Skip to content


Purusottam Lalji and ors. Vs. Ratan Lal Agarwalla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 141 of 1964
Judge
Reported inAIR1972Cal459,76CWN983
ActsCalcutta Municipal Act, 1951 - Section 414
AppellantPurusottam Lalji and ors.
RespondentRatan Lal Agarwalla and ors.
Appellant AdvocateB. Das and ;Tapas Banerjee, Advs.
Respondent AdvocateB.S. Bagchi, ;Archana Sen Gupta and ;Alokendu Mukherjee, Advs. (for Nos. 1 and 2) and ;Bratin Banerjee and ;R.K. Bose, Advs. (for Corpn. of Calcutta)
Cases ReferredPramila Sundari Dasi v. Corpn. of Calcutta of P. B. Mukharji
Excerpt:
- sabyasachi mukharji, j. 1. ratan lal agarwalla and lakshmi chand agarwalla. are the owners of three-fourth share and trustees for remaining one-fourth share in premises no. 21. hanspu-kur first lane, calcutta. the adjoining premises no. 20-a. hanspukur first lane is a trust property of which the trustees are mentioned in paragraph 3 of the petition under article 226 of the constitution to this court. it was alleged in the petition that at the back of premises no. 20-a, hanspukur first lane, there was a space in which there existed a structure with raniganj tiled sloped roof. it has been further alleged that the owners of the premises raised the height of the walls and constructed a roof thereon without any sanction by the corporation of calcutta. on a complaint by the petitioners action.....
Judgment:

Sabyasachi Mukharji, J.

1. Ratan Lal Agarwalla and Lakshmi Chand Agarwalla. are the owners of three-fourth share and trustees for remaining one-fourth share in premises No. 21. Hanspu-kur First Lane, Calcutta. The adjoining premises No. 20-A. Hanspukur First Lane is a trust property of which the trustees are mentioned in paragraph 3 of the petition under Article 226 of the Constitution to this Court. It was alleged in the petition that at the back of premises No. 20-A, Hanspukur First Lane, there was a space in which there existed a structure with Raniganj tiled sloped roof. It has been further alleged that the owners of the premises raised the height of the walls and constructed a roof thereon without any sanction by the Corporation of Calcutta. On a complaint by the petitioners action was taken by the Corporation of Calcutta. A notice was issued under Section 416 of the Calcutta Municipal Act, 1951, and thereafter the matter came up before the Commissioner under Section 414 of the said Act. Upon this the Commissioner having considered the matter passed the following order on 16th May, 1962--

'Heard representatives of both the owners and the complainants. There is a roof, but the R. T. roof has been admittedly converted to flat terrace roof. The character of the roof has been changed without sanction. If the party pays all charges as per Corporation Resolutions within one month from the date of communication of this order, the case may be dropped failing which the roof will be demolished.'

The petitioners thereafter made an application under Article 226 of the Constitution and a rule nisi was issued. The matter came up for hearing before Baner.iee, J. According to the learned Judge there was infringement of Rule 30 of Schedule XVI of the Calcutta Municipal Act, 1951 which could be relaxed under Rule 31. The learned Judge was of the view that it did not appear from the order of the Commissioner whether the unauthorised construction deserved relaxation under Rule 31 nor did the Commissioner take the approval of the Standing Building Committee when making the order of relaxation. In the aforesaid view of the matter the learned Judge was of the view that the order of the Commissioner could not be sustained and he accordingly quashed the order. The learned Judge however observed that the said order would not prevent the Commissioner from exercising the power under Rule 31 of Schedule XVI of the Calcutta Municipal Act in accordance with the law. An appeal was preferred from the said order and judgment of Banerjee. J. The appeal came up for hearing before the Division Bendh of this Court consisting of Sinha. J. (as his Lordship then was) and Sen, J. It was argued before the learned Judges of the appellate court that under Section 414 the Commissioner had a discretion in the matter and if the Commissioner had exercised the discretion such exercise of the discretion could not be and should not be interfered by this court The learned Judges were of the opinion that though this point was not taken before Banerjee, J. the appellants were entitled to urge this point as being a question of law. Their Lordships however were of the view that under Section 414 there was undoubtedly a discretion, but in respect of matters which involved violation of unrelaxable rules the Commissioner had no discretion and should always pass an order for demolition. The learned Judges referred to the decision of this court in the case of Pramila Sundari v. Corporation of Calcutta and to a bench decision in the case of Subhasini Nandi v. Corporation of Calcutta, (1955) 59 Cal WN 776. Their Lordships however felt that the view that their Lordships were inclined to take was in conflict with the division bench decision of this Court in the case of Yudhisthir Kumar Dutt v. Commr. of Corpn. of Calcutta, (1965) 69 Cal WN 249. In the aforesaid view of the matter their Lordships felt that two questions of importance arose, namely :--

