Calcutta High Court
Smt. Arati Pal With Sri Nirmal Kumar ... vs Unknown on 18 November, 1993
Equivalent citations: (1994)1CALLT466(HC)
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT Altamas Kabir, J.
1. These two matters are taken up for disposal together as they involve common questions of law and fact which are more or less similar.
2. In both these two matters, notices isssued by the Howrah Municipal Corporation under Section 177(1) of the Howrah Municipal Corporation Act, 1980, have been challenged as being ultra vires, on the ground that it vests certain powers in the Commissioner without laying down any guidelines for exercise of such powers, giving scope for arbitrary exercise of such powers in identical cases.
3. Appearing in support of the writ application filed by Smt. Arati Pal, Mr. Mukul Prokash Banerjee, learned advocate, firstly submitted that in the absence of any guidelines, the powers vested in the Commissioner under sub-section (1) of Section 177 of the aforesaid Act gave him the absolute and unfettered discretion to take recourse to any of the measures provided for therein. Mr. Banerjee pointed out that under the aforesaid provisions, the Commissioner could in identical circumstances either make an order directing that a construction be stopped or demolished or such addition or alteration therein be made as considered necessary. Mr. Banerjee submitted that in the absence of any guideline, the Commissioner was free to choose any of the three measures, entirely according to his whims and fancy, which could lead to arbitrary and discriminatory exercise of power.
4. Mr. Banerjee submitted that such uncanalised power was arbitrary and ultra vires the provisions of Article 14 of the Constitution, being contrary to the concept of fairness in executive action.
5. In support of his aforesaid submissions, Mr. Banerjee referred to a Special Bench decision of this Court in the case of S.M. Nawab Ariff v. The Corporation of Calcutta and Ors., reported in 64 CWN at page 1. In the said case, certain provisions of the Calcutta Municipal Corporation Act, 1951, relating to recovery of consolidated rate from defaulters was. struck down by a Special Bench of this Court as ultra vires Article 14 of the Constitution, on the ground that no principle or policy had been laid down for guiding the exercise of discretion by the Municipal Authorities under Section 251 of the said Act. Pointing out to the reference made in the said judgment to the case of R.K. Dalmia v. S.R. Tendolker, , Mr. Banerjee pointed out that the Supreme Court had in the said case observed that in determining the question of the validity or otherwise of a statute, the Court would have to scrutinise and see whether the statute has laid down any principle or policy for the guidance of and the exercise of a discretion vested in the Government. If after such scrutiny, it is found that no principle has been laid down for the exercise of such discretion by the Government, then the Court will strike down the statute on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government, so as to enable it to discriminate between persons or things similarly situated.
6. In this behalf, Mr. Banerjee also referred to a decision of the Supreme Court in the case of S.G. Jaisinghani v. Union of India and Ors., , wherein the Hon'ble Supreme Court observed that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by the rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.
7. Mr. Banerjee also referred to the decision of the Supreme Court in the case of Devi Das Gopal Krishnan v. State of Punjab and Ors., where, inter alia, similar sentiments were expressed.
8. Mr. Banerjee then submitted that the doctrine of fairness in all State action has since been explained in several decisions of the Supreme Court, as also this Court. Mr. Banerjee particularly referred to the case of Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors., . Mr. Banerjee emphasised the observations made by the Supreme Court in reference to its decision in the case of S.G. Jaisinghani (supra) regarding the rule of law.
9. Apart from the above, Mr. Banerjee also referred to the provisions of Section 402 of the Calcutta Municipal Corporation Act, 1980, which empowers the Municipal Commissioner to direct a party to make alterations or to show cause in respect thereof.
10. Comparing the provisions of Section 177(1) of the Howrah Municipal Corporation Act, 1980, and Section 402 of the Calcutta Municipal Corporation Act, 1980, Mr. Banerjee submitted that while a certain guideline had been provided for exercise of the power under Section 402, no such guideline had been provided in Section 177(1).
