Calcutta High Court
Bonwarilal Goel vs Commissioner, Corporation Of Calcutta ... on 29 March, 2004
Equivalent citations: 2004(3)CHN19
Author: Soumitra Pal
Bench: Soumitra Pal
JUDGMENT M.H.S. Ansari, J.
1. Unsuccessful writ petitioner is the appellant before us. The instant appeal is directed against an order of learned Trial Judge dated April 11, 1983 passed in C.O. No. 5845(W) of 1977 whereby the writ petition was dismissed upholding the order passed by the learned President of the Tribunal which held that the impugned constructions had been erected not only in an unauthorized manner but by infringing several building rules.
2. In coming to the aforesaid conclusion learned Trial Judge in the judgment under appeal has noticed that the appellant/petitioner had erected 6th and 7th stories without obtaining any sanction from the Corporation of Calcutta. He had also violated several other provisions of the Building Rules contained in the Schedule XVI of the Calcutta Municipal Act, 1951 in respect of the other portions of the said premises. In the proceeding initiated under Section 414 of the Act, 1951 an order of demolition of the 6th and 7th stories had been ordered. It was held by the learned Trial Judge that the two Assessors did not dissent from the finding of fact made by the learned President of the Tribunal that petitioner had constructed the 6th and 7th stories of the building without obtaining any sanction and also with the other finding that in the 6th and 7th stories also petitioner infringed Rules 30 and 33 of Schedule XVI to the Act, 1951. The question whether the discretion under Section 414(3) of the Act ought to be exercised in the petitioner's (appellant before us) was not a pure question of fact. It was held that the decision of the President on the said question namely whether the unauthorized constructions ought to be demolished was, therefore, final. It was further held that the exercise of discretion was neither arbitrary nor without consideration of the relevant facts. The learned Trial Judge, therefore, held that the Court cannot substitute its own views and hold that the said unauthorized constructions ought to be allowed to stand.
3. The aforesaid conclusions have been assailed in the appeal before us.
4. Mr. A. Pas Adhikari appearing along with Mr. Arindam Banerjee, Ms. Sanghamitra Banerjee, Mr. Sanjay Kr. Nag and Mr. K. Guha on behalf of the appellant contended that the learned Trial Judge ought to have held that the decision of the learned President of the Tribunal suffers from errors of law and fact. Mr. Adhikari stressed that under Rule 15, the issue pending for determination before the Tribunal involved question of fact and, therefore, the learned President by misconceiving the scope, purport and effect of the said provision namely Rule 15 made his own findings binding and illegally rendered ineffective the findings and orders recorded by the two Assessors. Mr. Adhikari contended that the learned President of the Tribunal himself having held that the issue for determination was a pure question of law, the learned Trial Judge held that it was a mixed question of law and facts and questions of law. According to Mr. Adhikari the question for determination before the Buildings Tribunal was pure question of fact and therefore the order of two Assessors ought to have prevailed over the order of the President of the Tribunal. Elaborating the said contention it was submitted by Mr. Adhikari that the exercise of discretion under Section 414(3) of the Calcutta Municipal Act, 1951 is primarily dependent upon the determination of a number of questions of fact which involves enquiry on facts. Lastly, it was contended that in the facts and circumstances of the case the discretion in favour of the petitioner in allowing the structures to stand should have been exercised instead of demolition as that would involve danger to the life and safety of the structure which stood the test of time since 30 years. That apart was contended that the provisions permit the relaxation and, therefore, the discretion ought to have been exercised in granting relaxation instead of ordering demolition.
5. Mr. P. K. Ray, learned senior Counsel assisted by Mr. Jugal Ch. Porel and Mr. N. C. Behani, learned Counsel on behalf of the respondent Corporation contended that for the reasons stated in the order under appeal, no case has been made out for interfering with the same. It was urged that the appellant has the sanction to construct upto 5 stories. The construction made by the appellant namely 6th and 7th stories is wholly unauthorized. The only question of fact involved in the case is whether the 6th and 7th stories is with or without sanction as required by law. Since there is no dispute on that aspect the only question before the authorities below for determination was whether the discretion vested in them to allow the unauthorized construction to remain or to be demolished was a question of law. It was further submitted by Mr. Ray that special circumstances must exist and must be spelt out by the party seeking aid of discretion to be exercised in his favour and it is not for the authorities to find out the special circumstances to retain the unauthorized structure. The construction of the 6th and 7th stories was wholly unauthorized and no special circumstances exist warranting the retention of such an unauthorized construction. Petitioner, it was submitted, was issued notice to stop any further continuance of work by issue of a notice being Annexure "A" to the affidavit-in-opposition. Petitioner gave an undertaking that he shall not proceed further with the work without approval (Annexure "B") and by his letter being Annexure "C" dated August 28, 1976 appellant/petitioner requested the Corporation to withdraw the guards from the said premises on the solemn declaration given by him that no further construction shall be made at the premises in question without consent. Having thus given such undertakings appellant violated the same whereupon notice under Section 414 of the Act, 1951 was issued. In the said notice being Annexure "D" various violations of the sanctioned plan and the unauthorized works have been enumerated. City architect opined that to the extent of vertical extension there is no scope for retention of any portion of unauthorized construction. The Deputy Commissioner in his order condoned the violations made within the sanctioned plan and the Tribunal did not interfere with the relaxation of the rules allowed by the Deputy Commissioner. Mr. Ray stressed that the Tribunal considered the only question before it whether the order of the Deputy Commissioner regarding demolition of unauthorized constructions namely 6th and 7th stories should be allowed to stand or not.