'1. Under Section 414 of the Calcutta Municipal Act, 1951- has the Commissioner an absolute discretion to make or not to make, an order of demolition ?

2. Can he refuse to make an order, where there is an unauthorized construction infringing rules which are either--

(a) not relaxable under the provisions of the said Act or

(b) are relaxable but have not been relaxed ?'

Accordingly their Lordships referred this appeal under Rule 1 of Chapter XXXIA of the Original Side of this Court. The question for our consideration is the scope and effect of Section 414 so far as it affects the power and discretion of the Commissioner.

2. In order to decide the questions involved in this case it is necessary to consider the relevant statutory provisions. The Schedule XVI of the Calcutta Municipal Act, 1951 contains rules as to the use of building-sites and the execution of building work. Section 376 of the Calcutta Municipal Act. which is in Chapter XXII provides that no piece of land shall be used as a site for the erection of a new building, and no new building shall be erected, otherwise than in accordance with the provisions of the said Chapter, namely, Chapter XXII and Schedule XVI of the Act, and any orders, rules or by-laws made under the said Act. The expression, 'new buildings' has been denned under Section 5 Subsection (49) of the Calcutta Municipal Act, 1951. Section 387 of the Act provides that subject to the provisions of Section 388, and the provisions of other sections contained in Chapter XXII of the Act, Schedule 16 and or any orders, rules and by-laws made under the Act, relating to the erection of new buildings, shall, subject to the rules in Part X of the said Schedule XVI, apply to every alteration of. or addition to. any building, and to any other work (except that of necessary repairs not involving any of the works specified in Rule 90 of the Schedule XVI) made or done for any purpose in, to. or upon any building. Section 388 deals with the Dowers to relax provisions of the said Chapter, namely, Chapter XXII and Schedule XVI. It has been provided that in the case of en erection of any new building as defined in Sub-clause (b) (c) or fd) of Clause (49) of Section 5, and in the case of any addition or alteration or other work referred to in Section 387, such relaxation of the provisions of the Chapter and Schedule XVI may be made as the Commissioner may think fit. It provides further that no such relaxation shall apply to cases other than those specifically mentioned in Schedule XVI, and such relaxations are not likely to prejudicially affect the sanitation or ventilation of the building or other buildings in its vicinity. Therefore the effect of Section 388 is that only such deviations from the rules in Schedule XVI can be permissible if they are relaxable under the said Schedule and provided further that such relaxation do not prejudicially affect the sanitation or ventilation of the building in question or of other building in the vicinity. Section 414 is contained in Chapter XXIV of the Act which deals with demolition, alteration and stopping of unlawful work. In view of the controversy in this case, it is necessary to set out Section 414 which is as follows :--

'414. (1) 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 by-laws 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 Chapter 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 or an officer specially appointed by the Corporation with the approval of the State Government in this behalf 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 alterations: 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.

(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' includes the owner, the occupier and any other person who executes the erection, alteration, addition or other work or who is liable to make any alteration required by any notice issued under Rule 22 of Schedule XVI.'

Section 414-A which was inserted by Section 99 of the Calcutta Municipal (Second Amendment) Act, 1964 provides that 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 to the Tribunal constituted under Section 391-B 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. Section 415 deals with demolition or alteration of work in certain other cases. It is not necessary for the present purpose, to set out the said sections. Section 537 of the Act provides for various penalties. It provides for the punishment of fine as well as imprisonment for contravention of the offences mentioned therein. Certain punishments for contravention of provisions of Schedule XVI have also been provided in the said section. Section 543 deals with the liability of fine for putting buildings to other than declared use. Section 544 provides for fine for using building for carrying on offensive trade without previous declaration. It is not necessary for the purpose of this application to deal with the said section. As mentioned hereinbefore Schedule XVI of the Calcutta Municipal Act deals with the rules as to the use of the building site and the execution of building works. Rule 30 of the said Schedule deals with the requirement of open space in rear of building, regulating the rear height. In Rule 31 power has been given for relaxation of certain provisions of Rule 30 to the Commissioner in certain specified contingencies and in certain manner. In this connection reference may be made to Section 388 referred to above.

