Calcutta High Court
M/S. Jaybee Mercantile Ltd. & Ors. vs Mayor-In-Council, Calcutta Municipal ... on 9 August, 1999
Equivalent citations: (2000)1CALLT46(HC)
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT M.H.S. Ansari, J.
1. The Instant writ appeal Is directed against the order of the learned single Judge dated 8th September. 1998 whereby and whereunder, the order of the Mayor-in-Council dated 31st December, 1991 directing demolition In respect of the premises No. 3, Madge Lane. Calcutta was upheld as valid and the writ application was dismissed.
2. The order under challenge in the writ application being the order passed by the Mayor-in-Council arose out of a direction issued in that behalf by the court in a Civil Suit. It may, therefore, be necessary to briefly refer to certain facts leading to the passing of the said order by the Mayor-in-Council Impugned in the writ petition before the learned single Judge.
3. In or about January, 1982, a building plan was sanctioned for premises No.3, Madge Lane, Calcutta consisting of basement, ground, first and second floors.
4. The Calcutta Municipal Corporation served a notice under section 401 of the Calcutta Municipal Corporation Act for demolition of unauthorised constructions at the said premises.
5. Certain shop owners filed a Title Suit being No. 340 of 1991 inter alia, for a declaration that the common area covered by 40% super built up area at the premises in question are ear-marked for common facilities and for a mandatory Injunction directing the defendants Including the Calcutta Municipal Corporation to demolish the unauthorised construction and/or any construction in deviation from the sanctioned building plan and to ensure construction and utilisation of the basement of the said premises in accordance with the sanctioned building plan.
6. By an order dated 11th May. 1991, an Interim Injunction order was issued restraining the defendants therein from letting out or transferring the possession of the common areas and the basement of the said premises. By another order dated 9th May. 1991 status quoorder was directed to be continued in respect of the basement of the premises.
7. By an order dated 26th September, 1991 His Lordship Justice Suhas Chandra Sen disposed of the application by directing the Commissioner, Calcutta Municipal Corporation to consider whether Irregularities have been condoned by him or not in respect of the said premises in question and also to decide what action in accordance with the law may be taken and to decide the nature of orders to be passed in accordance with the law.
8. By an order dated 14th October. 1991, the Commissioner, Calcutta Municipal Corporation passed an order showing the irregularities which according to him have not been condoned or regularised. The matter was directed by him to be placed before the Mayor-tn-Councl for appropriate orders under section 400(8) of the Calcutta Municipal Corporation Act, 1980.
9. The appellants herein moved a writ application questioning the said order of the Municipal Commissioner, Calcutta Municipal Corporation dated 14th October. 1991. By an order dated 7th November, 1991 Justice B.P. Banerjee directed the respondent Calcutta Municipal Corporation not to demolish the premises in question without serving notice upon the writ petitioners and without giving an opportunity of being heard.
10. By an order dated 19th December, 1991 passed by His Lordship Justice U.C. Banerjee, (As His Lordship then was) it was held that as the matter was still pending before the Mayor-in-Council and no demolition order was passed, the writ application was pre-matured. Leave was granted to withdraw the writ petition and the same was duly withdrawn.
11. By an order dated 12lh December, 1991. His Lordship Justice Suhas Chandra Sen in the suit pending before him directed that the order of status quo dated 27th September, 1991 will continue till the Mayor-in-Councll disposes of the case.
12. Against the said orders dated 12th December, 1991 an appeal was preferred to the Division Bench and the Division Bench by an order dated 20th December, 1991 directed inter alia that the Mayor-in-Council, Calcutta Municipal Corporation will dispose of the matter after hearing the parties by 3rd January. 1992 and the decision would be communicated to the parties within three (3) days thereafter.
13. It may be appropriate to extract the relevant portion of the order dated 20th December, 1991 passed by the Division Bench comprising of His Lordship Justice Ajit Kumar Sengupta and the Hon'ble Mr. Justice Shyamal Kumar Sen:
"Let the Mayor-in-Council, Calcutta Municipal Corporation dispose of the matters after hearing the parties by 3rd January, 1992 and the decision be communicated to the parties concerned within 3 days thereafter.
