Skip to content


Ram Awatar Agarwal and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. Nos. 540 and 588 of 1982
Judge
Reported inAIR1975Cal314,86CWN793
ActsCalcutta Municipal Act, 1951 - Sections 392, 414, 414(1), 414A, 414(3) and 414(5); ;Calcutta Municipal Rules - Rules 59 and 60; ;Constitution of India - Articles 19(1), 21, 226 and 300A
AppellantRam Awatar Agarwal and ors.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateS.D. Banerjee, ;D. Ghosh, ;Samarjit Gupta, ;Tapan Kumar Sen and ;O.P. Jhunjhunwala, Advs.
Respondent AdvocateP.K. Ghosh, ;Barin Banerjee, Advs. and ;Ajit Basu, Chief Law Officer, Corporation of Calcutta
DispositionAppeals dismissed
Cases ReferredRam Awtar Agarwal v. The Corporation of Calcutta
Excerpt:
- m.m. dutt, j. 1. the appellants, who are 60 in number, have preferred this appeal against the judgment of b. c. ray j., whereby the learned judge dismissed the application of the appellants under article 226 of the constitution of india. 2. the appellants claim to be the tenants of premises no. 174, chittaranjan avenue, calcutta, which is a 14-storeyed building. it is not disputed that the said building has been constructed without any sanctioned plan and in violation of the provisions of the calcutta municipalact, 1951, hereinafter referred to as the act, and the building rules under schedule xvi of the act. admittedly, one smt. durga devi is the owner of the land, comprising the said building being premises no. 174, chittaranjan avenue, calcutta. the respondent no. 11, shyam lal.....
Judgment:

M.M. Dutt, J.

1. The appellants, who are 60 in number, have preferred this appeal against the judgment of B. C. Ray J., whereby the learned Judge dismissed the application of the appellants under Article 226 of the Constitution of India.

2. The appellants claim to be the tenants of premises No. 174, Chittaranjan Avenue, Calcutta, which is a 14-storeyed building. It is not disputed that the said building has been constructed without any sanctioned plan and in violation of the provisions of the Calcutta MunicipalAct, 1951, hereinafter referred to as the Act, and the Building Rules under Schedule XVI of the Act. Admittedly, one Smt. Durga Devi is the owner of the land, comprising the said building being premises No. 174, Chittaranjan Avenue, Calcutta. The respondent No. 11, Shyam Lal Agarwalla, took a lease of the land with an old structure standing thereon from the said Durga Devi on June 27, 1977. The old structure was demolished by him and, thereafter, he started the construction of the disputed building without any sanctioned plan and in violation of the Building Rules. The Corporation of Calcutta tried to prevent the respondent No. 11 from constructing the building in defiance of the provisions of the Act and the Rules, but all attempts of the Corporation were defeated by the respondent No. 11, and he succeeded in erecting the building up to the sixth storey. After the service of statutory notice, the Corporation started a demolition case and on May 15, 1978 the Deputy Commissioner of the Corporation passed an order of demolition.

3. The said order of demolition dated May 15, 1978 could not stop the respondent No. 11, Shyam Lal Agarwalla, from going on with further constructions up to the 10th storey and, thereafter up to the 14th storey. On April 21, 1981, the Corporation passed two other demolition orders, one for the 7th to 10th storeys and the other for the 11th to 14h stories. In the meantime, Shyam Lal Agarwalla filed an appeal before the Building Tribunal of the Corporation against the first demolition order of the building up to the sixth storey. He also filed two other appeals before the Building Tribunal against the other two demolition orders, both dated April 21, 1981, relating to 7th to 10th stories and 11th to 14th stories.

4. On May 29, 1981, the Building Tribunal dismissed the appeal of the respondent No. 11, Shyam Lal Agarwalla, filed against the first demolition order dated May 15, 1978 in respect of the demolition of the building up to the sixth storey. Against the said order of the Building Tribunal, the respondent No. 11 filed a writ application in this Court, which was dismissed by P. C. Barooah J. on June 22, 1981. Being aggrieved by the said order of Barooah J., the respondent No. 11 preferred an appeal before a Division Bench of this Court under Clause 15 of the Letters Patent. The said appeal and an application for interim order were both dismissed by the Appeal Court by itsjudgment dated November 16, 1981. A special leave petition was filed by the respondent No. 11 before the Supreme Court against the judgment of the Appeal Court dismissing the appeal. On February 15, 1982, the Supreme Court summarily dismissed the special leave petition.

5. While the appeal preferred by the respondent No. 11 against the judgment of Barooah J. was pending before the Appeal Court, he filed an application before the Building Tribunal of the Corporation praying for stay of the said two demolition orders dated April 21, 1981. At the hearing of the said application for stay, it was contended on behalf of the respondent No. 11 that the issue whether the construction of the building up to the 6th storey was illegal or not was sub judice before the High Court and as such, the Tribunal should not act on the assumption that such construction up to the 6th storey was unlawful and unauthorised. Considering the said contention, the President of the Building Tribunal by his order dated September 9, 1981 directed that the execution of the said two demolition orders would remain stayed until further orders.

6. After the special leave petition filed by the respondent No. 11 against the judgment of the Appeal Court dismissing the appeal and the application for interim order relating to the demolition of the building up to the 6th storey was dismissed by the Supreme Court on February 15, 1982, the Corporation started demolition of the 14th storey of the building on February 17, 1982. On that day, the appellants moved an oral application before B. C. Ray, J. at his residence at about 8-30 P.M. and obtained an ex parte interim order of injunction restraining the Corporation from demolishing the building. Thereafter, they filed the writ petition. Ultimately, B. C. Ray, J., by his judgment dated March 1, 1982 dismissed the writ petition of the appellants. Hence this appeal.

