limit of Floor Area Ratio in the prescribed manner, rate or fee or charge payable for additional Floor Area Ration shall be decided in terms of "Circle Rates"of the State Government, and the formula for this purpose shall be finalized by the State Government, and all such additional fees or charges to be collected on account of granting of additional Floor Area Ratio will be payable to the State Exchequer directly, and as may be decided by the State Government, a portion of the collected fees or charges shall be allotted or transferred to the Municipalities for undertaking developmental schemes.] 10 Reference is further made to Section 20A of the Act of 1993 which is quoted below:-
"20A. Delegation of powers and functions:- (1) The Board of Councillors may, be resolution, delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Chairman-in-Council or the Chairman.
(2) The Chairman-in-Council may, by resolution delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Chairman or a member of the Chairman-in- Council.
(3) Subject to such resolution as may be made by the Chairman-
in-Council in this behalf, the Chairman may, by order, delegate, subject to such conditions as may be specified in the order, any of his powers or functions to the Vice-Chairman or to a member of the Chairman-in- Council or to the holder of any of the posts of officers referred to in sub- section (1) of section 53.
(4) Notwithstanding anything contained in this section, the Chairman-in-Council, the Chairman, the Vice-Chairman, a member of the Chairman-in-Councilor a holder of any of the posts of officers referred to in sub-section (1) of section 53 shall not delegate-
(a) any of its or his powers or functions delegated to it or him under this section, or
(b) such of its or his powers as may be prescribed."
20. Rule 26 of the Building Rules, 2007 reads as follows:-
"26. Singnature of approved plans:- When the Board of Councillors has given permission to execute any work, the approved plans of the work shall be signed by such officer as may be authorised in its behalf and in such manner as he may direct and one set of approved plan and one set of certified copy of the approved plan shall be handed over to the applicant."
21. The petitioners' contention that the sanction of the plan was given in contravention to Section 204 of the said Act of 1993 cannot be accepted, inasmuch as, Section 20A of the said Act of 1993 permits delegation of the functions of the Board of Councillors to the Chairman.
22. In the affidavit-in-opposition filed by the Municipal Authority the resolution of the Board of Councillors delegating it's power to the Chairman, that is, Pannalal Halder by name has been annexed. The said Pannalal Halder was the Chairman when the building plan of the respondent Nos.5 to 7 was sanctioned and he had exercised the power as a delegatee of the Board on the basis of the above mentioned resolution 11 dated August 6, 2003. It is also seen that several other building plans have also been sanctioned by the said Pannalal Halder on and from 2003 to 2012. The said Pannalal continued to be the Chairman of the concerned municipality on and from 2003 and onwards when the plans were sanctioned. It is specifically stated in the affidavit that on the basis of such resolution, the said Pannalal, Chairman of the Municipality and also the subsequent Chairman continued to sanction the building plans. The contentions of the petitioners that the Chairman Pannalal Halder did not have the authority to sanction the plan cannot be accepted. At the stage of reply the petitioners stated that the said resolution 2003 could not authorize Pannalal Halder to continue to sanction plans even after the expiry of the life of the said Board. This, is my opinion, is an attempt to enlarge the scope of the writ petition. The prayers in the writ petition are for demolition of unauthorized construction and for an order upon the respondent authorities restraining them from mutating the names of the respondent Nos. 5 to 7 in respect of the building in question.
23. The respondents have specifically averred in the opposition that the said Pannalal Halder acted on the basis of the resolution of the Board of Councillors and the same resolution was followed even by the subsequent Boards as the said Pannalal Halder continued to be the Chairman ever after 2008 and the delegation had been in respect of Pannalal Halder, the then Chairman in his personal capacity.
24. Even if the resolution dated August 6, 2003 was not adopted by a written resolution by the subsequent Boards yet, the de facto doctrine furnishes an answer to the action of Pannalal in sanctioning the building 12 plan of the respondent Nos.5 to 7. Reference is made to the decision of the Apex Court in Gokaraju Rangaraju vs. State of Andhra Pradesh reported in (1981) 3 SCC 132. The relevant paragraph is quoted below:-
"16. In the judgment under appeal Kuppuswami and Muktadar, JJ. Observed:
Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought ti ve cibsudered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at the later date. Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity.
17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, a judgment pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure.
Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack."
