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Dundoo Balakrishnamurthy and ors. Vs. Municipal Commissioner, Secunderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit. Petn. No. 547 of 1960
Judge
Reported inAIR1961AP489
ActsConstitution of India - Articles 19(1), 19(5) and 226; Hyderabad Municipal Corporations Act, 1955 - Sections 397, 399 and 679; Hyderabad Municipal Corporation (Amendment) Act, 1956
AppellantDundoo Balakrishnamurthy and ors.
RespondentMunicipal Commissioner, Secunderabad and anr.
Appellant AdvocateV. Venkateswarlu and ;M. Kesava Rao, Advs.
Respondent AdvocateG.S. Krishna Prabhu, Adv. and ;3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
.....corporations act, 1955 (2 of 1956) - petitioner intended to erect building applied for approval to municipal commissioner - construction sanctioned with some conditions - prayed issue of writ against order passed by commissioner - grant of sanction is an administrative function - writ cannot be issued against order - right under article 19 (1) (f) is not absolute right - subject to restrictions under article 19 (5) - populous and expanding urban area need proper regulation in respect of construction - conditions imposed by commissioner is in public interest - central government considered reasons given for revision of order - held, revision under section 679 confirming commissioner decision is valid. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj]..........in sanction no. 61/e of 1959-60 dated 13-5-1959 issued by the commissioner of the secunderabad municipal corporation.2. the petitioner and three of his brothers intending to erect a building in a site, in which, it is stated they have leasehold rights, on the rastrapati road, secunderabad, gave notice to the commissioner, municipal corporation, secunderabad under section 428 of the hyderabad municipal corporations act, 1956. the necessary site plan, the drawings of the proposed structure and other connected papers were duly submitted to the commissioner along with an application for sanction to build within the meaning of section 433. by an order dated 13-5-1959 the commissioner of the corporation in exercise of his power under section 438 gave sanction for the construction of the.....
Judgment:
ORDER

Seshachalapati, J.

1. This is a petition under Article 228 of the Constitution of India praying for the issue of a writ of certiorari to quash conditions Nos. (ii), (iii) and (vi) in Sanction No. 61/E of 1959-60 dated 13-5-1959 issued by the Commissioner of the Secunderabad Municipal Corporation.

2. The petitioner and three of his brothers intending to erect a building in a site, in which, it is stated they have leasehold rights, on the Rastrapati Road, Secunderabad, gave notice to the Commissioner, Municipal Corporation, Secunderabad under Section 428 of the Hyderabad Municipal Corporations Act, 1956. The necessary site plan, the drawings of the proposed structure and other connected papers were duly submitted to the Commissioner along with an application for sanction to build within the meaning of Section 433. By an order dated 13-5-1959 the Commissioner of the Corporation in exercise of his power under Section 438 gave sanction for the construction of the building subject to certain conditions. The conditions are as follows:

'1. Drainage proposals should be submitted separately with levels through a licensed plumber.

2. No projection is allowed on the foot-path, The balcony and the sun breakers should be provided within the lease holdings only, without any projection on Government land and 6' wide pial should be provided instead of 3' wide pial as corrected in the plan so that the balcony and the sun-breakers could be up to the extent of the pial and the lease holdings only.

3. Open space of 3' wide should be left throughout the length of the neighbour's wall as corrected in the plan as the eaves of the neighbours are projecting into this plot and the ventilators are existing in the neighbours' wall.

4. Smoke fuel should be provided in kitchen.

5. Whole construction should be carried over under the supervision of a qualified engineer.

6. Corner should be rounded off as corrected in the plan.'

3. Of these six conditions the petitioners take exception to conditions (ii), (iii) and (vi) only. The specific relief asked for in this petition is the issuance of a writ of certiorari. It is settled law that a writ of certiorari would only be issued for removing and quashing a judicial or a quasi-judicial order. A writ of certiorari will not normally be issued to quash what is really an administrative act. As I conceive the scope and the nature of the powers of the Commissioner of the Corporation under the relevant provisions of the Hyderabad Municipal Corporation ACT of 1956 I cannot persuade myself to hold that the order impugned is anything more than a mere administrative order.