7. In the appeals, an application for interim order of stay of the demolition of the building has been filed. We granted an ad interim order and fixed the hearing of the application. The respondents Nos. 1 to 5 including the Corporation of Calcutta have filed an affidavit-in-opposition to the application for interim order of stav. As the disposal of the application would virtually mean disposal of the appeal, by our order dated March 10, 1982 we directed the hearing of the appeal and the application together.

8. On behalf of the appellants, the appeal has been argued by Mr. Sankar Das Banerjee, assisted by Mr. Dipankar Ghosh who, to a great extent, supplemented the argument of Mr. Banerjee. The first point that has been urged on behalf of the appellants is that in view of the order dated September 9, 1981 of the Building Tribunal staying the two demolition orders of the building, one from 7th to 10th stories and the other from 11th to 14th stories, the Corporation has no authority to start demolition of the building as it did on February 17, 1982. It if not disputed that the Building Tribunal has not yet vacated the said order for stay. It is, accordingly, contended by the appellants that so long as the stay order remains operative, the action of the Corporation to commence demolition of the building will be highly illegal. In this regard, we may notice the contention of the Corporation as made in paragraph 23 of the affidavit-in-opposition affirmed by Sri Debabrata Banerjee, the City Architect and Special Officer, Multi-storeyed Building Cell of the Corporation. It has been stated in paragraph 23, inter alia, that the last two demolition cases need not have been initiated at all if the first demolition order dated May 15, 1978 had not been under challenge in the appeal. The subsequent demolition proceedings were initiated by way of abundant caution, so that even if the first demolition order was set aside on any ground, further unauthorized constructions made upon the existing unauthorized structure could not evade the process of law. Any construction made upon an existing unauthorized structure is ipso facto unauthorized, and the additional construction having merged in the original unauthorized construction is liable to be demolished along with the same. No further demolition proceeding was necessary for such additional unauthorized construction. It was only as a precautionary measure against any possible violation of the first demolition order that the subsequent demolition proceedings had to be initiated.

9. Mr. Dipankar Ghosh, learned counsel for the appellants has criticised the contention of the Corporation as made in paragraph 23 of the affidavit-in-opposition. It is submitted by him that the merger of one unauthorized construction with another is unknown in legal jurisprudence. The learned counsel submits that the Corporation cannot rely on the first demolition order dated May 15, 1978 relating to the 1st to 6th stories of the building. It is urged that in respect ofevery addition to an unauthorized construction, a fresh demolition order is necessary under Section 414(1)(c) of the Act. It is submitted that there is no substance in the contention made on behalf of the Corporation that no further demolition proceeding was necessary for the demolition of additional unauthorized constructions. The Corporation, counsel submits, is bound to obey the order of the Building Tribunal and cannot ignore such order on the ground that no further demolition order was necessary.

10. The further contention of the appellants in this regard is that the Corporation is a statutory body, and when the statute lays down the manner in which the powers conferred on it by the statute should be exercised, such powers can be exercised in tbat manner only and in no other manner. Reliance has been placed on behalf of the appellants on the decision of the Privy Council in Nazir Ahamed v. King Emperor, AIR 1936 PC 253 (2). It has been observed by the Privy Council that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all, and that, other methods of performance are necessarily forbidden. The said principle has been followed by the Supreme Court in Ballabhdas Agarwala v. J. C. Chakravarty, : 1960CriLJ752 and Gujarat Electricity Board v. Girdharilal Motilal, : [1969]1SCR589 . Relying on the above principle of law, it has been contended on behalf of the appellants that the attitude of the Corporation that in view of the first order of demolition of 1st to 6th stories of the building, there is no need for any demolition order or to start any demolition proceeding in respect of the 7th to 14th stories which are the subsequent unauthorizesd constructions upon the original six storeyed unauthorized construction, is illegal. It is submitted that the Corporation could only proceed for the demolition of the 7th to 14th stories in accordance with the provision of Section 414 of the Act and not in any other manner according to its sweet will.

11. The learned counsel for the appellants has also placed much reliance on the doctrine of election. It is contended that when the Corporation has taken recourse to Section 414 of the Act, it cannot give the go-by to the procedure for demolition as laid down in that section and proceed to demolish 7th to 14th stories without an order of demolition, even assuming that such an order of demolition was not necessary. In other words, the Corporation having a choice either to proceed under Section 414 or not, and it having elected to proceed under Section 414 cannot now proceed without conforming to the procedure laid down in the section.

12. We may now consider the above contentions of the appellants. We have already noted the circumstances under which the Building Tribunal granted stay of Ihe two subsequent demolition orders dated April 21, 1981. As the first demolition order was the subject matter of an appeal pending before this Court which was filed by the respondent No. 11, the Building Tribunal, in our opinion, had some justification for granting stay of the subsequent demolition orders dated April 21, 1981. After this Court dismissed the appeal and the Supreme Court dismissed the special leave petition regarding the first demolition order dated May 15, 1973, it became final. In other words, the construction of the building up to the 6th storey was adjudicated as unauthorized construction having been made in violation of the provisions of the Act and the Building Rules. It is not disputed before us that all further constructions upon the 6th storey are also unauthorized. As soon as it is conceded, the Corporation become entitled to execute the two orders of demolition regarding the 7th to 14th storeys of the building. It is true that the Building Tribunal has stayed the subsequent orders for demolition but, as the first demolition order was pending before this Court in appeal, the Building Tribunal had no other alterative than to stay the subsequent demolition orders. But, after the first demolition order was confirmed up to the Supreme Court, the Building Tribunal will have no option in the matter, but has to vacate the stay order. The Corporation has not, however, moved the Building Tribunal for vacating the stay order but, in our opinion, that is not necessary. The illegality and unauthorizedness of the construction of the building up to the 6th storey having been confirmed up to the Supreme Court, the proceedings before the Building Tribunal in respect of the subsequent unauthorized constructions up to the 14th storey and the stav order have become infructuous and inoperative. The Building Tribunal will not have any jurisdiction to continue the stay order which will defeat the order of this Court as affirmed by the Supreme Court.