11. Mr. Banerjee then submitted that the provisions of Section 177(1) of the Howrah Municipal Corporation Act were also contrary to the provisions of Article 300A of the Constitution which provides that no person shall be deprived of his property save by authority of law. Mr. Banerjee urged that the owner of a property was entitled to use the same in such manner as he thought fit, without causing any disturbance to the adjoining owners in the enjoyment of their properties and without causing any hazards the public at large.
12. Mr. Banerjee submitted that to prevent such disturbances, the legislature had thought it fit to place a check on a person's right to utilise his property by enacting building laws and rules so as to restrict the enjoyment of a property within the boundaries of such enactments and rules. Mr. Banerjee contended that the provisions of such enactments could not, however, be contrary to the provisions of the Constitution.
13. Mr. Banerjee submitted that in the instant case, by vesting the Commissioner, Howrah Municipal Corporation, with unfettered powers, the legislature had acted contrary to the provisions of Article 300A of the Constitution, in that the petitioner's enjoyment of his property had been placed at the whims and caprice of the Commissioner, Howrah Municipal Corporation.
14. On the merits of the case, Mr. Banerjee submitted that if it be presumed that sub-section (1) of Section 177 was intra vires, even then, under the said provisions, the Commissioner was entitled to pass orders either to stop work in connection with the erection of any building, or direct demolition of the same, or direct that such addition or alteration be made thereto1 as was considered necessary. Mr. Banerjee submitted that under the aforesaid provisions, the Commissioner could not direct the person concerned to do all the three things. Mr. Banerjee submitted that having directed the petitioner to stop the work in question, on the basis of the impugned notice, being Annexure "E" to the writ petition, the Commissioner was no longer competent to pass any other order under sub-section (1) of Section 177, having exhausted the authority vested in him after issuance of the initial notice to stop work.
15. Mr. Banerjee submitted that having regard to the above, it was no longer open to the Howrah Municipal Corporation to issue the show-cause notice, being Annexure "F" to the writ petition, under Section 177(1) of the Howrah Municipal Corporation Act, 1980."
16. Mr. Banerjee then submitted that Section 177 of the aforesaid Act did not contemplate any unauthorised construction or deviation from any sanctioned plan and, accordingly, both the impugned notices under Section 177(1), being Annexure "E" & "F" to the writ petition, were defective and cannot be said to be notices under Section 177(1) of the aforesaid Act.
17. Mr. Banerjee also submitted that the notice to show-cause was absolutely vague and no proper details had been given which could enable the petitioner to reply to the same effectively.
18. In this connection, Mr. Banerjee referred to certain observations made with regard to the "High Authority" theory referred to in-extenso by the Hon'ble Supreme Court in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., . In the said case, while considering other factors, the Court was also called upon to consider the question whether the power to be exercised, even in the absence of guidelines, is valid, merely because such power is to be exercised by a high official. Disagreeing with such proposition, it was observed by the majority of the learned judges that there was nothing to support the aforesaid theory and that arbitrary rules without any guidelines could not be validated merely because the powers conferred under such rules were to be exercised by high officials.
19. Drawing a parallel to the facts of the present case, Mr. Banerjee submitted that simply because the Commissioner, Howrah Municipal Corporation, was to exercise the powers conferred under Section 177(1) of the Howrah Municipal Corporation Act, 1980, it did not render such power valid in the absence of any proper guidelines.
20. Mr. Banerjee submitted that sanction had been granted to the petitioner to construct a four-storey building (ground + three). Mr. Banerjee pointed out that, although, the plan had been submitted for a five-storey building, that sanction had been granted only in respect of four storeys. Mr. Banerjee submitted that having granted sanction upto four storeys, it was no longer open to the Howrah Municipal Corporation, to refuse to sanction the 5th storey and such refusal amounted to violation of the petitioner's rights under Article 300A of the Constitution.