Under the Hyderabad Municipal Corporation Act, a person intending to build within the municipal limits has to give notice of his intention to build and apply to the Commissioner for permission. A large discretion is vested in the Commissioner to grant sanction and circumscribe the sanctions with conditions. There powers are, in my view, wholly administrative and a writ of Certiorari to quash such proceedings is in my judgment prima facie incompetent and untenable.

It has however been held by the Supreme Court in Chiranjitlal v. Union of India, : [1950]1SCR869 that a writ need not be dismissed because the prayer is inappropriate and it is open to the Court to frame the writ to meet the exigencies of the case. It is unnecessary to refer to other decisions, but I may observe that this Court has also taken the same view in Venkateswara Rao v. State of Andhra Pradesh, 1958-1 Andh, WR 480: (AIR 1958 Andh Pra 458). This principle was reaffirmed by the Supreme Court in Mohd. Sheriff v. The Mysore State Transport Authority, Bangalore, : [1960]2SCR146 .

4. But in this case there need not be any question of trying to give an alternative relief, because the petitioners have filed a revision to the Government under Section 679 of the Hyderabad Municipal Corporations Act which revision petition, however, was dismissed by the Government in and by their G. O. Ms. 2120 L. A. dated 1-9-1959. It is not disputed by the learned Government Pleader that the order passed by the Government in revision is a judicial or a quasi-judicial order to which a writ of Certiorari could well be issued especially as the order of the Commissioner must be deemed to have been merged in the order of the Government.

Mr. Venkateswarlu, the learned counsel for the petitioners, has sought to contend that in the order dated 13-5-1959 the Commissioner has not given reasons for the objections. I am unable to appreciate this contention. The Commissioner has suggested specific alterations in the plan submitted to him and no statutory rule or regulation has been brought to my notice which makes it obligatory On the part of the Commissioner not merely to suggest alterations but to give reasons therefor. I do not think there is any substance in this Contention.

5. Nor am I persuaded that there is any basis at all for the contention that the objections contained in paragraphs 2, 3 and 6 of the Commissioner's order impinge upon the Petitioners' rights to property guaranteed under Article 19(1)(f) of the Constitution. The right to acquire, hold and dispose of property enshrined in Article 19(1)(f) is not by any means an absolute right. It is subject to restrictions which the State may impose in exercise of its police power in the interests of the public generally, under Clause (5) of Article 19.

By design, the Hyderabad Municipal Corporations Act vests in the Commissioner the power to sanction or withhold sanction or give sanction subject to conditions with respect to buildings in the municipal area. It would be indulging in a futile platitude to say that in populous and expanding urban areas there should be proper and legitimate regulation with respect to buildings both on hygienic and aesthetic, grounds. Any regulation in that behalf is a regulation in the interests of the Public and therefore would constitute a reasonable restriction on the right of property enshrined in Article 19(1)(f) of the Constitution.

Mr. Venkateswarlu the learned Counsel, states that in imposing the conditions Nos. (ii) (iii) and (vi) the Commissioner has exceeded bounds of reasonable restriction. When once it is established that the power confided to the Commissioner of the Corporation is a reasonable restriction within the meaning of Article 19(5), the specific orders passed by the Commissioner cannot be meticulously examined by this court for determining whether such objections are called for in a particular case or not. It has always been held by Courts of highest authority that when a statutory authority is under a statute given a power of discretion, the actual exercise of that discretion cannot be interfered with by Courts, except, of course, where the action of the statutory authority is outside the scope of its jurisdiction, or its action is vitiated by mala fides.

In the well-known case of Westminster Corporation v. London and North Western Rly., 1905 AC 426 the House of Lords had to consider the question of the power of a Corporation under the Public Health Act of 1891. They held that the sanitary authority under Section 44 of the Act is vested with a discretion as to the mode of acting under that Section and its action cannot be interfered with unless it is proved that it had not acted bona fide or reasonably. Lord Halsbury, L.C. observed thus :

'I quite agree that if the power to make one kind of building was fraudulently used for the purpose of making another kind of building, the power given by the Legislature for one purpose could not be used for another; but I have endeavoured to show that the Legislature did contemplate making subterranean works under the roadway and also access to them. Under these circumstances, I think it is a question of degree, and if there be the express provision, as I think there is, to make a tunnel under the street for the purpose of these conveniences, then, I think the question of its extent or cost is a matter with which neither a Court of law or equity has any concern, since the tiling contemplated by the statute has been done, and done in the way which the statute contemplated it might be done.'