13. The contention in this regard may be examined from another point of view.The appeals before the Building Tribunal were filed and the stay order was obtained by the respondent No. 11, Shyam Lal Agarwalla. The stay order bound the Corporation vis-a-vis the respondent No. 11 and not the appellants. The appellants, therefore, in our opinion, have no locus standi to rely on the stay order of the Building Tribunal in respect of the subsequent unauthorized constructions up to the 14th storey.

14. The criticism of the appellants of the statements of the respondents Nos. 1 to 5 in paragraph 23 of the amdavit-in-opposition is not justified. It may be that the contention of the respondents Nos. 1 to 5 that the subsequent unauthorized constructions up to the 14th storey have merged in the original unauthorised construction up to the 6th storey is not technically correct, but what has been meant by the said contention is quite clear. The subsequent unauthorized constructions being the extension of the original unauthorized construction, all these constructions up to the 14th storey should be treated as one single unauthorized construction. Indeed, the structure comprising 7th to 14th stories cannot have any separate and independent existence without the first six stories of the building. Obviously, that is what the respondents Nos. 1 to 5 went to mean by the said contention in paragraph 23.

15. There is also justification for the Corporation to take steps against the subsequent unauthorized constructions. The contention of the appellants is that the Corporation cannot give the go-by to the subsequent demolition orders which are now pending before the Building Tribunal in appeals and proceed to demolish the building from the 14th storey relying on the first demolition order which has become final and conclusive. It is submitted that the Corporation being a statutory body has to proceed in accordance with the provisions of the Act and cannot adopt a procedure of its own de hors the provisions of the Act and the Rules. It is true, as observed by the Privy Council in Nazir Ahamad's ease (AIR 1936 PC 253 (2)) (supra), where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all, and that other methods of performance are necessarily forbidden, We are, however, unable to accept the contention of the appellants that the Corporation has been proceeding in violation of the provisions of the Act and the Building Rules. It has been earlier observed thatfor the subsequent unauthorised constructions no demolition order was required to be made by the Corporation. The Corporation, in our opinion, can proceed on the basis of the first demolition order of the building up to the 6th storey, regard being had to the fact that the subsequent constructions are, admittedly, unauthorized having no separate and independent existence apart from the original unauthorized construction up to the 6th storey. In other words, the unauthorized constructions from 7th to 14th stories come within the purview of the first demolition order.

16. It is difficult to accept the contention of the appellants that for each addition to an unauthorized construction a fresh demolition proceeding has to be started. Section 414 does not lay down any such procedure. To accept the contention of the appellants would be to defeat the purpose for which Section 414 has been enacted by the legislature. To say that at each step of addition to an unauthorized construction a demolition proceeding has to started would, undoubtedly, lead to a manifest absurdity completely defeating the power of the Corporation and the provisions of the Act. We, therefore, hold that the Corporation need not wait for the disposal of the appeals before the Building Tribunal filed by the respondent No. 11 or to take any step for the vacation of the stay order, for the said appeals and stay order, have become infructuous and inoperative. The demolition of the building on the strength of the first order would be quite consistent with the provisions of the Act and the Building Rules. The contention of the appellants in this regard is unsound and is rejected.

17. The doctrine of election which has been relied on by the appellants has no manner of application to the instant case. The said doctrine will apply when two courses are open to a party and, if he choses to follow one in preference to the other, he cannot give up that course and take resort to the other. The Corporation being a statutory body, it has to act in accordance with the provisions of the statute by which it has come into existence. The provision of Section 414 does not lay down two different procedures for demolition of an unauthorized structure and does not empower the Corporation to pursue either of such procedures at its choice. There is, therefore, no question of putting the Corporation to election. As has been already observed by us, theCorporation has proceeded in accordance with the provision of Section 414 by taking steps to demolish the unauthorized structure by virtue of the first demolition order. We do not think that the legislature can put a statutory body to election for the purpose of adopting one or other procedure for an action at its volition or choice. Such a provision would be discriminatory and ultra vires Article 14 of the Constitution. There is, therefore, no substance in the contention made on behalf of the appellants on the basis of the doctrine of election. The decision of the Privy Council in Benjamin Scarf v. Alfred George Jardine, (1882) 7 AC 345, on which reliance has also been placed on behalf of the appellants has no manner of application to the Corporation, a statutory body.

18. The next point that has been urged on behalf of the appellants is based on the ground of non-service of the copies of the two subsequent demolition orders in regard to the 7th to 14th stories of the building. Before we consider the contention of the appellants on the point, we may refer to the provisions of Sections 414 and 414A of the Act which are set out below :

'414. If the Commissioner is satisfied-

(i) that the erection of any building-

(a) has been commenced without obtaining any permission required to be obtained by or under this Act, or

(b) is being carried on or has been completed otherwise than in accordance with the particulars on which such permission was based, or

(c) is being carried on or has been completed in breach of any provision contained in this Act or in any rules or bylaws made thereunder or, of any direction or requisition lawfully given or made under this Act or under such rules or by-laws, or

(ii) that any alteration of, or addition to, any building or any other work made or done for any purpose in, to or upon any building, has been commenced or is being carried on or has been completed in breach of, or otherwise than in accordance with, any sanction granted under Section 387 in contravention of the provisions of Section 396 or 397, or

(iii) that any alteration required by any notice issued under Rule 22 of Schedule XVI has not been duly made, he may, without prejudice to any action that may be taken under any other provision of this Act, by written notice require the person responsible to demolish.such erection, alteration, addition or other work or to make the alteration, as the case may be, or to show cause why such erection, alteration, addition or other work should not be demolished or the alteration should not be made.

(2) The Commissioner may issue a notice under Sub-section (1) notwithstanding the fact that the valuation of such building has been made under Chap. XI for the assessment of the consolidated rate,

(3) If the person responsible fails -

(a) to demolish such erection, alteration, addition or other work, or to make the alteration, or

(b) to show sufficient cause to the satisfaction of the Commissioner as the case may be, why such erection, alteration, addition or other work, should not be demolished, or the alteration should not be made, the Commissioner may order -

(i) the demolition of the erection, alteration, addition or other work, or

(ii) the making of the alteration :

Provided that a copy of the order shall be served upon the owner and the occupier thereof and no such action shall be taken until the expiry of thirty days from the date of the service of the said order.