21. Mr. Banerjee urged that the petitioner was entitled to use and enjoy the property in question and to construct the 5th storey and unless it created any health and safety hazards, there was no reason for the Howrah Municipal Corporation to refuse to grant sanction therefor, as it amounted to deprivation of the petitioner of his property without proper legal authority.
22. The next branch of Mr. Banerjee's submissions was that the petitioner had not applied for any fresh sanction as such, but had merely reminded the Howrah Municipal Corporation to grant sanction in respect of the 5th storey,, which had not been, granted' earlier. Mr. Banerjee submitted that it was not a case of submission of a fresh plan, but a request to the Municipal Authorities to sanction the 5th storey for which the plan had been submitted earlier in 1987. Mr. Banerjee submitted that the sanction to be granted in respect of the 5th storey was not in accordance with the provisions of the new Building Rules, but in accordance with the Building Rules, as existed in 1987, since the building plan had been submitted in 1987 and no fresh plan had been submitted for sanction of the 5th storey.
23. Referring to Annexure "H" to the writ petition, Mr. Banerjee pointed out that only a copy of the plan which had been submitted earlier on 23rd June, 1987, was forwarded to the Municipal Authorities for granting sanetion in respect of the 5th storey, since such sanction had not been granted earlier. Mr. Banerjee urged that it could not, therefore, be said that the petitioner had submitted a new plan for sanction and that the same was required to be in compliance with the provisions of the Building Rules of 1990.
24. Mr. Banerjee submitted that the Howrah Municipal Corporation and its authorities had acted erroneously in applying the new rules to the plan which had been submitted in 1987 and had wrongly rejected the same, although, the plan had not been submitted under the new rules but under the rules as existing on 23rd June, 1987.
25. Mr. Banerjee referred to the letter from the Howrah Municipal Corporation, being Annexure "X" to the application for amendment, wherein an attempt had been made to bring the plan submitted by the petitioner in 1987 within the ambit of the new Building Rules, which according to Mr. Banerjee was entirely illegal and without any logical and/or factual basis.
26. Mr. Banerjee submitted that the Howrah Municipal Corporation had not filed any Affidavit-in-Opposition and that the averments made in the writ petition went uncontroverted so far as the Howrah Municipal Corporation was concerned.
27. Mr. Banerjee lastly submitted that even if the 5th storey had been constructed without the prior sanction of the Howrah Municipal Corporation, no direction could be given for demolition of the same without taking into consideration the factors relating to public inconvenience and public safety and health, or whether the deviation was of such nature which required the construction to be demolished.
28. Mr. Banerjee submitted that the said question had been considered by the Supreme Court in the case of Rajatha Enterprises v. S.K. Sharma and Ors., , wherein on a consideration of the aforesaid factors, the Hon'ble Supreme Court had allowed the petitioners therein to retain certain portions constructed in excess of the permissible Floor Area Ratio and had set aside the order of demolition which had been upheld by the Karnataka High Court.
29. Appearing on behalf of the Howrah Municipal Corporation and its authorities, Mr. A.P. Sircar with Mrs. S.K. Mukherjee, firstly submitted that, although, Mr. Banerjee had during his submissions challenged the vires of sub-section (1) of Section 177 of the Howrah Municipal Corporation Act, 1980, there were no pleadings in the writ application to that effect.
30. Mr. Sircar then referred to provisions of Section 414 of the Calcutta Municipal Act, 1951, and sought to compare the same with the provisions of 177(1). of the Howrah Municipal Corporation Act, 1980. Mr. Sircar urged that the language of Section 414 of the 1951 Act was more or less similar to the language of Section 177(1) of the Howrah Municipal Corporation Act, 1980. Mr. Sircar urged that sufficient protection had been provided for against any arbitrary action in sub-section (1) of Section 177 itself. Mr. Sircar submitted that the proviso to sub-section (1) of Section 177 made it clear that no order was to be passed under sub-section (1) unless the concerned person had been given a reasonable opportunity of being heard in accordance with the procedure prescribed. Mr. Sircar submitted that there was a similar provision in Section 414 of the 1951 Act and proceedings taken on the basis thereof could not, therefore, be said to be summary in nature.