3. An analysis of the different provisions of the Act makes it clear that the buildings should conform to certain rules and before construction of new buildings sanction must be obtained. The rules to which the buildings should conform have been mentioned in the Act and powers have been given to the Commissioner to relax the rules for the purpose of sanction, in certain cases upon certain contingencies. If a building is constructed or continued to exist, which has been constructed without sanction or contrary to the rules, powers have been given to the authorities to impose penalties as well as to order demolition and alteration of the building. As noticed before, authority has been given to the Commissioner to order demolition, alteration and stopping of unlawful work in respect of such buildings by virtue of Section 414 of the Act. If an application is made for sanction, the said sanction should be granted in accordance with the rules provided. Relaxation is only possible in the manner indicated in the rules in granting such sanction. But the question that arises in this case is that where there has been no relaxation Qr in a case where the rule cannot be relaxed, in such a case, if a building or a portion thereof has been constructed or altered, what is the scope of the power of the Commissioner under Section 414 of the Calcutta Municipal Act. 1951

4. Before this question is considered further, it is necessary to refer to the facts of this case. From the affidavit of Ramanath Bose, who is the Superintendent (Building) of the Corporation of Calcutta, it appears that prior to 13th August. 1961 it was brought to the notice of the Corporation of Calcutta that certain unauthorised constructions were being made on the fourth storey of the premises No. 20-A. Mansou-kur First Lane. On 13th August. 1961 District Building Surveyor I, inspected the said premises in the morning and it was found out that a room in the fourth storey was being constructed on the western side with increased height. It appeared that the existing sloped roof of the said room had been demolished and the height of the wall on the Western side of the said room had been increased by 2 feet and iron beams had been fixed being preparatory to and for the purpose of placing the roof over the said beam. When the inspection took place no roof however, had been placed on the beam. It was found that the said alteration was being done without any sanction. Therefore, a notice under Section 416 of the Calcutta Municipal Act, 1951 was addressed to the owner. Thereafter a notice under Section 414 of the Calcutta Municipal Act was issued and pursuant thereto the owner of the building submitted a signed statement. The owners of the offending building as well as the adioining building were heard. Thereafter on the 16th of May, 1962 the Commissioner passed the order mentioned hereinbefore. It is apparent that the existing sloped roof of the room in the 4th storey had been demolished and the height of the walls of the said room on the western side had been increased by only 2 feet and a flat roof or terrace had been built in its place. According to the Superintendent (Building), there was no serious infringement or violation of any building rule, nor was there any obstruction of light or air in to the adjoining premises. It is clear that there was slight infraction of Rule 30 of Schedule XVI of the Act. The infraction was to a very small extent, but the infraction was in respect of a rule which could not have been relaxed in the circumstances of this case end had not been in fact relaxed by the Commissioner by any prior order. In those circumstances, instead of passing the order for demolition, the Commissioner passed the order in question. The main point that was contended for on behalf of the adioining owner was that in case of building or a part of the building, which had been built in violation of Rule 30 of Schedule XVI and relaxation in respect of which had not been granted and/or could not be granted, under Section 414 the Commissioner had no option left to him, but had to order demolition of that portion. It was contended that the Commissioner having not done that had acted illegally and in excess of his iurisdiction. The case of Sk. Abdul Samad v. Corpn. of Calcutta, 10 Cal WN p. 182 was a case dealing with the Calcutta Municipal Act, 1899. Under Section 449 of the Act the Magistrate was empowered to order demolition of building constructed in breach of the sanction. The section used the expression 'may'. It was held that the expression vested upon the magistrate a discretion and the expression 'may' should not be construed as 'shall'. Similar views were expressed in the case of Chuni Lal Dutt v. Corpn. of Calcutta, ILR 34 Cal 341. That was a case under the Calcutta Municipal Act, 1899. There it was held that the Municipal Magistrate should exercise the discretion with due regard to those rules, which guided Court of Equity in granting injunctions, with this difference that he had also to consider whether or not a building ought to be demolished on the ground of its being a danger or obstruction to the public. There the Magistrate had ordered demolition and in the facts of that case and in the light of the sections it was held that the Magistrate passed the order erroneously and without properly exercising his iurisdiction. Reference may be made to the decision in the case of Coron. of Calcutta v. Bangshidhar Bidasaria. 41 Cal WN 1373 = (AIR 1938 Cal 36). That was a case under the Calcutta Municipal Act, 1923. There the Court was considering the question whether order for demolition should have been passed by the Magistrate. Section 363 of the said Calcutta Municipal Act, 1923 provided as follows :--