Provided further that where the structure does not contravene any of the provisions of this Act or the Rules made thereunder, the Commissioner may, without prejudice to any other action that may be taken against the person concerned under the provisions of this Act or the Rules made thereunder, allow him to submit proper plan under the rules referred to in Schedule XVI and sanction such plan.

(4) Notwithstanding anything contained in the foregoing Sub-sections, no action shall be taken under this section in respect of any erection, alteration, addition or other work executed more than twelve years before the issue of the notice under Sub-section (1) :

Provided that the onus of proving that the work was done more than twelve years previously shall lie on the person responsible. (5) In this section the expression 'person responsible' include the owner, the occupier and any other person who executes the erection, alteration, addition or other work or who is liable to mark any alteration , required by any notice issued onder Rule 22 of Schedule XVI, 414A. Appeal. Any person dissatisfied with the order of the Commissioner made under Sub-section (3) of Section 414 may, within thirty days from the date of the order, present an appeal accompanied by a copy of the order of the Tribunal constituted under Section 391B, and the President of the Tribunal may stay the execution of the order for such period or periods as he may think fit or until the disposal of the appeal.'

19. Section 414 provides for demolition or alteration of building work unlawfully commenced, carried on or completed. Under Sub-section (1) of Section 414, the Commissioner may by written notice require the person responsible to demolish such erection, alteration, addition or other work or to make the alteration, as the case may be, or to show cause why such erection, alteration, addition or other work should not be demolished or the alteration should not be made. The written notice will be served only on the person responsible. Under Sub-section (3) of Section 414, if the person responsible fails to demolish or to show sufficient cause to the satisfaction of the Commissioner, as the case may be, the Commissioner may order the demolition of the erection, alteration, addition or other work, or the making of the alteration. Under the first proviso to Sub-section (3), a copy of the order shall be served upon the owner and the occupier thereof and no such action shall be taken until the expiry of thirty days from the date of the service of the said order. Sub-section (5) of Section 414 defines the expression 'person responsible'. It is clear from the provisions of Sub-section (1) and Sub-section (5) of Section 414 that the expression 'person responsible' only relates to a person who has something to do with the work of construction or who is in a position to comply with an order of demolition. The said expression does not include an occupier of the unauthorized construction, who has nothing to do with the work of such construction or any addition to it. There is no dispute with regard to the above interpretation of the expression 'person responsible'. It is not also disputed by the appellants that none of them is a 'person responsible' within the meaning of Sub-section (5) of Section 414 of the Act. The appellants claim to be the occupiers of the building in respect of all the floors excepting the first floor of which the Rajasthan Bank of India Ltd. is the occupier. It is also claimed by theappellants that they became tenants of the said building under the respondent No. 11, Shyam Lal Agarwalla, before the first demolition order dated May 15, 1978 was passed by. the Corporation.

20. The contention of the appellants is that, as the copies of the subsequent demolition orders dated April 21, 1981 were not served on them, the action of the Corporation in proceeding to demolish the building is highly illegal and ultra vires the first proviso to Sub-section (3) of Section 414 of the Act. It is submitted on behalf of the appellants that if the copies of the demolition orders had been served on them they could have preferred appeals before the Building Tribunal under Section 414A of the Act. In this connection, it may be stated that although Section 414A provides that the appeal shall be filed within thirty days from the date of the order, in our opinion, on a proper construction of the provision, it should be held that the period of thirty days should be computed not from the date of the order, but from the date of the service of the copy of the order on the owner and the occupier or from the date of knowledge of the. order of such owner and occupier. It is, accordingly, submitted on behalf of the appellants that so long as the copies of the subsequent demolition orders are not served on the appellants, the Corporation has no jurisdiction to demolish the further unauthorized construction. It is urged that non-service of the copies of the demolition orders on the appellants has deprived them of their valuable right of appeal under Section 414A of the Act. On this ground, the appellants submit that the Corporation should be prohibited from demolishing the building without complying with the provision of the first proviso to Section 414 (3). The further submission of the appellants is that the copy of the demolition order has to be served not only on the occupier who was in occupation of the unauthorized structure at the time when the demolition order was passed, but also on the occupier who came later. In other words, the contention of the appellants is that whenever any occupier comes to occupy the unauthorized structure before the execution of the demolition order, the execution should be deferred until the expiry of thirty days from the date of service of the order on such occupier.

21. On the other hand, Mr. Pradip Ghosh, learned counsel appearing on behalf of the respondents Nos. 1 to 5 including the Corporation of Calcutta submits that on a proper construction of tha first proviso to Sub-section (3) of Section 414 of the Act, it should be held that only that occupier who was there in the unauthorized structure at the time of passing of the demolition order is required to be served with a copy of the demolition order, and not any other occupier who comes to occupy the unauthorised structure subsequent to the demolition order. It is the case of the respondents Nos. 1 to 5 that at the time the first demolition order dated May 15, 1978 was passed, there was only one recorded occupier viz., Shyam Lal Agarwalla, the respondent No. 11, and a copy of the demolition order having been served on him, the corporation is not required to serve copies of the subsequent demolition orders on any other occupier or the appellants who were not in occupation of the unauthorized structure before May 15, 1978. So it is contended on behalf of the said respondents that there is no substance in the contention of the appellants about non-service on them of the copies of the demolition orders.

22. One significant fact that may be noticed is that although the appellants claim to be in occupation of the building from before the first demolition order, they have not made any grievance on account of non-service of the copies of the first demolition order. They are only insisting on the service of copies of the two subsequent demolition orders, both dated April 21, 1981. The first proviso to Sub-section (3) of Section 414 clearly provides for the service of a copy of the demolition order on the owner and the occupier and enjoins that no action shall be taken tin-til the expiry of thirty days from the date of service of the order. The object of the service of the copy of the demolition order on the owner and the occupier is clear, namely, it will enable them to vacate the structure within thirty days of such service.