Lord Macnaghten observed:

'There can be no question as to the law applicable to the case. It is well settled that a public body invested with statutory powers such as those confered upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.'

Under the Hyderabad Corporations Act, the Commissioner has jurisdiction to suggest alterations in the manner he had done. There has been no suggestion here of any mala fides. Nothing has been urged that the Commissioner was actuated by any special malice against the petitioners or that he has not acted in good faith. The expression 'bona fides' has been defined by Sir Francis Janne in Goldberg and Son Ltd. v. Liverpool Corporation, 82 LT 362. He observed that the test is: Has the Public body acted bona fide in the sense that it has fairly endeavoured to ascertain what is necessary or expedient, clearing its mind from personal motives and personal feeling. It is only fair that I should mention that the learned counsel Mr. Venkateswarlu did not suggest that the Commissioner had any personal animus or his action was vitiated by malice.

6. All that has been suggested, and suggested with considerable vigour, by the learned Counsel is that in imposing the limitations contained in conditions (ii) (iii) and (vi) of the order, the Commissioner misapprehended the scope of his powers.

7. Section 397 Of the Hyderabad Municipal Corporation Act enacts in a rather peremptory form an embargo on projections of buildings upon streets. But this embargo is subject, however, to the provisions of Section 399. The relevant provisions of these two sections may be extracted:

'397 (1) Except as Provided in Section 399 no person shall erect, set up, add to or place against or in front of any premises any structure or fixture which will........

(a) overhang, just or project into, or in any way the safe or convenient passage of the public along, any street, or

(b) just or project into or encroach upon any drain or open channel in any street, so as in any way to interfere with the use of proper working of such drain or channel or to impede the inspection or cleansing thereof.'

'399 (1). The Commissioner may give in writing permission on such terms as he shall in each case think fit to the owner or occupier of any building abutting on any street --

(a) to erect an arcade over such street or any portion thereof, or

(b) to Put up a verandah, balcony, arch, connecting passage, sun-shade, weather-frame, canopy, awning, or other such structure or thing projecting from any storey over or across any street of portion thereof;

provided that no permission shall be given by the Commissioner for the erection of an arcade in any public street in which the construction of arcades has not been generally sanctioned by the Corporation.

(2) The provisions of Sections 397 and 398 shall not be deemed to apply to any acrade, verandah, balcony, arch connecting passage, sun-shade, weather-frame, canopy awning or other structure or thing erected or put up under and in accordance with the terms of a permission granted under this section.'

The learned counsel suggests that Section 399 therefore gives the Commissioner full authority and discretion except in the case of arcades to grant permission to put up a verandah, balcony, arch, connecting passage, sun-shade, weather-frame, canopy etc.

8. In the plans submitted by the petitioners there is no doubt that certain projections are shown into the municipal road. There has been some Controversy as to whether the projections are in the nature of balconies or chajjas. The learned counsel for the Corporation, Mr. Krishna Prabhu, stated at the bar that the discussion as to the precise character of the projection has been rendered unnecessary, because what is shown in the Plan is a projection and sun-breakers.

The suggested projection in the plan together with the sun-breakers are according to the petitioners 3 feet, while according to the Counsel for the Corporation it is about 6 feet. That they do constitute projections is the common cause. The power given to the Commissioner under Section 399 is an enabling power; it is a discretionary power. The question in this case is whether the discretion has been wrongfully withheld.

Mr. Venkateswarlu states that there are no bye-laws or regulations to govern the exercise of this discretion and that if the contention pressed by the learned Counsel for the Corporation should prevail, the Commissioner would be invested with a wholly untrammelled jurisdiction which he may exercise in some cases and refuse to exercise in others. It is also pointed out that the Commissioner had given permission for similar projections in the case of houses belonging to Premji Lalji and A. K. Lakshmipathi.

In the counter-affidavit filed by the Commissioner the circumstances in which the permission had been granted in the two cases have been explained and it is stated that the permission was granted under the old Act and that no permission for projection has been granted as a matter of policy after the passing of the Hyderabad Municipal Corporation Act, 1956.

