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1983 DIGILAW 100 (CAL)

Banwari Lal Goal v. Commr Corpn Of Calcutta

1983-04-12

C.MOOKERJEE

body1983
JUDGMENT 1. IT is no longer disputed that the petitioner had erected 6th and 7th storeys to his Premises No. 17, Shyama Prasad mookherjee Road, Calcutta without obtaining any sanction from the Corporation of Calcutta. He had also violated several other provisions of the Building Rules contained in the Schedule XVI of the Calcutta Municipal Act, 1951 in respect of the other portions of the said premises. A proceeding under section 414 of the Calcutta Municipal Act, 1951 was started and the Deputy Commissioner, Corporation of Calcutta after hearing the petitioner ordered for demolition of the 6th and 7th storeys of the said building which had been constructed in unauthorised manner and in gross violation of the Budding Rules. The deputy Commissioner did not, however, pass any demolition order in respect of the other constructions made in infringement of the Building Rules. 2. THE petitioner, being aggrieved, preferred an appeal before the Building tribunal, Corporation of Calcutta which was heard by Sri L. C Banerjee, President of the Tribunal and Sri H. K. Ghosh and Sri P. C. Roy Chowdhury, Assessers. On 10th August, 1977 the teamed president of the Tribunal upheld the order passed by the Deputy Commissioner and dismissed the appeal. The two assessors separately recorded the reasons for their disagreement with the v. views of the learned President of the tribunal. According to the Assessor, because of the reasons recorded By them no demolition order ought to be passed in respect of the 6th and 7th storeys of the premises. The President of the tribunal also recorded; his opinion in respect of the differing views of the assessors. The President dismissed the appeal and affirmed the order. The petitioner in this writ application has challenged the aforesaid decision of the learned president of the tribunal. The petitioner in the first place has contended that in terms of Rule 15 of the Calcutta Corporation Tribunal (Conduct of Business)'rules, 1965, the decision ought to be in accordance with the agreed opinion of the Assessors who had dissented from the decision of the learned President of the Tribunal on the question whether the 6th Land 7th storeys of the premises ought to be demilished. Under Rule 15 (3) of the calcutta Corporation Tribunal (Conduct of Business) Rules, 1965 the decision on all questions of law and procedure rest solely with the President of the Tribunal. Under Rule 15 (3) of the calcutta Corporation Tribunal (Conduct of Business) Rules, 1965 the decision on all questions of law and procedure rest solely with the President of the Tribunal. The Rule 15 (4) of the said Rules has prescribed that the decision on the question of fact shall be in accordance with the opinion of the President unless both the Assessors agree in holding an opinion different from that of the President in which case the decision shall be in accordance with the agreed opinion of the Assessors. The Rule 15 (5) lays down that decision on any question which according to the President is a mixed question of law and fact, shall be in accordance with the opinion of the President but the opinion of each of the assessors shall also be indicated in the judgment. 3. I am unable to accept the submission of Mr. Bankim dutt learned advocate for the petitioner, that the question on which the two Assessors had disagreed from the opinion of the President was purely a question of fact and, therefore, the decision ought to be in accordance with the agreed opinion of the. Assessor. The Assessors in their not of disagreement Concurred with the learned President, of the Tribunal that tike appellant petitioner had constructed the 6th and 7th storeys of the. premises without submitting any plan and without obtaining any sanction at alt. They, inter-alia observed, "we agree with the President where he remarks, that the appellant had audacity to construct". The Assessors purported to give certain reasons for their opinion that no demolition order ought to be passed in respect of the 6th and 7th storeys of the petitioner's premises. 4. MR. Dutt, learned advocate for the petitioner, has submitted that under sub-section (3) of section 414 of, the calcutta Municipal Act, 1951 the Commissioner may order demolition of the erection, alteration or any other work which had been commenced without obtaining any permission required to be obtained under the Calcutta Municipal act, 1951. In this connection, he has referred to the decision of the, Supreme court in Corporation of Calcutta v. Mulchand Agarwala AJ. R. 1956 S. C. 110. Mr. Dutt also has relied upon the Special Bench decision of this Court in purusottam Lalji and others, v. Ratan Lal agarwalla and others A. I. R. 1972 Cal. In this connection, he has referred to the decision of the, Supreme court in Corporation of Calcutta v. Mulchand Agarwala AJ. R. 1956 S. C. 110. Mr. Dutt also has relied upon the Special Bench decision of this Court in purusottam Lalji and others, v. Ratan Lal agarwalla and others A. I. R. 1972 Cal. 459 After the aforesaid decision in Corporation of Calcutta v. Mulchand Agarwala. (supra) and in the case of Purushottam Lalji and others v. Ratan Lal agarwolla (supra), the Calcutta Municipal (Amendment) Act, 1974 with effect from 26th March, 1974 had added to section 414 (3) the following proviso :- "provided further that where the structure does hot 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 of0 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." 5. FOR disposal of the present application, it is, however, unnecessary to consider whether the insertion of the said proviso has any effect, upon the extent of the discretion of the Commissions 7 in ordering demolition or alteration, abortion or other work unlawfully commenced, carried on or completed. The deputy Commissioner who at the first instance passed the order for demolition of the 6th and 7th storeys of the building had refused to exercise his discretion in favour of the petitioner by not ordering demolition of the 6th and 7th storyes of his building. He had, however, exercised his discretion by allowing several other items of unauthorised works carried out by the petitioner to remain. The question whether the discretion under section 414 (3) of the Act ought to be exercised in petitioner's favour was not a pure question of fact. I have already recorded that the two Assessors did not dissent from the finding of fact made by the learned President of the tribunal that without obtaining any sanction the petitioner had constructed the 6th and 7th storeys in his building; the Assessors also did not differ fro the other finding of the Tribunal that the said unauthorised constructions in the 6th and 7th storeys also infringed rules 30 and 33 of the Schedule XVI of the Calcutta Municipal Act,. 1951. 6. 1951. 6. THE further question whether the deputy Commissioner had rightly exercised his discretion by, ordering demotion of the aforesaid structures was riot a question of fact but the same was a mixed question of law and fact. The supreme Court in the case of Sree Meenakshi Mills Ltd. Maduraiy. Commissioner of Income Tax, Madras, A. I. R 1957 S. C. 49, had, inter-alia, observed "in between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other the questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the, ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained". In the instant case, one of the questions before the Tribunal was whether or not the Deputy Commissioner had acted arbitrarily and unreasonably, by refusing to exercise his discretion and to allow the impugned constructions to stand and whether he had applied wrong principles of law to the fact. The before, whether on the facts proved and admitted an order of demolition ought to be made, was a question of law or a mixed question of law and fact. Therefore, under sub-rules (3) and (5) of Rule 15 of the Calcutta Corporation tribunal (Conduct of Business) Rules, 1965 the decision of the President on the said question whether the unauthorised constructions ought to be demolished was final. The different opinion of the two assessors on the "said question of law could not prevail. The appeal was bound to be disposed of in accordance with the opinion of the President. According to the petitioner himself section 414 (3) of the Act vested the Commissioner with a discretion and both the Deputy Commissioner and the president of the Tribunal had declined to exercise such discretion in favour of the petitioner by allowing the unauthorised construction in the 6th and 7th storyes of the building to stand. I am usable to held that such exercise of discretion has been made arbitrarily and without consideration of the relevant facts. I am usable to held that such exercise of discretion has been made arbitrarily and without consideration of the relevant facts. Therefore, exercising writ jurisdiction, this court cannot substitute its own views and hold that the said unauthorised constructions ought to be allowed to stand. In the case of Corporation of Calcutta, v. Mulchand Agdrwala (supra), the learned Magistrate under section 363 of the Calcutta Municipal Act, 1923 refused to pass the demolition order which was upheld in revision by the learned Single Judge of this Court. The supreme Court held that section 363 of the Calcutta Municipal Act, 1923 did give the Magistrate a discretion whether he should or should not pass a demolition order. The Full Bench in Purusottam Lal and others v. Ratan Lal Agarwala and others (supra), discharged a rule obtained by neighboring owners against the order of the Commissioner dropping a proceeding under section 414 of the Calcutta Municipal Act, 1951 and allowing unauthorised constructions to stand on payment of all charges as per-Corporation resolutions. Both the afore said reported cases, the authorities under the Act had exercised discretion in favour of the owner who had made unauthorised constructions and did not order demolition. In the instant case, the deputy Commissioner and the President of the Tribunal for reasons given by them have declined to exercise such discretion in favour of the, petitioner and have ordered demolition of the structures in question. Therefore, I am not in a position to interfere with the decision complained of. 7. THE learned President of the Tribunal, inter-alia, found that the impugned constructions had been erected not only in an unauthorised manner but by infringing several Building Rules. According to Mr. Pradip Ghosh, learned advocate for the respondents, the said Building Rules were not relaxable. The president of the Tribunal has also discussed in detail the other reasons contained in the joint opinion given by the two Assessors and also indicated why he was unable to agree with the Assessors opinion. 8. FOR the foregoing reasons, I dismiss this application without any order as to costs. Application dismissed.