PREMCHAND v. CORPN. OF THE CITY OF BANGALORE — 1981 DIGILAW 34 (KAR)

G. N. SABHAHIT, J. ( 1 ) 1. These writ petitions are instituted under art. 226 of the Constitution of India, with a prayer for the issue of writ of certiorari in each case for quashing the order of the commissioner, Corporation of the City of Bangalore, purported to have been passed under S. 443 (4) of the Karnataka municipal Corporations Act, 1976 (hereinafter referred to as the Act), revoking the licence granted in each case for the construction of multi-storeyed building. Since the same question of law is involved in these cases, they have been heard together and a common order is being passed. ( 2 ) THE learned counsel for writ petitioners, in the dlfferent petitions, vehemently contend that the Commissioner, Corporation of the City of Bangalore has no authority under the provisions of the Act to revoke the licence once granted for the construction of a building and as such the order issued in each case is one without jurisdiction and as such void. They pray that the orders passed should be quashed by issuing a writ of certiorari in every one of these cases. ( 3 ) AS against that the learned Advocate general appearing for the Corporation, urged on me that the Commissioner Corporation of the City of Bangalore, has got ample right to revoke the licence issued, if any of the restrictions or conditions in the licence are evaded or infringed by the grantee as provided in sub-section (4) of S. 443 of the Act. ( 4 ) THE sole question, therefore, that arises for my consideration in these cases is: whether the Commissioner, Corporation of the City of Bangalore, has got authority to revoke the licence issued for con- struction of buildings under any of the provisions of the Act? s. 443 of the Act occurs in Chapter XXI of the Act under the rubric 'procedure and miscellaneous'. s. 443 of the Act occurs in Chapter XXI of the Act under the rubric 'procedure and miscellaneous'. It reads : "subject to the special provisions in chapter XV and XVII regarding buildings and private markets and subject to such sanction as may be required for the refusal of a licence or permission, any licence or permission, granted under this Act or any rule or bye-law made under it, may at any time be suspended or revoked by the Commissioner, if any of its restrictions or conditions is evaded or infringed by the grantee or if the grantee is convicted of a breach of any of the provisions of this act or of any rule, bye-law or regulation made under it, in any matter to which such licence or permission relates, or if the grantee has obtained the same by misrepresentation or fraud. " ( 5 ) THE learned counsel appearing for the writ petitioners invited my attention to the opening words of the subsection which says "subject to the special provisions in Chapter XV and XVII regarding buildings and private markets and subject to such sanction as may be required for the refusal of a licence or permission'. Thus they pointed out that sub-section (4) of S. 443 of the Act would not apply in the case of building licence and licence for private markets which are dealt with in Chapters XV and XVII of the Act. ( 6 ) CHAPTER XV of the Act speaks of regulation of buildings. General powers are contained from S. 295 to S. 321 (both sections inclusive ). It is a self-contained chapter. S. 303 of the Act speaks of grounds on which approval of site for, or permission to construct building, may be refused. S. 317 speaks of grounds on which permission to construct or re-construct hut may be refused. S. 321 speaks of demolition or alteration of buildings or well-work unlawfully commenced, carried on or completed. Thus, it is obvious that the permission or the licence to construction of a building is dealt with in chapter XV and the Legislature in its wisdom has excluded the operation of sub-section (4) of S. 443 of the Act in case of such building licence, as also for private market, dealt with in Chapters XV and xvii. Thus, it is obvious that the permission or the licence to construction of a building is dealt with in chapter XV and the Legislature in its wisdom has excluded the operation of sub-section (4) of S. 443 of the Act in case of such building licence, as also for private market, dealt with in Chapters XV and xvii. It is obvious, therefore, that the revocation of licence contemplated in subsection (4) of S. 443 of the Act pertains to licence contained in the Act with regard to other licences, for example Chapter xvii speaks of licence for places in which animals are kept (vide Section 346 ). S. 351 speaks of licence for private car-stand. S. 365 speaks of licence for slaughterhouses. S. 381 speaks of butcher's, fishmonger's and Poulterer's licence, etc. It is obvious, therefore, that sub-section (4) of S. 443 of the Act relates to such licences except licence dealt with in Chapter xv with regard to construction of buildings licence and for private market contemplated in Chapter XVII. ( 7 ) THIS is made obvious even when we read the provisions in S. 321 and the provisions made in sub-section (4) of S. 443. Sub-section (4) of S. 443 contemplates a situation when any of the restrictions or conditions in the licence is evaded or infringed by the grantee. S. 321 speaks of demolition or alteration of buildings or wellwork unlawfully commenced, carried on or completed. S. 321 (1) (i) (b) states"is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based. " Sub- section (i) (c) states:"is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws", and S. 321 provides for a different type of remedy altogether in such cases and it does not speak of revocation of licence as contemplated under subsection (4) of S. 443 of the Act. Therefore, the provisions contained in S. 321 and the provisions contained in sub-section (4) of S. 443 of the Act are repugnant to each other and that is the reason why sub-section (4) of S. 443 of the Act begins with the word ''subject to the special provisions in Chapter XV". Therefore, i am of the considered view that the provisions of sub-section (4) of