6. In reply Mr. Adhikari submitted that the 6th and 7th stories are only a small portion of the building which therefore do not justify demolition. It was further stressed that such relaxations where the violation is of a minimal nature have been granted by the Corporation and, therefore, there was no reason for treating the petitioner differently.
7. There is no dispute that in terms of Rule 15 of the Calcutta Municipal Corporation Building Tribunal (Conduct of Business) Rules, 1965 the decision on all questions of law and procedure shall rest solely with the President of the Tribunal [Sub-rule (3)]. Whereas in terms of Sub-rule (4) the decision on any question of fact shall be in accordance with the opinion of the President unless both the Assessors agree in holding an opinion different from that of the President in which case the decision shall be in accordance with the opinion of the Assessors.
8. We are not inclined to agree with the contention of Mr. Adhikari that the question before the Tribunal involved any disputed question of fact. The only question before the Tribunal was whether the discretion exercised by virtue of the power vested under Section 414(3) of the Act, 1951 ought to have been exercised in petitioner's favour, same was a mixed question of law and fact. We are in agreement with the view of the learned Trial Judge that the question whether on the facts proved and admitted an order of demolition ought to be made is a mixed question of law and fact. We also agree with the reasoning and conclusion of the learned Trial Judge that under Sub-rules (3) and (5) of Rule 15 of the said Rules the decision of the President on that question was final. It was not disputed before the learned Trial Judge as it has also not been disputed before us that the construction of the 6th and 7th stories was wholly unauthorized. The two assessors did not dissent from the finding of fact made by the learned President of the Tribunal that 6th and 7th stories have been constructed without sanction also the assessors did not differ from the other finding of fact that the same unauthorized constructions in the 6th and 7th stories infringed Rules 30 and 33. Having ascertained the fact which was not in dispute the only question remained for consideration was whether the discretion was exercised in accordance with law or whether the same suffered from arbitrariness. It was, therefore, purely a question of law or mixed question of fact and law. Mixed question of law and fact, as noticed in the judgment under appeal, involves firstly, the ascertainment of facts and then the determination of rights of the parties on the application of the appropriate principles of law to the facts ascertained.
9. Reliance by Mr. Adhikari upon the judgment in Rajatha Enterprises v. S.K. Sharma and Ors., is misplaced. That was a case where the challenge was to the permission granted to the builder to construct the building. The contention was that public interest is prejudiced in so far as the building has been constructed contrary to the provisions of the Corporation Act and the Planning Act. Thus, as contended by Mr. Ray, the judgment has no application to the case on hand as in that case there was a sanctioned plan. The following observations in the judgment upon which much reliance has been placed by Mr. Adhikari would themselves distinguish that case to the one on hand:
"20.............0n the facts found, there is neither justice nor enquiry in authorizing the demolition. The total site area being 15517 sq. ft. as found by the High Court, and the permissible FAR in relation to the site area being 38792 sq. ft., as against the determined area of 45974 odd sq. ft., the excess FAR is only 7182 sq. ft, When an area of 4500 sq. ft. occupied by the school is excluded from the excess area of 7182 sq. ft. by reason of the school having vested in the Government upon the completion of the building, the actual excess area in the possession and enjoyment of the appellant is only 2682 sq. ft. The permissible limit of compounding being 5 per cent of the permissible FAR, which works out to 1940 sq. ft. the actual area of deviation outside the permissible compounding limit seems to be not larger than 742 sq. ft. In the circumstances, in the light of what the Commissioner says about the practice of the Corporation in regard to the commencement certificate and in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent the High Court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever of dishonesty or fraud or negligence on the part of the builder.........."
10. The Full Bench judgment of this Court in Purusottam Lalji and Ors. v. Ratan Lal Agarwalla and Ors., is not an authority for the proposition that in case of violation of minimal nature the building rules perforce must be relaxed or that the unauthorized construction should be allowed to stand. The two questions which were framed for consideration by Their Lordships in the Full Bench were as under :
1. Under Section 414 of the Calcutta Municipal Act, 1951, has the Commissioner an absolute discretion to make or not to make, and order of demolition?
2. Can he refuse to make an order, where, there is an unauthorized construction infringing rules which are either-
(a) not relaxable under the provisions of the said Act, or
(b) are relaxable but have not been relaxed?
11. Section 414 was construed and also the effect of Section 388 of the Act which deals with the power to relax provisions of the Chapter XXII and Schedule XVI. The said two questions were answered by the Special Bench in the following terms:
"........................So far as the first question mentioned hereinbefore we are of the opinion that the Commissioner has a discretion either to make an order for demolition or not to make an order for demolition. That discretion is in no way circumscribed, but the Commissioner cannot act arbitrarily or on extraneous grounds. If on consideration of the facts of a particular case the Commissioner is satisfied that there is sufficient cause why an order for demolition should not be made even in case of unauthorized construction infringing rules which are either not relaxable under the Act or which have not been relaxed, he has the discretion not to make an order for demolition. That disposes of the second question raised in the referring judgment".
12. Next, reliance was placed by Mr. Adhikari, learned Counsel for the appellant on the judgment of the Division Bench in Harbans Singh Saluja v. Building Tribunal, Corporation of Calcutta and Ors., . There can be no dispute with the proposition settled in that case. However, the question involved in the present matter is different from that under consideration before the Division Bench as can be seen from paragraph 7 of that judgment which for sake of convenience is extracted hereunder :
"7. It is clear from Sub-rule (4) that the concurrent opinion of the Assessors on a question of fact will prevail over that of the President of the Tribunal. In the instant case, the question whether the disputed shed had been in existence for 12 years or more is pre-eminently a question of fact and, both the Assessors having been of the opinion that it had been in existence for over 12 years, such opinion will prevail over that of the President".
13. Adverting now to the judgments relied upon by Mr. P. K. Ray, learned Senior Counsel on behalf of the respondent Corporation. Learned Single Judge of this Court in Kalidas Dutta v. Corporation of Calcutta and Ors., reported in 87 CWN 592, considered a similar question with regard to demolition of unauthorized construction. The contention that because the construction is allowed to stand for some years should not be directed to be demolished was repelled in the following terms:
"...............Therefore, if the entire construction started on an illegal basis, then in that case, the contention of Mr. Banerjee that justice, enquiry, fairness and good conscience demand the non-demolition appears to me to be rather inconsistent. Which is illegal, cannot be valid, which is blatant violation or a provision of law cannot be fair and cannot meet the elements of conscience to attract the discretionary power of Court on equitable principles. Therefore, I cannot reconcile with the arguments of Mr. Banerjee that because the construction is allowed to stand for some years, it will not be proper or right for the Court to ask for its demolition".
14. As regards the power of Writ Court to interfere with orders of the Tribunal it was held as follows :
"12. Mr. Ghosh, learned Advocate for the Corporation of Calcutta refers to me Section 414 of the Calcutta Municipal Act. The said section provides for demolition of work unlawfully commenced. When the order of demolition was passed, after applying the mind properly, it cannot be said that this order is bad. In the order there is no defect, no irregularity, no illegality. On a consideration of all the materials the order has been passed by the Deputy Commissioner. The Tribunal has affirmed the order also after going into the merits and it will be rather unusual on the part of this Court to interfere or set aside the order which has come to a conclusion on assessment of all the facts and on a careful consideration of all the elements and facts involved in this case".
15. We are in respectful agreement with the views as above, extracted supra. Judged in the light of the above learned Trial Judge rightly held that Writ Court cannot substitute its own views when the exercise of discretion by the statutory authority was neither arbitrary nor without consideration of relevant facts.
16. Mr. P. K. Ray, learned Senior Counsel, relied upon Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors., , to contend as held therein that there is no discrimination for perpetration of wrongful act. Extension of equality in Article 14 for breach of law would aid impetus to perpetrate further illegalities. Article 14 is therefore not available in the said context.
17. We find substantial force in the submission of Mr. P. K. Ray, learned Senior Counsel for the Corporation that in spite of notice to stop construction petitioner went ahead with the unauthorized constructions despite the undertakings given by him. There is, therefore, neither equity nor special circumstances exists in favour of the petitioner to warrant interference with the order passed by the Tribunal as upheld by the learned Trial Judge for the reasons stated in the judgment under appeal.
18. In the circumstances we find no merit in the appeal, same is accordingly dismissed, however, without any order as to costs.
Soumitra Pal, J.
19. I agree.
Later:
20. Learned Counsel for the appellant prays for stay of the operation of the above judgment. Keeping in view that the order of the demolition has been upheld.
21. We stay the operation of the judgment for a period of 30 (thirty) days from date.
M.H.S. Ansari and Soumitra Pal, JJ.