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Dr. K. Ramachandran Represented by His Natural Father, Power-of-attorney-holder K. Sampath Chetty Vs. Commissioner, Hyderabad Municipal Corporation, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1256 of 1957
Judge
Reported inAIR1960AP603
ActsHyderabad Municipal Corporation Act, 1956 - Sections 450 and 636; Constitution of India - Articles 19(1) 226
AppellantDr. K. Ramachandran Represented by His Natural Father, Power-of-attorney-holder K. Sampath Chetty
RespondentCommissioner, Hyderabad Municipal Corporation, Hyderabad
Appellant AdvocateN. Ramamohanrao and ;A.V. Rangam, Advs.
Respondent AdvocateTej Rajkapur, Adv.
Excerpt:
.....contained in the notice given or information furnished under section 428 or 433 or in the further information, if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission. but it is well settled that when a statute empowers or enables a person or authority to do a particular thing and specifies the conditions or circumstances subject to or under which that person or authority is to act, then the person or authority can only act subject to the conditions or when the circumstances exist......for the commissioner that this provision is not exhaustive. but it is well settled that when a statute empowers or enables a person or authority to do a particular thing and specifies the conditions or circumstances subject to or under which that person or authority is to act, then the person or authority can only act subject to the conditions or when the circumstances exist. but it is argued that a reterence to section 636 of the act shows that it is open to the commissioner to revoke a permission for any reason whatsoever. that section, so far as it is material for the present purposes, is as follows: '636 (1). if any work or thing requiring the written permission of the commissioner, under any provision of this act or any rule, regulation or bye-law is done by any person without.....
Judgment:
ORDER

Bhimasankaram, J.

1. The petitioner is represented by his natural father, power of attorney-holder. The father obtained permission on behalf of the petitioner from the Commissioner, Municipal Corporation, Hyderabad for the construction of a building in a site owned by the petitioner. He submitted a plan of the proposed building and that place was approved on 13-6-1957. But on 19-10-1957, the Commissioner served the petitioner with an order in these terms:

'With reference to the above subject, this is to inform you that your neighbour on the Eastern side is aggrieved with the construction of W. C. Bath, attached to his wall, his existing window and ventilators and thereby affecting the privacy, air and light into the room. In addition to this a proposal for acquisition of land at the Southern side of your building for widening the existing lane is under consideration. Hence you are hereby intimated that the permission granted to you is further modified and permission for W. C. and bath at Eastern side along with the compound wall on Southern side are, hereby cancelled.'

Now the only provision that enables the Commissioner to cancel permission previously granted is Section 450 of the Hyderabad Municipal Corporation Act No. II of 1956 and it is in these terms:

'450. If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 or in the further information, if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission.'

It is not pretended that the order dated 19-10-1957 is within the purview of this section. But it is argued for the Commissioner that this provision is not exhaustive. But it is well settled that when a statute empowers or enables a person or authority to do a particular thing and specifies the conditions or circumstances subject to or under which that person or authority is to act, then the person or authority can only act subject to the conditions or when the circumstances exist. But it is argued that a reterence to Section 636 of the Act shows that it is open to the Commissioner to revoke a permission for any reason whatsoever. That section, so far as it is material for the present purposes, is as follows:

'636 (1). If any work or thing requiring the written permission of the Commissioner, under any provision of this Act or any rule, regulation or bye-law is done by any person without obtaining such written permission or if such written permission is subsequently suspended or revoked for any reason by the Commissioner, .....'

The argument is that because [he words used in this section ace 'or revoked for any reason by the Commissioner' and there is no provision elsewhere in the Act than Section 450 which enables the Commissioner to revoke any permission he has already granted, it follows that he can revoke the permission granted for the erection of a building or a work for any reason whatsoever. It is impossible for me to understand how the words used in Section 636 could react upon the construction of Section 450; but such is the argument. Section 636 is not a section dealing with the conferment of any power to revoke. It is concerned with what is to be done when something happens despite the revocation.

2. Another argument urged with great vehemence in support of the contention that Section 450 is not exhaustive -- but which to my mind is equally devoid of substance -- is based upon Section 9 of the Hyderabad General Clauses Act. The section reads thus:

'9. Where, by any Act, any power is conferred, that power may be exercised from time to time as occasion requires.'

It is obvious that this section does not deal with the conditions imposed by any statute upon the exercise of the power conferred. It only says that a power that is conferred is not exhausted by being exercised once but may be exercised as often as occasion re-quires. I cannot see how the fact that a person can exercise a power several times enables him to exercise it for any reason whosoever.

3. It is next urged for the Commissioner that what he has done is merely an executive act and that it is not open to this court to issue any directions with regard to it. It is pointed out that the order passed by him is not a quasi-judicial order liable to be quashed by a writ of certiorari. But the powers of this court under Article 226 of the Constitution are wide enough to enable this court to prevent any person acting or purporting to act under the authority of a statute from exceeding the bounds set by that statute. That the act that he does is of an executive or administrative character is irrelevant. I conceive it to be the duty of this Court to see that statutory authorities respect the terms of the statute by which they are created and under which they function.

4. The next argument urged on behalf of the Commissioner is that no legal right of the petitioner has been violated. I am simply unable to understand this argument. A person is entitled to acquire property by raising a building upon his own land and no restrictions not statutorily authorised can be imposed upon the exercise of that right. Any person attempting to interfere with that right under colour of statutory authority must be prevented from doing so.

5. The last point urged for the Commissioner is that the petitioner has proceeded with the construction of the building despite his order and has by such conduct disabled himself from claiming the discretionary relief under Article 226. Although it would have been very proper for the petitioner not to have disobeyed the order of the Commissioner. I cannot say that his conduct is such as to disentitle him to the remedy which he seeks from this court. By doing what he did, he exposed himself to the risk of incurring the penalty provided by the Statute in this court found that the Commissioner had acted within his authority. But as I have now found that the Commissioner was overstepping the statutory limits, in issuing the order that he did, the petitioner cannot be blamed for disobeying an order that the Commissioner could not legally make. In any case, I cannot see how that can be a reason why the order that I propose to issue should not issue.

6. I direct the Commissioner of the Hyderabad Municipal Corporation to refrain from interlering with the petitioner's right to erect in building in accordance with the plan approved by him on 13-6-1957. There will be an order in the nature of a mandamus served upon the Commissioner to this effect. The Commissioner will pay the costs of this writ petition. Pleader's fee Rs. 200/-.


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