'363. (1) If the Corporation are satisfied--

(1) that the erection of any new building--

(a) has been commenced without obtaining the written permission of the Corporation.

(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 by-laws made thereunder, or of any direction or requisition lawfully given or made under this Act or under such rules or by-laws, or

(2) 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 beina carried on or has been completed in breach of or otherwise than in accordance with, any sanction granted under Sections 330, 340 or 341, or

(3) that any alterations required by any notice issued under Rule 22 of Schedule XVII have not been duly made, they may. after giving the owner of such building an opportunity of being heard, apply to a Magistrate, end such Magistrate may make an order directing that such erection, alteration, addition or other work, as the case may be, or so much thereof as has been executed unlawfully as mentioned in Clauses (1), (21 or (3). or that any structure, specified under the Explanation to Clause (d) of Rule 53 or the Explanation to Clause (iv) of Rule 81. of Schedule XVII as a structure to be demolished or altered, shall--

(i) be demolished by the owner thereof or altered by him in accordance with the order of the Magistrate to the satisfaction of the Corporation, as the Case may require, or

(ii) be demolished or altered by the Corporation at the expense of the said owner; Provided that the Magistrate--

(a) shall not make any order under this section without giving the owner and occupier of the building to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence, and

(b) may make any such order notwithstanding the fact that a valuation of such building has been made by the Executive Officer under Chapter X for the assessment of the consolidated rate : Provided that where the Corporation have instituted proceedings under Section 493, no application shall be made under this section.

(2) Notwithstanding anything contained in Sub-section (1), no proceedings shall be instituted thereunder in respect of any work which has been done more than five years before the institution of such proceedings :

Provided that the onus of proving that the work was done more than five years oreviously shall lie on the owner.' It was held by Biswas. J.. that the Magistrate could refuse to pass an order for demolition of an unauthorised structure when he was satisfied that the case was not a fit one for such an order. In the case of the Corpn. of Calcutta v. Mulchand Agarwala, AIR 1956 SC 110, the Supreme Court was considering a case under the Calcutta Municipal Act, 1923. The Supreme Court had occasion to consider the ambit of the jurisdiction granted to the Magistrate under Section 363 of the Calcutta Municipal Act. 1923 and the Supreme Court held that the Magistrate might pass an order for demolition of the building, and though the word 'may' might in some contexts be con-strued as meaning 'shall' that was not the sense in which it had been used in Section 363. It was held that Section 363 did not require that when a building was shown to have been erected without permission or completed otherwise than in accordance with the terms of the perr mission or in breach of the building rules, an order for its demolition should be made as a matter of course. The section gave the Magistrate a discretion whether he should or should not pass such an order. The provisions of the Section 414 of the Calcutta Municipal Act, 1951 came to be considered by a Division Bench of this Court in the case of (1965) 69 Cal WN 249 and the Division Bench held that the power conferred under Section 414 did not provide that the Commissioner must make an order for demolition in every case where he was satisfied that any erection, alteration or addition of any building had been made or was being carried on in contravention of the Act or the Rules made thereunder. While on the one hand the section conferred upon the Commissioner the power to make an order for demolition, on being satisfied about any unauthorised construction, the section at the same time conferred upon him, the power to issue a notice to show cause on the party, why an order for demolition should not be made.