S. 443 of the act do not apply to building licences which are governed by the rules and regulations of Chapter XV of the Act. In that view, I have no hesitation to hold that the Commissioner, Corporation of the City of Bangalore, has no right given to him under the Act to revoke a building licence once issued. ( 8 ) THE view that I am taking finds full support in a Division Bench decision of this Court rendered in the case of D. Achaiah Shetty v. City of Bangalore municipal Corporation, Bangalore by its commissiower AIR 1972 Mys 203 = (1972) 1 Mys LJ 186. A Division Bench of this court consisting of Chief Justice Narayan pai and Justice Malimath had an occasion in this case to consider the analogous provisions in the City of Bangalore muncipal Corporation Act, 1949. Subsection (4) of S. 385 of the said Act reads:"subject to the special provisions in chapter X and XII regarding buildings, and private markets and subject to such sanction as may be required for the refusal of a licence or permission, any licence or premission, granted under this act or any rule or bye-law made under it may at any time be suspended or revoked by the Commissioner, if any of its restrictions, limitations or conditions is evaded or infringed by the grantee, or if the grantee is convicted of a breach of any of the provisions of this Act or of any rule, bye-law or regulation made under it in any matter to which such licence or permission relates, or if the grantee has obtained the same by misrepresentation or fraud. " ( 9 ) THUS, it is evident that but for the chapter numbers, namely, X and XII, rest of the provision is identical. Chapter x in that Act relates to building regulations General powers. The subject is dealt with in the present Act in Chapter xv. Chapter XII in that Act relates to licences and fees. " ( 9 ) THUS, it is evident that but for the chapter numbers, namely, X and XII, rest of the provision is identical. Chapter x in that Act relates to building regulations General powers. The subject is dealt with in the present Act in Chapter xv. Chapter XII in that Act relates to licences and fees. This subject is dealt with in Chapter XVII in the present Act. Thus, it is manifest that the provisions are identical. The Division Bench under the provisions of the earlier Act, namely, mysore Act No. 69/1949, considered whether the Commissioner of the Corporation had the power to revoke a building licence once issued as in the present case and Chief justice Narayana Pai who spoke for the bench has categorically held that there is no power in the Statute which could be exercised by the Commissioner of the corporation to withdraw or cancel a licence to put up a building, already issued to an applicant. Speaking for the bench in that judgment, this is what he has observed :"even otherwise, the question has to be examimed on the basis of the source of the power, if any, for withdrawing the licence as attempted to be done in this case. In tracing the said source one has to look into only the provisions of the city of Bangalore Municipal Corporation Act which is the statute which governs the Corporation and its activities and powers and activities of its officers. As already pointed out by us, there is no provision in the statute, or any power expressly conferred on the commissioner or even on the Corporation to withdraw a licence already issued". ( 10 ) THESE observations apply on all fours to the facts of the present case. Recently Hon'ble Mr. Justice K. S. Puttaswamy, of this Court had an occassion to consider the same point of law as is before me in W. P. 12576/1979 (1980) 1 Kar LJ 172. His lordship considering the provisions of the Act and relying on the Division Bench decision referred to above has arrived at the conclusion that the Commissioner of the Corporation has no power to revoke a licence once issued in the case of construction of buildings. This is what he has observed in his order:"sub-SECTION (4) of Section 445 of 1976 Act is in pari materia with Section 385 (4) of the 1949 Act. This is what he has observed in his order:"sub-SECTION (4) of Section 445 of 1976 Act is in pari materia with Section 385 (4) of the 1949 Act. In Achaiah setty's case, this Court on an examination of the provisions cf the 1949 Act, which are in pari materia or analogous with the provisions of the 1976 Act, has ruled that a building licence once granted cannot be revoked by that authority or any other authority under that Act. In my opinion, the ratio in Achaiah setty's case, though the same was rendered dealing with the provisions of the 1949 Act, is equally applicable in determining the power of the Commissioner to revoke the licence granted by the assistant Engineer under the 1976 Act. In this view, I hold that the order made by the Commissioner to revoke the licence and the consequent impugned notice issued by respondent-2 are without jurisdiction and power and are, therefore, liable to be quashed," ( 11 ) ACCORDINGLY His Lordship quashed the order revoking the licence in that case. In the result, therefore, I am satisfied that the impugned order issued by the commissioner, Corporation of the City of bangalore, in everyone of these cases is one without jurisdiction being ultravires the power vested in him under the provisions of the Act. Hence the same is liable to be quashed as being arbitrary and passed without jurisdiction. ( 12 ) IN the result, therefore, all the writ petitions are allowed. The order of the commissioner, issued in each case revoking the building licence of the applicant is hereby quashed. Writ Petitioner in W. P. No. 23849/80 is however, at liberty to separately move this Court in regard to other reliefs sought for by him in his writ petition. It is made clear at the request of the learned Advocate General, that any construction carried OB after obtaining the stay by this Court by any of the writ petitioner, is also subject to the provisions of law. ( 13 ) ON the peculiar facts of the cases, I direct writ petitioners in all these writ petitions and the Respondents to bear their own costs. --- *** --- .