Mr. P.K. Jalan, the petitioner No.4 who Is present in court has given an undertaking-through his Advocate Mr. Kapoor that the City Express Super Market will be run by him. He has also undertaken to this court in the event, the Mayor-in-Council directs demolition of the said basement where the super market has been built, he will demolish the said construction. If found unauthorised.
In view of the aforesaid undertakings, the petitioner No.4 will be at liberty to run the market under the name and style of City Express Super Market until further orders of this court. The petitioner No.4 and/or the petitioners shall not give any licence or induct any tenant or llcencee or alienate the basement where market has been built without the leave of this court."
14. In compliance with the said direction, the Mayor-ln-Council disposed of the market whereupon the appeal was again listed before the Division Bench and by an order dated 25th February, 1994, the same was disposed of with the directions as under:
"Having regard to the facts and circumstances of this case and having regard to the report submitted by the Mayor-ln-Council and the Dy. City Architect this appeal Is disposed of by the following orders :--
(a) The Calcutta Municipal Corporation will be at liberty to proceed in accordance with law against unauthorised construction, if any,
(b) The appellant will be at liberty to urge the points taken In the affidavit dealing with the said report of the Dy. City Architect before the appropriate forum.
(c) All Interim orders are vacated excepting that no construction shall be made except in accordance with the sanctioned plan. We make it clear that we have not expressed any opinion on the validity of the order passed by the Calcutta Municipal Corporation authority or on the contentions raised by the appellant before us, Mr. Kapoor has made a prayer that the Corporation authority should not proceed at least for two weeks to enable the appellant to pursue the remedies as are open to them. We are, however, not Inclined to grant any, stay but we direct, the Corporation authority to proceed after a fortnight from the date. Liberty is also given to the respondents to make representation before the Calcutta Municipal Corporation."
15. By an order dated 4.3.1994, the appeal court restrained the appellant from transferring, allneatlng or encumbering the properly.
16. On or about 31.12.1994. the Mayor-tn-Council passed an order directing demolition. Thereupon the writ petition No. 686 of 1994 was filed by the appellants assailing the validity of the order passed by the Mayor-
in-Council.
17. The learned trial Judge dismissed the writ petition, inter alia. In view of the aforementioned undertaking.
18. Mr. Jayanta Mitra, learned senior counsel for the appellants submitted that the learned Judge In the order under appeal proceeded on a wrong premise that no appeal had been preferred against the orders passed by His Lordship Justice Suhas Chandra Sen. It was further submitted that the learned Judge erred In solely relying upon the undertaking of Mr. P.K. Jalan which undertaking, it is contended, lost all Its force, In view of the final orders passed by the appeal court dated 25th February, 1994 and in any event, the undertaking was on his own behalf and not binding upon the appellants and that the undertaking was confined only to the basement. The writ petition, it was submitted could not have been dismissed on that ground.
19. Mr. Jayanta Mltra, learned senior counsel for the appellants straneously urged that section 400(8) of the Calcutta Municipal Corporation Act has no applicability in the Instant case and the Mayor-1 n-Coun ell could not have exercised the power under that section 400[8) of Calcutta Municipal Corporation Act on the facts of the instant case and in doing so, there has been total non-application of mind and misconstruction of the powers.
20. On behalf of the respondent, Calcutta Municipal Corporation, it was submitted that the impugned orders had been passed pursuant to the reference made In that behalf by the Municipal Commissioner pursuant to an order of this court. That order of the Commissioner was questioned in the writ application which was eventually withdrawn and the petitioners are, therefore, estopped from questioning the Jurisdiction or authority of the Municipal Commissioner making the reference or the Mayor-in-Council passing the impugned orders.
21. It was further submitted on behalf of the Calcutta Municipal Corporation that a thorough enquiry preceded the passing of the orders by the Municipal Commissioner and ample opportunity was afforded to the parties of being heard in the matter and placing all such record upon which they relied upon. Several Illegalities were noticed and the unauthorised constructions in the premises which had not been regularised by the Calcutta Municipal Corporation in the earlier proceedings alone have been directed to be demolished.