9. In these circumstances I do not consider it to be my duty to decide whether there are good grounds or not for the Commissioner to insist on the second objection. All that I am concerned with is to decide whether the Commissioner has or has not jurisdiction to impose the limitation and I cannot say he has no such jurisdiction. Whether in a particular case he is right in doing so or not is a different matter altogether,

10. The third objection is with respect to the requirement of providing 3 feet throughout the length of the neighbours' wall a shown in the corrected plan. Mr. Venkateswarlu, the learned Counsel, says that any dispute between the neighbours and the applicants with respect to easementary rights is not the concern of the Corporation and the insistence of leaving 3' is wholly uncalled for. As I said the Propriety of the imposition of such a condition is not for me to determine. All I am concerned with is whether in imposing that condition the Commissioner acted without jurisdiction and I am persuaded that he did not,

11. The last contention objected to is the rounding off of the corners as suggested in the plan. Mr. Venkateswarlu states that by this condition some valuable area is lost to the petitioners, but on the contrary it is urged by the learned Counsel for the Corporation that this is in the interests of the pedestrians, as abutting the premises there is a street, and if the cars should suddenly take a turn, there might be possibilities of collision and such possibilities are considerably diminished if the ends are rounded off. As to the propriety of this objection I propose to make no comment. It is a matter entirely for the commissioner.

12. It is then contended that the Government who are exercising the revisional powers under section 679 have not exercised their power in accordance with law. It is strenuously urged before me that being a judicial order it was incumbent on the Government to have given reasons in the order. The order of the Government simply states that it sees no reasons to interfere. It is urged that this is a very bald and laconic order which shows that the Government had not even applied their mind to the submission made in the revision Petition.

13. The learned Government Pleader in answer to the above criticism has urged two contentions:

(1) that interference under Section 679 is wholly discretionary and therefore the Government need not give reasons, and

(2) that in the case of an affirming order no reasons need be mentioned.

I do not agree with the first contention of the Government Pleader. It is true that the power vested under Section 679 of the Hyderabad Municipal Corporations Act is a dscretionary power. But a discretionary power when once invoked must be exercised. It is stated by Lord Blackburn in the well-known case of Jullius v. Lord Bishop of Oxford, (1880) 5 AC 214 as follows:

'If the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it, for the benefit of those who have that right, when required on their behalf'.

Later he observed:-

'The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is far more easy to show that there is a right where private interests are concerned than where the alleged right is in the public only, and in fact, in every case, cited, and in every case that I know of (where the words conferring a power are enabling only, and yet it has been held that the power must be exercised) it has been on the application of those whose private rights required the exercise of the power.'

The fact that the power is discretionary does not mean that when once it is invoked the Government can refuse to exercise it. They must exercise it.

14. The second contention of the Government Pleader in answer to the objection raised by Mr. Venkateswarlu that the order of the Government does not give reasons must in my judgment prevail. It has been held in Venkateswararao v. State of Madras, ILR (1956) Andhra 325 that in the case of an affirming order it is not necessary to give elaborate reasons. It seems to me that there is considerable force in the contention of the Government Pleader that when the Government say that they see no reason to interfere, it means that they have considered the reasons given in the order sought to be revised and that they consider no case had been made out for interference. I do not think therefore that this is a case in which I should quash the order merely on the ground that reasons are not given, because it is an affirming order.

15. To sum up, I hold (1) that this is a case in which no certiorari can lie against the order of the Commissioner as such, because it is not a judicial or quasi-judicial order. (2) Nor can the Commissioner be directed to forbear from enforcing the objections by a writ of Mandamus, because the order impugned is one made in exercise of the discretion vested in him under statute and in such a case a writ of Mandamus would not lie, and (3) that the order of the Government refusing to interfere in revision though a judicial order, does not warrant interference merely because the reasons are not given.

16. It seems to me that the Petitioners are labouring under the sense of grievance and there is nothing to preclude them from approaching the Commissioner for the re-consideration of the objections and trying to make a counter suggestion as regards the plan. I have no doubt when such proposals are made for re-consideration, they will receive the sympathetic and earnest consideration of the Commissioner of the Corporation. It need hardly be said that the Commissioner of the Corporation is a public servant, who under the statute is vested with wide powers and his anxiety, I have no doubt, will always be to help rather than hinder legitimate attempts in constructing buildings. The writ petition therefore fails and is dismissed with costs of respondents 1 and 2. Advocate's fee Rs. 100/-.


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