5. It appears to us that the Section 414 vests upon the Commissioner a discretion. The discretion is. for the purpose of facilitating the scheme and the object of the Calcutta Municipal Act, 1951, That discretion must be used bona fide and not on any extraneous ground. The section also enjoins that the Commissioner should exercise discretion quasi judicially, that is to say, by giving the parties an opportunity to show cause. The parties are given opportunity to show cause why an order for demolition should not be made. Therefore, if in an appropriate case where it is found that there has been infraction of the rule, which cannot be relaxed or which has not been relaxed the parties show sufficient cause to the Commissioner for example that the infraction is of minor nature or has not in any way affected the sanitation or ventilation and the amenities of the building in question and other adjoining premises, then the Commissioner has the discretion not to order demolition. Sufficient cause has not been defined. It is inappropriate to do so -- it must depend upon the facts and circumstances of each particular case. If an authority charged with the duty to see the observation of the rules has been given the discretion to decide whether any infraction of the rules or construction without sanction should be rectified by demolition or not, it would not be proper to circumscribe or curtail that discretion. The ratio of the principle decided by the Supreme Court in the case of AIR 1956 SC 110 would also apply to the provisions of this section, though the language of the section is slightly different and in this case the discretion has been given not to an independent judicial body, but the discretion has been given to the administrative head of the Corporation, to be exercised in a quasi-judicial manner. These in our view do not make any difference as to the nature of the discretion given. We are, therefore, on this aspect of the matter in respectful agreement with the view expressed by the Division Bench in the case of (1965) 69 Cal WN 249. In the judgment of reference, reliance was placed on a decision in the case of (1955) 59 Cal WN 776. In our opinion that case did not deal with the nature of the discretion given to the Magistrate under Section 363 of the Calcutta Municipal Act, 1923 or to the Commissioner under Section 414 of the Calcutta Municipal Act. 1951. Therefore, it is not necessary to discuss the aforesaid decision in detail. Reliance was also placed in the referring judgment on a decision in the case of Pramila Sundari Dasi v. Corpn. of Calcutta of P. B. Mukharji, J., (as his Lordship then was). The facts of that case were slightly different. But it appears that there is some observation by the learned Judge to the effect that the Corporation had no power to allow an unauthorised construction to continue by virtue of an order under Section 414 of the Act. If, by the said observation, it was meant by the learned judge that the Commissioner had no discretion at all, in an appropriate case, not to order demolition even in a case where the construction was in violation of the rules, with respect we cannot agree with the said view for the reasons mentioned hereinbefore. We will now deal with the two questions mentioned in the referring judgment. So far as the first question mentioned hereinbefore we are of the opinion that the Commissioner has a discretion either to make an order for demolition or not to make an order for demolition. That discretion is in no way circumscribed, but the Commissioner cannot act arbitrarily or on extraneous grounds. If on consideration of the facts of a particular case the Commissioner is satisfied that there is sufficient cause why an order for demolition should not be made even in case of unauthorised construction infringing rules which are either not relaxable under the Act or which have not been relaxed, he has the discretion not to make an order for demolition. That disposes of the second question raised in the referring judgment.

6. Counsel for the respondent adjoining owner contended that in the order in question the Commissioner had not indicated any reason. Counsel is right. Quasi judicial authorities should give some indication of the reason in the order. But though no reasons had been stated in the order, the background of the making of the order has been fully explained in the affidavit of the Corporation of Calcutta and in view of the fact that it appears to us that it was a very small infraction that was the reason for making the order in question, especially in view of the fact that there was some construction before and the new construction did not materially affect the amenities of the adioining premises. This matter has continued for a very long time and it would not be proper in this case to refer the matter back to the Commissioner for the purpose of stating the reasons. We must, however, emphasise the importance of giving some indications of the reasons in the order. We, therefore, hold that the Commissioner has a discretion to order demolition or not to order demolition even in a case where the construction was unauthorised, but that discretion must be used bona fide and on proper materials and not on the extraneous ground, but upon the facts of each particular case. Having considered the matter from that point of view, it appears to us that we cannot hold that the Commissioner has used discretion in view of the facts and circumstances of this case improperly or arbitrarily.

7. In the aforesaid view of the matter this appeal is allowed, the judgment and order of Banerjee, J., dated 11th July, 1963 are hereby set aside and the application under Article 226 of the Constitution is dismissed and the rule nisi issued is discharged. In the facts and circumstances of this case there will be no order as to costs of this appeal.

Arun K. Mukherjea, J.

8. I agree.

M.M. Dutt, J.

9. I agree. Reference answered in affirmative.


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