23. It is contended on behalf of the appellants that if the copies of the demolition orders had been served on them, they could have preferred appeals under Section 414A of the Act. Section 414A confers a right of appeal to the Building Tribunal on 'any person' dissatisfied with the order of demolition. The expression 'any person', in our opinion, will undoubtedly Include an occupier. But, where an occupier is not a person responsible, he cannot, in our opinion, challenge the demolition order on the ground that the construction is authorized and lawful as having been made in accordance with the provisions of the Act and the Building Rules. In such an appeal preferred by an occupier, other than a person responsible, the only relief that can be sought for by him is some more time so as to enable him to vacate the unauthorized structure. In any event, in the instant case, the building being admittedly unauthorized, there will be no scope for any argument in any appeal by an occupier in justification of the construction of the building.

24. It is, however, submitted by the learned counsel for the appellants that as the appellants and other occupiers are persons affected, they should be given an opportunity of being heard before the enforcement of any demolition order. Section 414 including the first proviso to Sub-section (3) does not provide for such hearing being given to the occupiers. As tias been observed before, an occupier not being a person responsible will have no say against an order of demolition of the unauthorized structure, except that he can ask for some time to vacate. The first proviso to Sub-section (3) of Section 414 in effect gives a period of thirty days to the owner and the occupier. We are unable to accept the contention of the learned counsel for the appellants that no demolition order can be enforced without giving the occupier an opportunity of being heard. The decision of the Supreme Court in the Municipal Corporation of Greater Bombay v. Lala Pancham, : [1965]1SCR542 , on which much reliance has been placed by the learned counsel for the appellants, is not applicable to the facts and circumstances of the case for the reasons stated hereafter. Sub-section (4) of Section 354R of the Bombay Municipal Corporation Act, 1888 confers powers on the Commissioner of the Bombay Municipal Corporation to order demolition of a building in the area declared to be a clearance area. Clause (b) of Sub-section (4) of Section 354RA provides for the service of notice, inter alia, on every person whose name appears in the assessment book as primarily liable for payment of property tax and for specifying the time within and the manner in which the objection to the demolition order can be made to the Commissioner Clause (b) of Sub-section (4) of Section 354A of the said Act does nol provide for service of any notice on the tenants of the building ordered to be demolished. On a construction of the said provision and the provision of Section 354R and in view of the fact that the tenants of the building are persons who would be affected by the order of demolition, it has been held by the Supreme Court that they are also entitled to lodge an objection to the order of demolition. Further, under the provision of Section 354R, a demolition order can be passed on the ground that the residential buildings are by reason of dis-repair not fit for human habitation or for like reason dangerous or injurious to the health of the inhabitants of the area, and that the conditions in the area can be effectually remedied by the demolition of all the buildings in the area without making an improvement scheme. When, therefore, a demolition order is passed under the said Act the tenants of the building which has been ordered to be demolished, may have many things to say against the order of demolition. It may be shown by them that the building is not unfit for human habitation or dangerous or injurious to the health of the inhabitants. In the instant case, however, the occupiers of the building in question will have nothing to say against the demolition order. If the legislature had intended to give such an opportunity to the occupier, it would have specifically provided for the same as it has provided in the case of a person responsible in Section 414 (1) of the Act. So, in our opinion, there is no question of giving the occupiers an opportunity of being heard before the enforcement of the demolition order.

25. In support of his contention that the occupiers should be given an opportunity of being heard by the Corporation before the enforcement of any demolition order, the learned counsel for the appellants has drawn our attention to clause (b) of Section 557 (1) and Section 560 (1) of the Act. Section 557 confers on the Commissioner power of entry into any premises, inter alia, for the purpose of execution of any work which is authorized by the Act. Clause (b) of Section 557 (1) provides, inter alia, that no dwelling-house and no public building or hut which is used as dwelling place shall be entered without giving the occupier at least twenty-four hours' previous written notice of the intention to make such entry. Section 560 (1) provides, inter alia, that when any requisition or order is made under the Act or any rule or by-law made thereunder, a reasonable period shall be prescribed In such notice for carrying such requisition order into effect, and a reasonable period shall be prescribed in such noticewithin which any written objection thereto shall be received by the municipal authority or the municipal officer issuing the notice. We fail to understand how these provisions are of any help to the contention of the appellants. So far as Section 557 (1) (b) is concerned, it is conceded by Mr. Pradip Ghosh, learned counsel for the respondents Nos. 1 to 5 that at the time of actual demolition of the building in enforcement of the demolition order, written notice mentioned in Section 557 (1) (b) will be given to the occupiers of the dwelling units in the building. He, however, submits and, in our opinion, rightly that Section 560 (1) has no bearing on the question with which we are concerned. Section 560 (1), as has been noticed already, only provides for specifying a reasonable period in the notice for carrying the requisition or order into effect and for the submission of any written objection thereto. Section 560 (1) has, therefore, no manner of application to the facts and circumstances of the instant case. The contention of the appellants, in our opinion, is not tenable and is rejected.

