Document Fragment View

Matching Fragments

(3) When the appellant company applied for beautification by barren land belonging to the Defence Department in front of the proposed hotel, the Army Authorities started raising objection with regard to the building constructed by the appellants company.

(4) Learned Counsel for the appellants submitted that the short question that arises for consideration is whether or not the absence of permission as contemplated by Sec. 628 of the KMC Act will invalidate the building plan duly sanctioned by the KMC and consequently whether the construction already completed in accordance with the plan will require demolition under Sec. 629 of the KMC Act. Secs. 628 and 629 of the KMC Act provide as follows:-

Learned Counsel submitted that the irreconcilable conflict between Sections 628 and 629 of the KMC Act on the one hand and the whole scheme of 1903 Act on the other is that in total disregard of the 1903 Act the State Legislation seeks to empower the Army Officer to approve or disapprove the building plan in the absence of a declaration with sketch map under Sec. 3 of the 1903 Act.

(20) Learned Counsel urged that 'Hastings' area referred to in Sec. 628 of the KMC Act has not been defined in the Act nor is the geographical extent of the Hastings known either to the KMC or the Army Authority. Reference was made to a letter dated 25 September, 2010 written by the Director General, Building, KMC to the Army Authority wherein it was stated, inter alia, that '.............in the absence of boundary of Hastings in the Calcutta Municipal Corporation record, this department is not able to supply you the documents asked for, for ascertaining the jurisdiction of the General Officer Commanding, Bengal Area, for the clearance required.' Learned Counsel also referred to a letter dated 21 March, 2011 written by the same officer of KMC to the Army Authority wherein it was stated, inter alia, that 'although the KMC Act, 1980 came into force in the year 1984, even after expiry of almost two and half decades, no official communication has been received from your end restraining sanction of building plan within the Hastings area'.

He submitted that an erroneous grant by a statutory functionary does not bind the statutory authority. Art. 14 of the Constitution does not confer a negative right. In this connection he relied on a decision of a learned Single Judge of this Court in the case of P. H. Avari-vs.- The State of West Bengal, 62 CWN 278. In that case it was observed that there can be no estoppel against Government on a point of law and construction of a statute. This court referred to the House of Lords decision in Howell-vs.-Falmouth Boat Construction Ltd. (1951 A.C. 837), wherein it was observed that the fact that the Government Officer in his dealings with the subject may have assumed an authority, which he did not possess, to grant licence, does not debar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no infraction of it. This court held that the Government and the administration cannot like an ordinary person be estopped by the acts of its numerous agents and officers which perform their work in a limited sphere and with their specially limited authority imposed by their very nature of work. (33) In conclusion, Learned Addl. Advocate General submitted that Secs. 628 and 629 of the KMC Act are valid legislative provisions and do not suffer from lack of legislative competence. KMC is not only legally authorized but is legally obliged to enforce the said provisions. In the face of such statutory provisions the grant of sanction of the building plan was erroneous and the developers or the owners of the property in question are not entitled to hold on to the benefits of an illegal grant. They must also realize that as responsible citizens they have the obligation to follow the norms fixed by the statute. The object of ensuring public order being foremost in the mind of the legislature in legislating Sec. 628 is clearly decipherable from a plain reading of the provision. By a legislative fiction, even the actual sanctioning of a building plan in violation of Sec. 628 shall not be construed or deemed to be a grant of permission to erect a masonry building. Hence, in the eye of law the sanction granted in the present case shall not be deemed to be a grant.

(42) In the present case, Learned Senior Counsel for the appellants has contended that the protection of the places and works of defence and ensuring the safety and security thereof is within the exclusive jurisdiction of the Central Government under entries 1-4 of List I of 7th Schedule to the Constitution of India. In particular he has referred to entry 4 of List I which relates to 'Naval, Military and Air Force Works'.

According to him, Secs. 628 and 629 of the KMC Act seek to encroach upon a Central legislative field and are accordingly void. In the absence of a notification and declaration under Sec. 3 of the 1903 Act, Secs. 628 and 629 of the KMC Act cannot impose any restriction on the user of a property in the Hastings area, is the submission of Learned Senior Counsel. The question of obtaining permission of the Central Government under Sec. 628 of the KMC Act can only arise after the area in question in notified under Sec. 3 of the 1903 Act, submitted Mr. Mukherjee. Secs. 628 and 629 in total disregard of the scheme of the 1903 Act seeks to empower the Army Officer to approve or disapprove the building plan in the absence of a declaration with Sketch Map under Sec. 3 of the 1903 Act, which is impermissible. (43) Per contra, the Learned Addl. Advocate General submitted that there is absolutely no conflict or repugnancy between the Central Act and the State Act in question. The KMC Act including Secs. 628 and 629 thereof relates to a subject in List II of the 7th Schedule which is exclusively within the legislative domain of the State. He submitted that there is no encroachment by the KMC Act or any provision thereof on the Central legislative field and hence it is not necessary to resort to the doctrine of pith and substance to uphold the vires of Secs. 628 and 629 of the KMC Act.