31. Mr. Sircar then submitted that the psovisions of the Howrah Municipal Corporation Act, 1980, as also that of the Calcutta Municipal Corporation Act, 1980, were for the benefit of the public at large and to ensure that no safety and/or health hazards were created by the owner of a property by raising constructions indiscriminately thereupon. Mr. Sircar sub- mitted that in order to construe the provisions of the two enactments and the provisions thereof, what was required to be seen was whether the provisions sought to attain the objects for which the statutes had been enacted. Mr. Sircar submitted that it is in that light that the provisions of Section 177 of the Howrah Mhnicipal Corporation Act, 1980, would have to be examined.
32. Mr. Sircar submitted that it would have to be seen whether there was any nexus between the provisions of Section 177 of the Howrah Municipal Corporation Act, 1980, and the objects which the said Act as a whole sought to achieve. Mr. Sircar urged that if it was found that Section 177 sought to further the objects of the Act itself, then, in such event, it could not be held to be arbitrary or ultra vires the provisions of Article 14 of the Constitution.
33. Referring to the Special Bench decision of this Court in the case of S.N. Nawab Ariff v. Corporation of Calcutta and Ors. (supra), Mr. Sircar submitted that the facts of the said case had no application to the facts of the present case and the decision arrived at therein could, therefore, have no application to the facts of the present case.
34. Mr. Sircar further urged that while in the aforesaid case decided by the Special Bench, no guidelines had at all been provided in respect of the various provisions which were struck down as being arbitrary and ultra vires the provisions of Article 14 of the Constitution, in the present case, the situation was different since guidelines had been laid down in subsection (1) of Section 177 as to how the power conferred therein was to be exercised by the Commissioner.
35. Drawing a parallel with the provisions of Section 414 of the 1951 Act, Mr. Sircar referred to a Full Bench decision of this Court in the case of Purusottam Lalji v. Ratanlal Agarwal, , wherein while considering the provisions of Section 414 of the 1951 Act, the Full Bench held that the discretion vested in the Commissioner under Section 414 was for the purpose of facilitating the scheme and the object of the 1951 Act. It was further observed that the discretion must be used bona fide and not on any extraneous ground and the section itself enjoined that the Commissioner would exercise the discretion given to him quasi judicially by giving the parties an opportunity to show-cause.
36. Mr. Sircar submitted that it had been held by the Full Bench that certain discretion had been vested in the Commissioner which was to be exercised in a quasi-judicial manner.
37. Mr. Sircar also referred to the decision of the Supreme Court in the case of Corporation of Calcutta v. Mulchand Agarwal, reported in, , wherein the Supreme Court had occasion to consider the provisions of Sections 363 and 438 of the Calcutta Municipal Act, 1923. While considering the said provisions, the Supreme Court observed that it was a well-settled principle that when the legislature entrusted to an Authority the power to pass an order in its discretion, an order passed by that Authority in exercise of that discretion, is in general not liable to be interfered with by the Court, unless it can be shown to have been based on some mistake of facts or misapprehension of the principles applicable thereto.
38. In this behalf, Mr. Sircar also referred to a Single Bench decision of this Court in the case of Banwari Lal Goal v. Commissioner, Corporation of Calcutta, reported in 1987 CWN at Page 670, wherein similar views were expressed and it was observed further that where the Court is unable to hold that the exercise of discretion by the Commissioner under Section 414(3) of the Calcutta Municipal Act, 1951, had been made arbitrarily and without consideration of relevant facts, the Court exercising writ jurisdiction, cannot substitute its own views and hold that the said unauthorised constructions ought to be allowed to stand.
39. Mr. Sircar further submitted that in Municipal matters, the provisions of the statute should be construed liberally. Relying on a passage from M.N. Das's "Law of Ultra Vires," Mr. Sircar submitted that such liberal construction was necessary for securing the objects of the statute and for the proper administration of municipal affairs.
40. Referring to the provisions of Section 177(1) of the Howrah Municipal Act, 1980, Mr. Sircar urged that the same could be divided into two parts. Mr. Sircar submitted that the Second part of sub-section (1) which vested the Commissioner with powers to take certain actions, was controlled by the first portion thereof.
41. Mr. Sircar submitted that the basis on which the Commissioner was to take action was provided in the first portion of sub-section (1) which pro- vides that where the erection of any building or the execution of any work in pursuance thereof has been (i) commenced, or (ii) is being carried on, or (iii) has been completed without or contrary to the sanction or in contravention of any of the provisions of the Act or the Rules and the Regulations made thereunder, the Commissioner may in addition to any other action that may be taken under the Act, make an order directing that (i) such erection or work be stopped or (ii) demolished or (iii) such addition or alteration thereto be made as the Commissioner considered necessary.
42. Mr. Sircar pointed out that the Commissioner was empowered to take action in the circumstances mentioned in the first portion of subsection (1).
43. Mr. Sircar submitted that the stoppage and/or demolition and/or addition or alteration to be effected, would be in consonance with the stage in which the construction was at the time when the order was to be made. Mr. Sircar urged that in the event the work had been commenced or was being carried on, the Commissioner had the discretion to direct the work to be stopped and if the same had been completed, then in such event, the Commissioner had the discretion to either direct the same to be demolished, if the same was against public safety and health hazards, or direct such addition or alteration to be made to the structure to bring it within the scope and ambit of the Building Rules as existing.
44. Mr. Sircar submitted that even such discretion was to be exercised by the Commissioner only after a hearing had been given to the concerned parties where the said party would have an opportunity to explain his position. Mr. Sircar urged that it could not by any stretch of imagination be contended that the provisions of sub-section (1) were arbitrary and gave an unfettered discretion to the Commissioner to pass such orders as he chose, and the writ petitions were, therefore, liable to be dismissed not only on facts but also in law.
45. Having regard to the submissions made on behalf of the respective parties in the two writ applications, and the circumstances in which the same have been filed, I am not inclined to grant any relief to the petitioners as far as the impugned constructions are concerned. In the case of Smt. Arati Pal, the construction of the 5th storey was effected without any sanction granted by the Howrah Municipal Corporation, while the case of Sri Nirmal Kumar Tekriwal is one of alleged deviation from the sanctioned plan. It is not for the writ Court to decide as to whether the impugned constructions should be allowed to remain. That is the prerogative of the Municipal authorities under the Howrah Municipal Corporation Act, 1980, and it is they who will have to decide in accordance with law as to whether the impugned structures can be retained.
46. What this Court is required to see is whether the concerned autho- rities have acted within the powers vested in them, or whether they have exceeded their jurisdiction.
47. There is no merit in the submissions made by Mr. Banerjee in the case of Smt. Arati Pal that the petitioner had simply completed construction in accordance with the plan which had been submitted for sanction initially and in respect whereof a renewed request was made for sanctioning the 5th storey, which had not been sanctioned earlier. In the absence of sanction, the petitioner was not entitled to construct the 5th storey.
48. I am; also not inclined to accept Mr. Banerjee's submissions relating of Article 300A of the Constitution, since the restrictions sought to be imposed by the Building Rules are reasonable restrictions to subserve the welfare of the public by eliminating safety and health hazards.
49. As far as the application of Sri Nirmal Kumar Tekriwal is concerned, it is the Howrah Municipal Corporation which will have to ultimately decide as to whether any deviation has been effected from the sanctioned plan and, if so, what further steps are required to' be taken in that regard.