26. In this connection, we may consider one contention of Mr. Pradip Ghosh, learned counsel for the respondents Nos. 1 to 5. He has drawn our attention to Rules 59 and 60 of the Building Rules contained in Schedule XVI of the Act. Rule 59 directs the owner of a building to send to the Commissioner a written notice by registered post with acknowledgment due informing him of the fact of the completion of the building: Rule 60 provides for the issuance of an occupancy certificate by the Commissioner after he is satisfied on inspection that the building has been constructed strictly in accordance with the Building Rules. Section 392 of the Act enjoins that no new building or part of a new building shall be occupied for use until and unless a certificate of completion of the building or that part of it has been submitted to the Corporation. The cumulative effect of Section 392 and Rules 59 and 60 is that so long as the Coporation does not issue an occupancy certificate no one can occupy the building. It is not disputed that no notice was served by the respondent No. 11 on the Commissioner as to the completion of the building and, consequently no occupancy certificate has been issued. Indeed, there is no question of the granting of any occupancy certificate inasmuch as the building has been constructed in defiance of the provisions of the Act and the Building Rules. The learned counsel for the. respondents Nos. 1 to 5 submits that the occupation of the appellants and others is wholly illegal and unlawful. It is contended by him that the first proviso to Section 414 (3) does not contemplate the service of the copy of the order of demolition on an occupier whose occupation is unlawful. We are unable to accept this contention. The demolition order can be passed only in respect of an unauthorized construction. When a construction is unauthorized, no occupancy certificate can be issued by the Corporation under Rule 60 of the Building Rules, and, accordingly, the occupation of any occupier of such construction will be unlawful. In spite of that, the first proviso to Section 414 (3) provides for the service of a copy of the demolition order on such occupier. As has been already observed, the first proviso, in effect, gives the owner and the occupier of an unauthorized construction in respect of which a demolition order has been passed, a period of thirty days to vacate the same, so that the demolition order can be enforced. It is, therefore, not correct to say that because the occupation of the appellants of the building in question is unlawful the Corporation is not required to serve the copies of the demolition orders on them under the first proviso to Section 414 (3) of the Act.

27. Now the question is whether each and every occupier who is found in the unauthorized building at the time of the execution of the demolition order should be served with a copy of the order. It is the contention of the appellants that if any person comes to occupy the building before the execution of the demolition order, he has to be served with a copy of the order and, consequently execution will have to be deferred for thirty days as provided in the first proviso to Section 414 (3) of the Act. This will mean that each time the Corporation proceeds to demolish the building, if a new occupier is found in the building, he will have to be served with a copy of the demolition order and the work has to be postponed for thirty days from the date of service in our opinion, if such a contention is accepted, it will defeat the purpose and object of Section 414 of the Act In that case, a demolition order may be defeated by the owner of an unauthorized building or structure or a person responsible by inducting a new occupier each time the Corporation starts the demolition work. A statutory provision should not be interpreted in such a way as will render it nugatory. The interpretation should be such as to make the provision workable and consistent with the object and purpose for which it has been enacted. On a proper construction of the first proviso to Section 414 (3) of the Act, it seems that after a demolition order is passed and copies of which are served on the owner and the occupiers for the time being of the unauthorized structure, the Corporation will be entitled to start the demolition work after the expiry of thirty days from the date of service of the demolition order. No further copy of the demolition order is required to be served by the Corporation on any person who comes to occupy the unauthorized structure during the period of thirty days or during the period between the service of the copies of the demolition order and the execution of the work of demolition. Any other interpretation of the first proviso to Section 414 (3) of the Act will frustrate the very object and purpose of the provision and the intention of the legislature. In other words, the provision of Section 414 will be rendered inoperative.

28. The appellants have not admittedly been served with the copies of the demolition orders as mentioned in the first proviso to Section 414 (3) of the Act. It is urged on behalf of the appellants that, in any event, the Corporation cannot execute the demolition work without serving copies of such orders. We have already discussed the object of service of the copies of the demolition order on the occupiers. It has been held by us that the only object is to give the occupiers a reasonable time to vacate the unauthorized structure. The appellants are quite aware of the demolition orders that have been passed and they have got plenty of time to vacate the building. For the last few months litigations are going on and from time to time, there had been publications in almost all the newspapers of the city of the reports of Court proceedings. Indeed, on Feb. 17, 1982 the Corporation actually started the demolition of the 14th Storey. The appellant No. 60 also filed a suit in the City Civil Court, Calcutta on Feb. 5, 1982. From the above facts, it can be reasonably inferred that all the other occupiers of the building ere quite aware of the demolition orders and they have got plenty of opportunity to vacate the building. The question, therefore, is whether the Corporation shall be directed to serve on the appellants and other occupiers of the build-Ing copies of the demolition orders. Inthe circumstances stated above and, in view of the object of the service of the copy of the demolition order, we do not think the Corporation should be directed to serve copies of the demolition orders on the occupiers of the building.

29. It is contended on behalf of the appellants that the occupiers have a statutory right to claim service of the copies of the demolition orders on them. Technically it may be correct, but the grant of any relief under Article 226 of the Constitution is discretionary with this Court. Nobody can claim as a matter of right that he must be given the relief he asks for in his writ petition. After considering the facts and circumstances of the case, we are of the view that it is a fit case where we should not exercise our discretion by issuing a mandate on the Corporation to serve copies of the demolition orders on the occupiers of the building.

30. The next contention of the appellants is that even assuming that the Act does not make any provision for giving an opportunity of being heard, rules of natural justice require such opportunity being given to the occupiers of an unauthorized structure before the structure can be demolished. To substantiate this contention, the learned counsel for the appellants has placed reliance on some English and Indian decisions which will be stated presently.

31. In Cooper v. Wandsworth Board of Works, (1863) 143 ER 414, the 76th Section of the Metropolis Local Management Act empowers the District Board to alter or demolish a house, where the builder has neglected to give a notice of his intention to build seven days before proceeding to lay or dig the foundation. Willes, J. observes 'I apprehend that a tribunal which by law invested with power to affect the property of one of Her Majesty's subjects is bound to give such subject an opportunity of being heard before it proceeds : and that that rule is of universal application, and founded upon the plainest principles of natural justice.' The principles of law laid down in Cooper's case has been followed in Hopkins v. Smethwick, (1890) 24 QBD 712, where it has been observed by Wills, J. that in condemning a man to have his house pulled down, a judicial act is as much implied as in fining him 51; and as the local board is the only tribunal that can make such an order, its act must be a judicial act, and the party to be affected should have anotice given him; and there is no notice, unless notice is given at time when, and place at which the party may appear and show cause. The decisions in Cooper's case and in Hopkings's case have been followed in Urban Housing Co. v. Oxford City Council, (1940) 1 Ch. 70. It has also been followed by the House of Lords in Ridge v. Baldwin, 1964 A- C. 40, where Lord Morris observes that it is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charge or allegation or suggestion which he has to meet.