The ratio of the judgment of the Apex Court in Gokaraju Rangaraju (supra) was followed by the Apex Court in State of U.P vs. Rafiquddin and Others reported in 1987 (Supp) SCC 401
25. Admittedly, the concerned authorities had found on physical inspection that there was no unauthorized construction and the construction had been undertaken in terms of the building plan which was issued on September 19, 2011 by the Chairman of the Diamond 13 Harbour Municipality. It also appears that there is a delegation of power by the Board of Councillors to the Chairman Pannalal Halder by name with regard to matters relating to building plans by a resolution dated August 6, 2003. The Board of Councillors had delegated the power exclusively to Pannalal Halder. Although Pannalal Halder was delegated the power in 2003, he exercised the power to sanction all building plans in terms of the said resolution even in 2011 because Pannalal Halder was continuously the Chairman at the relevant point of time.
26. The petitioners having failed to establish before this Court that the construction of the respondent Nos. 5 to 7 was unauthorized are now attempting to enlarge the scope of the writ petition by questioning the delegation and the subsequent adoption of the said delegation by the subsequent Boards.
27. In this proceeding the petitioners have not challenged the legality of the plan nor have they prayed for cancellation of the plan. It is not the case of the petitioners that the sanction plan of the respondent Nos. 5 to 7 was obtained illegally by fraud or misrepresentation. The validity of the sanction is not under challenge before this court.
28. With regard to the judgment of Smt. Kanak Lata Saxena vs. Uttarpara-Kotrung Municipality & Ors., relied upon by the petition reported in 2010 (2) CLJ (Cal) 471, I find that the said judgment does not have any relevance in this case, inasmuch as, the ratio of the said judgment was that Section 217 of the said Act, 1993 only empowered the Board of Councillors to cancel a sanction plan and for taking consequential steps. Coming to the facts of this case, the subject matter 14 is not for cancellation of the sanction plan. The question which arose in this writ petition was whether the respondent Nos. 5 to 7 had constructed in deviation or in absence of a sanction plan and further whether there was any illegal or unauthorized construction. The municipal authorities having found the construction to be legal and in accordance with the sanctioned building plan no further relief can be granted in this petition.
29. The respondent Nos.5 to 7 being common citizens cannot be expected to know the legal implications of the delegation of power. They had applied for sanction of the building plan in accordance with law and the same was given to them by the Chairman of the Municipality. There is no reason as to why they would question the power and/or authority of the Chairman. Moreover the Chairman has performed the function as a delegatee of the Board and even if after 2008 a separate resolution had not been adopted, by applying the de facto doctrine the sanction of the building plan by the Chairman cannot be termed as illegal or unauthorized as the Chairman acted under the colour of lawful authority. Once the Chairman had approved the plan and given the sanction to the respondent Nos. 5 to 7 and the construction was raised in accordance with the plan and in terms of the building Rules 2007, the respondents Nos.5 to 7 cannot be penalized on the ground that there was no further resolution of the subsequent Boards of Councillors, adopting the resolution dated August 6, 2003 in writing although, it has been stated in the affidavit-in-opposition by the municipality that the subsequent Boards had adopted the said resolution which would be clear from the other plans which were sanctioned by the present chairman as well. This Court 15 cannot order demolition of the said building, inasmuch as, the building as it stands today is in accordance with the plan and in accordance with the building Rules 2007. Moreover, not only the plan of the respondent Nos. 5 to 7 but numerous plans have been sanctioned by the said Pannalal Halder on the basis of the resolution adopted on August 6, 2003. If the plan sanctioned in favour of the respondent nos.5 to 7 which was sanctioned after 2008 is declared to be illegal and not in accordance with law in the absence of subsequent written resolutions of the Board then, the sanctions of the building plans of many residents under Diamond Harbour Municipality will also become invalid. Such a situation will be against public interest and detrimental to those residents who are not even parties to this proceeding and who did not have any occasion to understand the legal implication of the action of the Chairman in sanctioning their building plans.
30. It is however important to clarify that if the present Board of Councillors of the said municipality desire to delegate the power to the present Chairman then, they should do so by a proper written resolution adopted at a Board Meeting and no further building plans should be sanctioned by the Chairman on the basis of the Resolution dated August 6, 2003.
31. With the above discussions and observations this writ petition is dismissed.
32. There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)