At the outset, it must be noted that a single Judge of this court in Maula Box & Ors. v. State of West Bengal & Ors., held that the impugned sub-section (8) of section 400 of the Calcutta Municipal Corporation Act, 1980 as ultra-vires. It must also be stated here that in an earlier unreported Judgment dated 9th December, 1987 (Aftab Ahamed v. C.M.C. & Ors.), the vires of the said sub-section (8) of section 400 of the Act were upheld in the following terms;
"..... in my view no arbitrary power has been given to the Calcutta Municipal Corporation. The petitioner cannot be heard ..... merely because emergency power has been vested in the highest body of the Calcutta Municipal Corporation by provision of section 400(8) to take action in a power case the Calcutta Municipal Corporation should be restrained from exercising such power even if the petitioner is found to have done unauthorised construction and conditions exist which shall for exercise of such power. Emergency power has been given to deal with cases where immediate action Is necessary."
22. In Maula Box's case, cited supra, the said Judgment has been noticed In paragraph 25 of the Judgment and distinguished on the ground that the Learned Judge did not go into in depth consideration of the constitutional validity of the impugned sub section. That apart the appeal against the said judgment In Maula Box case is still pending on the file of this High Court.
23. The vires of the said section is not in question in the instant proceedings and we shall, therefore, not deal with the aspect of the matter and proceed on the basis that sub-section (8) of section 400 Is valid.
24. In the judgment under appeal, two questions were framed by the learned Judge. On the first question viz., whether the unauthorised constructions have already been sanctioned by Imposing the penalty by the Corporation or not? It must be stated that in the order of the Municipal Commissioner, Calcutta Municipal Corporation, the Irregularities have been noted and the unauthorised constructions or deviation which have been regularised have been considered. Reference to the various demolition cases initiated In under section 400(1) of the Calcutta Municipal Corporation Act have been brought on record and extracted In the Division Bench Judgment dated 25th February, 1994, being annexure 'C' to the affidavit-in-opposition of Basant Kumar Chitlangia affirmed on 1st December , 1998. It is thus apparent that the directions for demolition passed by the Mayor-in-Council are in respect of those unauthorised constructions in the premises which have not been regularised by the Calcutta Municipal Corporation. They are;
"(1) Unauthorised constructions In the basement.
(2) Mazzanlne floors In the basement, ground and 1st floors.
(3) At the northern portion in the ground floor R.C.C. staging for the A.C. Plant room in the mandatory open space also with a raised plant form to provide the A.C. Duct.
(4) A room abutting the boundary wall in the N-W portion of the Mandatory open space at the ground floor.
(5) A generator room with a block of toilet in the S/W portion of the ground floor.
(6) 3(three) Nos, of toilets with steel staircase, 8 Nos. of small rooms along with an office room construct under the two water tanks and pargola in the terrace.
(7) An A.C. plant room and a toilet block constructed on the east in the terrace."
25. The operative portion of order Impugned In the writ petition reads as under;
"In the circumstances Mayor-in-Council is of the view that the findings of the Municipal Commissioner made on 14.10.91 are substantially correct and shall be acted on. Mayor-in-Council expresses their grave concern that the party constructed unauthorlsedly and big Market Complex at the basement even after the findings of the Municipal, Commissioner making the building more prone to fire hazards. Therefore, the Mayor-in-Council resolves that the unauthorised constructions mentioned above shall be demolished forthwith."
26. No doubt as contended by Mr. Jayanta Mitra. learned senior counsel for the appellant that the power under sub-section (8) of the section 400 is to be exercised in emergency but that does not militate against the power vested In the Meyor-in-Council to pass the orders as It did.
27. It Is true that In terms of the provisions of sub-section (1) of section 400 of the Calcutta Municipal Corporation Act It Is the Commissioner who can pass an order of demolition upon compliance of the requirements stated therein; whereas under sub-section (8) there of the Mayor-ln-Councll can do so in the case of emergency. In the former case, the principles of natural justice are required to be complied with whereas; in the latter case the same is not necessary. Although those appropriate orders under the aforementioned provisions can be passed by two different authorities. Here in the factual position is absolutely different Both the Municipal Commissioner as well as the Mayor-ln-Councll had acted in terms of the orders passed by this court. It Is true that the Impugned orders has been passed by the Mayor-in-Councll purported to be in exercise of sub-section (8} of section 400 of the Act but In the Instant case the principles of natural Justice have been compiled with. Once the principles of natural justice have been complied with, an order could be passed also under sub-section (1) of section 400 of the said Act. Such a finding having been arrived at by the Municipal Commissioner, the same sub-serves the requirements of law but keeping in view the orders passed by this court the Municipal Commissioner had to refer the matter for passing an appropriate order presumably under the belief that such an order can be passed under sub-section (8} of section 400 of the Act.
28. It is now well settled principles of law that what matters is the substance and not the form. If the requirements of law have substantially been complied with only because a wrong provisions of law has been mentioned, the same shall not vitiate the order itself. Wrong mentioning or non-mentioning of a provision as is well known does not vitiate the order If the authority concerned has the requisite source of power. Such a power has been conferred upon the Mayor-in-Council by this court.
29. In other words, there is no Inherent lack of Jurisdiction in the Mayor-in-Council in exercising the power directing demolition forthwith of any works being carried on in contravention of the provisions of the Act. That there was no emergency in the matter for the Mayor-in-Councll to exercise that power would not denude the power vested in it to act In terms thereof. The only condition being to record reasons In writing before the action was taken by the Mayor-in-Council.
30. The impugned order passed by It was preceded by an elaborate enquiry. The challenge to the Jurisdiction of the Municipal Commissioner referring the matter to the Mayor-in-Councll by filing a writ petilion by the appellants, was at their own instance withdrawn. Even subsequently, the Division Bench in the orders referred to supra, granted liberty to the Mayor-in-Council. Calcutta Municipal Corporation to dispose of the matter In accordance with the law.
31. We are in the circumstances not persuaded to hold that the Impugned order of demolition passed by the Mayor-in-Council is without Jurisdiction.
32. As to the contention of Mr. Jayanta Mitra, learned senior counsel for the appellants that with respect to the undertaking given by Mr. P.K. Jalan extracted in the order of the Division Bench dated 20th December, 1991 (supra), suffice it to state that the said undertaking does not preclude the appellants from initiating proceedings or by filing the writ application questioning the Illegality or validity of the orders impugned in the writ application. The undertaking for demolition of unauthorised constructions is to the effect "that In the event, the Mayor-in-Council directs the demolition of the basement", It pre-supposes that the orders are passed valldly. Merely, because an undertaking was given for demolition. It will not preclude an aggrieved party from taking recourse to law when such remedy is available to him in law.
33. We are, however, not Impressed with the contention that the undertaking lost its force, on the final dismissal of the appeal by the Division Bench or that Mr. P.K. Jalan was relieved of the undertaking given by him to the fact that in the event Mayor-ln-Council finds the impugned constructions to be unauthorised, he will demolish the structures. Similar contention was advanced before Justice Samaresh Banerjea in writ Petition No. 686 of 1994 and while refusing the Interim order prayed for repelled the said contention on the ground that the Division Bench while disposing of the appeal never discharged the said Mr. P.K. Jalan from such undertaking.
34. On behalf of the Calcutta Municipal Corporation, It was rightly urged that only because of the undertaking given by Mr. Jalan, permission was granted to run the market in the basement under the name and style of City Express Super Market. For the satd reason, there is no force in the contention that the undertaking was given in the personal capacity and not on behalf of the appellants. It is seen from the order dated 20th December, 1991 of the Division Bench that with reference to Mr. P.K. Jalan therein, petitioner No.4 it was directed that "in view of the aforesaid undertaking", the Petitioner No. 4 will be at liberty to run the market under the name and style of City Express Super Market. Appellants were not granted the said liberty. Appellants can not take advantage only of that portion of the order which is favourable to them. t.e. with regard to running of the market and dissociate themselves with the undertaking given for demolition when so directed.
35. The appellants have taken advantage of the undertaking given by one of them. Having taken advantage thereof, they are estopped and precluded from raising a contention that they are not bound thereby. It Is a well settled principles of law that a person cannot be permitted to approbate and reprobate at the same time.
36. For the reasons afforested, we dismiss the appeal though for different reasons upholding the orders of demolition dated 31st December. 1991 passed by Mayor-in-Council in respect of the premises in question.
There shall, however, be no order as to costs.
37. Appeal dismissed