32. So far as the Indian decisions are concerned, the learned counsel for the appellants has placed reliance on a decision of Panckridge, J., in Indumati Debi Chaudhuri v. Bengal Court of Wards, ILR (1938) 1 Cal 476 : (AIR 1938 Cal 385), where the learned Judge, relying on the principles of law in Cooper's case and Hopkings's case and some other English decisions, held that the making of en order of the Court of Wards declaring that a female was incompetent to manage her property without notice to or hearing the person affected by it constituted a breach of the principles of natural justice and was in excess of any jurisdiction conferred by the Court of Wards Act and the Court of Wards should be restrained from acting under it Now we may refer to two Supreme Court decisions which have been relied on by the appellants. In State Bank of India v. Rajendra Kumar Singh, : 1969CriLJ659 , the High Court directed disposal of property consisting of some currency notes under Section 517 read with Section 520 of the Criminal Procedure Code without giving notice to the person to whom the property was directed to be delivered by the Sessions Court. In setting aside the order of the High Court, the Supreme Court observed that though the statute, i.e., the Criminal Procedure Code was silent and did not expressly require issue of any notice, there was in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order of return of the seized property. In State of J & K v. Haji Vali Mohammed, : [1973]1SCR801 , the Municipality sought to demolish the structures in question which were in a dilapidated and dangerous condition by serving 24 hours' notice Under Section 129 of the Jammu & Kashmir Municipal Act. It was held by the Supreme Court that the time of 24 hours which was given for demolition was so short that it could not be held to be a reasonable time. The respondents had to make some arrangements for removal of either their goods or business equipment or whatever articles that were lying in these buildings or structures. So it was held that notices issued to the respondents did not comply with the provision of Section 238 of the said Act, and that the time which was granted was so short that it was not possible for the respondents either to comply with the notices or to take any effective steps in the matter of filing any appeal or revision to the appropriate authorities.

33. We have already discussed above that Section 414 (1) provides for the service of a notice on the person responsible so as to give him an opportunity of being heard. The appellants who are the occupiers of the building in question and having no connection whatsoever with the construction of the building have no right to claim an opportunity of being heard against the demolition orders of the building. They are only entitled to a reasonable time to shift to some other place. The first proviso to Sub-section (3) of Section 414 has prescribed a period of thirty days from the date of service of a copy of the order of demolition on the occupier during which the demolition order will not be enforced. This really means that the occupier is given a reasonable time to vacate the unauthorized structure. In the circumstances, we do not think that the above decisions cited on behalf of the appellants are of any help to them. In the Supreme Court decision in Haji Vali Mohammed's case (supra) 24 hours' notice for the purpose of vacating the buildings or structures in question were considered to be not reasonable. But, in the instant case, the first proviso to Sub-section (3) of Section 414 of the Act gives to the occupier a period of thirty days to leave the building or structure in question. So we do not find any merit in the contention of the appellants based on the ground that the principles of natural justice have been violated.

34. In challenging the action of the Corporation in the enforcement of the demolition order, the appellants also take resort to fundamental rights guaranteed by the Constitution. It is submitted on behalf of the appellants that the action of the Corporation interferes withtheir fundamental rights to carry on business under Article 19(1)(g) and their personal liberty under Article 21 of the Constitution of India. They also rely on right to property under Article 300A of the Constitution. It is contended that as some of the appellants have been carrying on their business in the building in question, the Corporation cannot interfere with their fundamental right to carry on business save in accordance with law. Further, it is submitted that the demolition of the building will deprive them of their personal liberty and, as such, the action of the Corporation in enforcing the demolition order is ultra vires Article 21 of the Constitution of India unless such demolition is carried out according to the procedure established by law.

35. The further contention of the appellants is that they are not trespassers, but they have lawfully acquired their tenancy right in the building, and that such right to property of the appellants cannot be interfered with save by authority of law as provided in Article 300A of the Constitution. In support of the above contentions, the appellants have placed reliance on the decision of the Supreme Court in Kharak Singh v. State of U. P. : 1963CriLJ329 . In that case, the constitutional validity of Regn. 236 of U. P. Police Regulations came up for consideration before the Supreme Court. By virtue of the said regulation, the petitioner was subjected fo surveillance by the police. The police constable entered his house, knocked and shouted at his door, waked him up during the night and disturbed his sleep. On a number of occasions the police had compelled him to get up from his sleep and to accompany them to the police station to report his presence. The majority, view of the Supreme Court was that Regulation 236 (b) which authorizes 'domiciliary visits' was ultra vires Article 21 of the Constitution and was struck down. Reliance has also been placed on behalf of the appellants on the decision of the Supreme Court in Smt. Maneka Gandhi v. Union of India, : [1978]2SCR621 . In that case, the petitioner's passport was impounded. It was held by the Supreme Court that there was no good reason for impounding the passport of the petitioner and, furthermore, the petitioner had no opportunity of showing that the grounds for impounding it, either did not exist or had no bearing on public interest.