50. Accordingly, as mentioned hereinbefore, no relief, as prayed for, can be granted to the petitioners, as far as the constructions in both the cases are concerned.
51. The concerned authorities of the Howrah Municipal Corporation will be at liberty to proceed with the proceedings initiated under Section 177 of the Howrah Municipal Corporation Act, 1980. However, while disposing of the matters, the said authorities must give due regard to the decision of the Supreme Court in the case of Rajatha Enterprises (supra), which has been referred to the letter written by Smt. Arati Pal on 22nd May, 1993, showing cause, being Annexure "G" to her writ petition, and has been relied upon by Mr. Banerjee in the course of his submissions.
52. As far as the submissions relating to the vires of sub-section (1) of Section 177 of the Howrah Municipal Corporation Act, 1980, are concerned, I am not convinced that the same vests arbitrary powers in the Commissioner, Howrah Municipal Corporation. The Commissioner has been vested with power to take certain actions in certain circumstances, which have been separately set out in sub-section (1) of Section 177 of the above Act. Section 177 of the Act reads as follows :-
"Section 177. Order of demolition or stoppage of buildings and works.
(1) Where the erection of any building or the execution of any work in pursuance thereof has been commenced or is being carried on, or has been completed without or contrary to the sanction or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Commissioner may in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be stopped or demolished or such addition or alteration thereto be made as the Commissioner considers necessary, by the person at whose instance the erection or the work has been commenced, or is being carried: on, or has been completed :
Provided that no order under this provision shall be made unless such person has been given a reasonable opportunity of being heard in accordance with such procedure as may be prescribed.
(2) The Commissioner may make an order under sub-section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the. consolidated rate on lands and buildings.
(3) Any person aggrieved by an order of the Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under this Chapter.
(4) No court shall have jurisdiction in any matter for which provision is made under this Chapter for appeal to the Municipal Building Tribunal.
(5) If a person fails to comply with a conclusive order of the Commissioner or the Tribunal, as the case may be, under this section, the Commissioner may himself cause the order to be carried out and rcover the expenses thereof from such person as an arrear of tax under this Act.
(6) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or any work being carried on in contravention of the provisions of this Chapter, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith.
53. As submitted by Mr. A.P. Sircar, any order to be passed by the Commissioner is dependent on the stage of the construction work and is to be passed only after giving the concerned party an opportunity of hearing. Furthermore, the order to be passed by the Commissioner is not final and is subject to appeal under sub-section (3) of Section 177. The discretion vested in the Commissioner is not of such nature as to allow him to act arbitrarily or in a discriminatory manner. In view of the right of appeal, the Commissioner will have to be circumspect while passing any order under the aforesaid provision. In the event the concerned person is aggrieved even by the order of the Appellate Authority, he/she has further remedy in this Court by way of writ proceedings.
54. In my view, not only are the principles of natural justice duly satisfied, but there are sufficient checks and balances to prevent arbitrary and capricious exercise of the powers vested in the Commissioner under subsection (1) of Section 177 of the above Act. For purposes of administrative convenience, a certain amount of discretion is required to be vested in an authority so as to enable such authority to take action which would fit a given situation.
55. The decisions cited by Mr. Banerjee on the question of ultra vires cannot, in my view, have any bearing on the facts of this case, as some sort of guideline is provided in the statutory provision itself. This is not a case where the statute gives no guideline whatsoever and vests arbitrary and uncontrolled power in the Commissioner, Howrah Municipal Corporation, but, on the other hand, only provides him with a certain latitude to pass orders to fit the circumstances.
56. It is not, therefore, necessary for me to deal with all the various decisions cited on behalf of the respective parties in the above regard.
57. The writ applications, therefore, fail and are disposed of in the light of the above observations, but without costs.
58. Let xerox copies of this judgment be made available to the learned advocate of the respective parties, on their undertaking to apply for and to obtain a certified copy of the same.