Kalidas Dutta v. Corporation Of Calcutta — 1983 DIGILAW 82 (CAL)

JUDGMENT 1. THIS Rule arises out of an application under Article 227 of the Constitution challenging the order dated 4th June, 1980 passed by the learned Building tribunal, Corporation of Calcutta affirming the order of demolition of the portion of the structure, mentioned in the judgment of the Building Tribunal, marked abcd in the sketch plan and also the 5" masonry wall marked EF in the demolition sketch, passed by the Deputy Commissioner, Corporation of Calcutta, 2. THE order of demolition of the said construction was based on the fact that the said constructions were un authorized having violated Rules 5 and 19 of Schedule 16 relating to the Rules as to the use of building sites and execution of building work passed under the Calcutta Municipal act, 1951. The learned Building Tribunal dealt with the relevant aspects of the matter with reference to the said Rules and came to the conclusion that the said Rules have been violated in making such constructions rendering the constructions unauthorized and making them liable to be demolished and affirmed the order of the Deputy commissioner, Corporation of Calcutta dated 28th July 1978. In the present application, Kalidas dutta, the petitioner herein, has challenged' the said order dated 4th of June, 1980 and prayed for setting aside of the said order on the grounds as mentioned in the petition. 3. MR. M. P, Banerjee, learned Advocate appearing on behalf of the petitioner, has argued this case on the following points : that Rule 5 is In fructuous because of the proviso of Rule 19 of Schedule 16 of the Calcutta Municipal Act. His argument is that the proviso of Rule 19 totally excludes Rule 5. That construction was made in 1969 and so long the said constructions were there and as such that should be allowed to stand because it would be unfair at this long interval to ask for demolition of the same. That this is a matter which was complained of by Monmohan Dutta, Mr. Moitra's client and his complaint was confined to the constructions of the first floor only and not beyond that. This is a matter of public interest. Mr. Moitra's client has no locus stand to argue before me. Moreover as it is confined to first floor only the order should be quashed, as it goes beyond the construction of 1st floor. 4. This is a matter of public interest. Mr. Moitra's client has no locus stand to argue before me. Moreover as it is confined to first floor only the order should be quashed, as it goes beyond the construction of 1st floor. 4. SO far as the first point is concerned, mr. Banerjee argued this case citing several cases before me. He argued that Rule 5 has been rendered in fructuous because of the proviso to Rule 19. He cited before me two decisions of the Supreme Court reported in AIR 1966 SC 12 (Kedarnath jute Manufacturing Co. Ltd. vs. The commercial Tax Officer and Ors.) and AIR 1967 SC 565 (Sales Tax officer, Jabalpur vs. Hanuman Prasad ). In the said decisions it has bas been held that the effect of an excepting or qualifying proviso, according to the ordinary rules of. construction, is to except out the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it. It cannot be called in question that, that is the function of proviso. It limits or qualifies the preceding portion of the content, may it be in a document or in a statute or in any Rule. Ordinary meaning of the term 'proviso' is a clause in a deed or section of statute which limits or qualifies the principal clause. ft may be some qualification not inconsistent with what is expressed in the first part (Jennings vs. Kelly, 194 (0 a. C. 206), 5. IN Jennings vs. Kelly, reported in 1940 a. C. 206, House of Lords observed : "that is frequently the very function of a proviso, namely, to include within the scope of the preceding words something which prima facie would not fall within it, or to exclude something which prima facie would so fall Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of two or more possible meanings is the right one to attribute to them." 6. IN the light of these observations the contentions of Mr. Baherjee may be analyses. He contended that Rule 5 has been made in fructuous on account of proviso of rule 19 of Schedule 16 Rule 5 deals with rear open space ; rule 19 deals with height from the rear. IN the light of these observations the contentions of Mr. Baherjee may be analyses. He contended that Rule 5 has been made in fructuous on account of proviso of rule 19 of Schedule 16 Rule 5 deals with rear open space ; rule 19 deals with height from the rear. I must point out there is another Rule, i. e., Rule 6 which deals with relaxation of Rule 5 in certain cases. Therefore, Rule 5 and Rule 6 taken together lay down the principle how much open space is to be kept with regard to the constructions dealt with therein and when such relaxation as provided in Rule 6 can be made by the Commissioner. Rule 19 states-"subject to the provisions of Rule 5 of this Schedule. . . " and after that the proviso comes that runs as follows : "provided that the provisions of this sub-rule shall not apply in relation to building not exceeding thirteen and a half meters in height. " Therefore, I have to construe this Rule in the light not only with the proviso, but also with regard to the opening words with which it starts, i.e., "subject to the provisions of Rule 5". What is the meaning of the term "subject to" in legal context. These words mean "conditional upon". Therefore Rule 19 including the proviso is subject to Rule 5. Therefore, Rule 5 is the paramount Rule and Rule 19 along with the proviso comes under that paramount Rule. Moreover, if that limitation or qualification in the proviso would have really made Rule 5 in fructuous, then Rule 19 would have started like subject to the provisions of rules 5 and 6, because Rules 5 and 6 jointly deal with the cases of rear space. Furthermore both these Rules govern different matters. Rule 5 governs rear space and Rule 19 governs height from rear. Therefore, any limitation that can be made by the proviso is only directed to that Rule 19 out and out and not beyond that. Therefore, reading these Rules together and on careful consideration I cannot construe rule 19 and its proviso as limiting or affecting the provisions of Rule 5 as contended by Mr. Banerjee. The next point of Mr. Banerjee is that as a long time has passed, this demolition order is unfair. Mr. Moitra, learned Advocate appearing on behalf of opposite party no. Banerjee. The next point of Mr. Banerjee is that as a long time has passed, this demolition order is unfair. Mr. Moitra, learned Advocate appearing on behalf of opposite party no. 2 has shown me from the record that the construction was only for the last 4/5 years 3 let me first see whether even if the construction was completed for about thirteen years, as contended by Mr. Banerjee I can set aside the order of the Tribunal. Mr. Ghosh, learned advocate appearing on behalf of the Corporation of Calcutta has referred to me Rule 47 read with Rule 57 of schedule 16. Rule 47 enjoins upon a person when erecting a new building to apply for permission to the commissioner and rule 57 provides that unless and until such permission Is given, erection of a building shall not be commenced. Therefore, if the entire construction started on an illegal basis, then in that case, the contention of mr. Banerjee that justice, equity, fairness and good conscience demand the non-demolition appears to me to be rather inconsistent. Which is illegal, cannot be-valid, which is blatant violation of a provision of law cannot be fair and cannot meet the elements of conscience to attract the discretionary power of Court on equitable principles. Therefore, I cannot reconcile with the arguments of Mr. Banerjee that because the construction is allowed to stand for some years, it will not be proper or right for the Court to ask for its demolition. 7. THE next contention of Mr. Banerjee is that Monmohan Dutta was a private person. On his letter Corporation of Calcutta could not have taken initiative, because it is a matter of public interest. That argument also is not acceptable to me. It is a matter of public interest. When once, whatever may be the source, the Corporation of calcutta comes to know of any violation or breach of rules it can take the initiative. It is a matter of public interest, and any source-may be of a relation, co-owner or co-sharer or any member of the public, can point out this discrepancy and the Corporation can take notice of it. 8. ANOTHER point that was taken by Mr. It is a matter of public interest, and any source-may be of a relation, co-owner or co-sharer or any member of the public, can point out this discrepancy and the Corporation can take notice of it. 8. ANOTHER point that was taken by Mr. Banerjee is that the premises was situated at the site of more than one street, and the provisions of Rule 5 (4) of Schedule 16 of the Calcutta Municipal Act are applicable and the Deputy Commissioner and the Tribunal failed to take note of the fact properly and duly to the prejudice of the petitioner. I find from the order of the Tribunal that this matter was considered duly and properly. On a thorough consideration they came to the finding. As such there is no illegality or defect or lack of jurisdiction on the face of it. Mr. Ghosh, learned advocate for the corporation of Calcutta refers to me Section 414 of the Calcutta Municipal Act. The said Section provides for demolition of work unlawfully commenced. When the order of demolition was passed, after applying the mind properly, it cannot be said that this order is bad. In the order there is no defect, no irregularity, no illegality. On a consideration of all the materials the, order has been passed by the Deputy Commissioner. The Tribunal has affirmed the order also after going into the merits and it will be rather unusual on the part of this court to interfere or set aside the order which has come to a conclusion on assessment of all the facts and on a careful consideration of all the elements and facts involved in this case. 9. MR. Moitra rightly points out to me that the order is not capricious nor arbitrary and therefore I cannot disturb the findings of the Tribunal or the order passed by the deputy Commissioner on 28.7.78. 10. ON careful consideration I dismiss the present application; the judgment and order of the Tribunal are correctly made on consideration of all material facts and provisions of law and taking into consideration all the relevant rules of the Calcutta Municipal Act. Besides there is no apparent error or erroneous decision or lack of jurisdiction or illegalities/irregularities appear on the face of the report and as such the application is liable to be dismissed. Besides there is no apparent error or erroneous decision or lack of jurisdiction or illegalities/irregularities appear on the face of the report and as such the application is liable to be dismissed. After hearing the learned Counsel for the parties and perusing the papers, I do not find any ground for disturbing the order of the Tribunal which has been challenged here. Hence, it is ordered, that the Rule is discharged. The order for stay is vacated. There will be ho order as to costs. Records be sent down immediately. Rule discharged.