36. We are unable to accept the above contentions of the appellants. The fundamental rights cannot be availed of in justification of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory duty. The occupation of the appellants in the unauthorized structure is unlawful in view of Rules 59 and 60 of the Building Rules read with Section 392 of the Act. In Kharak Singh's case or in Maneka Gandhi's case referred to above, it has not been laid down by the Supreme Court that a citizen can conveniently rely on his fundamental right in defending his illegal act A citizen whose occupation of a place is unlawful cannot claim fundamental right to carry on business in such place. Personal liberty as contemplated by Article 21 of the Constitution does not include any liberty to be in unlawful occupation. Even assuming that there is any such liberty, there cannot be any grievance of the appellants that they are being deprived of such liberty by the Corporation without following the procedure established by law. The procedure laid down in Section 414 including the first proviso to Sub-section (3), is quite reasonable, fair and just from the point of view of Article 21 of the Constitution and, consequently, satisfies the test of reasonableness, as laid down by the Supreme Court in Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 and in Nand Lal Bajaj v. State of Punjab, : 1981CriLJ1501 relied on by the appellants. It is, however, significant to be noticed that the appellants have not challenged the constitutional validity of Section 414 on any ground. So the question of reasonableness of the procedure provided in Section 414 of the Act does not arise. Be that as it may, the Corporation has, in our opinion, acted in accordance with the procedure prescribed by Section 414 of the Act and, accordingly, there can be no question o: infringement of Article 21 of the Constitution. The same reason applies with equal force to the contention of the appellants based on their purported right to property under Article 300A of the Constitution. In our opinion, there is no merit in the contention of the appellants that their fundamental rights or their right of property are being interfered with by the Corporation, and we overrule the same.

37. Lastly, it is argued on behalf of the appellants that before enforcing the order of demolition, the Corporation should have provided the appellants with alternative accommodation. It is submitted that although the Corporation has the power to demolish an unauthorized structure, such power is coupled with a duty, that is to say, the duty to provide alternative accommodations or, at least, to grant compensation to the occupiers of the building, who will be dispossessed therefrom. This argument seems to be an argument of despair. The Act does not make any provision for alternative accommodation. The Corporation is a statutory body and it has to act in accordance with the provisions of the statute. As the Act does not make any provision for alternative accommodation, the Corporation has no right to provide alternative accommodation to the occupiers, who will be displaced from the said building.

38. As regards the claim of the appellants to compensation, our attention hasbeen drawn to Section 568 of the Actwhich provides, inter alia, that the Corporation may pay compensation to anyperson who sustain damage by person ofthe exercise of any of the powers vestedby the Act, or by any rule or by-law,in any municipal authority or in any municipal officer or servant. A person towhom compensation may be given by theCorporation under Section 568 refers to a person who is a stranger to the act in respect of which a municipal authority ormunicipal officer exercises any of thepowers vested in him by the Act. Whensuch a person suffers damage, the Corporation may pay compensation to him, buta person who is directly or indirectlyconnected with an illegal act for whichthe municipal authority or officer has toexercise the powers under the Act, sucha person cannot claim compensation onthe ground that he has suffered damage.The owner of an unauthorized structurecannot insist on payment of compensationunder Section 568 on the ground that the unauthorized structure having been demolished he has suffered damage. The appellants are in unlawful occupation ofthe unauthorized building in question,and in our opinion , they do not comewithin the purview of Section 568 for the purpose of maintaining a claim for compensation for the damage that they may suffer on account of their dispossession fromthe unauthorized structure. There is,therefore, no substance in the above contention of the appellants.

39. It is pointed out in the letter of the Chief Law Officer of the Calcutta Corporation dated December 31, 1981 to the respondent No. 11, Shyam Lal Agarwalla (Annexure H/1 to the affidavit-in-opposition) that the building is standing practically on the support of the two adjoining premises on both sides of it and it may fall to the ground at any moment on the slightest change in the soil structure in the foundation and, as such, it is unsafe. Further it is pointed out that besides the building being insecure and exposed to fire-hazard, it is really a deathtrap for the inmates of the building as well as the passers-by. Cracks have already developed in the adjoining premises and the building itself may crumble down at any moment like a pack of cards. It appears also from the report of Shri R. S. Gupta, the Adviser (Fire), Government of West Bengal, that there is no fire detecting or extinguishing system in the building, as also no Fixed Fire-Fighting Installation, in the form of Rising Mains, being kept charged with water by means of pump, for all time, with Hydrant outlets/hose reels connecting all the floors. There are also no portable fire extinguisher for first-hand fire fighting on any of the floors. The existing water tank on the ground floor with a small electrical pump as was found, is totally insufficient to meet the fire-fighting requirements There is also no alternative means of escape in the building, in the form of an additional stair-case, connecting all the floors, as also no 'Fire Lift' for use by Fire Services Personnel, in the event of any fire, with the exception of only one stair-case and lift, located at one end on the southern side. The occupants including those in the adjacent buildings are likely to be affected by hot air, smoke and heat in case of a fire. It has been observed that the building is considered to be unsafe.

40. It, therefore, appears that not only that the building was constructed in violation of the provisions of the Act and the Building Rules, it is also unsafe for human habitation.

41. After considering the facts and circumstances of the case and the submissions made on behalf of the parties, we are of the view that there is no merit in this appeal. The appeal, therefore, fails and is dismissed. There will, however, be no order as to costs. No order need be made on the application for interim order which shall be deemed to have been disposed of along with the appeal.

42. We, however, direct that the Corporation shall not enforce or execute the demolition order for a period of thirty days from date so as to enable the owner and the occupiers of the building tovacate the same. On the expiry of the period of thirty days the Corporation will be at liberty to execute the demolition order.

F.M.A.T. No. 588 of 1982.

43-44. In this appeal, the same arguments have been made by Mr. Dipankar Ghosh, learned counsel for the appellant, the Bank of Rajasthan Ltd., and by Mr. Pradip Ghosh, learned counsel for the respondents Nos. 1 to 4 including the Corporation of Calcutta as in Ram Awtar Agarwal v. The Corporation of Calcutta, F.M.A.T. 540, of 1982. For the same reasons as in Ram Awtar Agarwal's appeal, this appeal is dismissed. There will, however, be no order for costs.

45. The respondents Nos. 1 to 4 shall not execute the order for demolition for thirty days from date so as to enable the appellant to vacate the first floor of the building in question being premises No. 174, Chittaranjan Avenue, Calcutta.

Monoj Kumar Mukherjee, J.

I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //