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1987 DIGILAW 50 (CAL)

Sukumar Ganguly v. Howrah Municipal Corporation

1987-02-24

Susanta Chatterji

body1987
JUDGMENT 1. THE writ petitioner has alleged that he sold a portion of holding no. 13, Motilal Ghosh Lane, howrah, to Respondent No. 5 Shri Tulsi Ranjan Samaddar by registering a Deed of conveyance dated 16th December, 1983 for the purpose of building on the said plot of the land. The aforesaid Respondent no. 5 submitted a building plan for sanction by the Howrah Municipal corporation. The prayer for sanction was refused and on refusal, the said Respondent No. 5 submitted an appeal before the building committee. The building committee relaxed the building rules and recommended for sanction of the plan. After receiving the sanctioned plan, the Respondent No. 5 started construction illegally in deviation of the sanctioned plan and the Municipal Authority in bona fide exercise of the statutory powers served a notice under Sec. 365 (1) of the Calcutta municipal Act 1923 to stop the construction of such unauthorised portion of the construction. Inspire of service of such notice, the respondent No. 5 made illegal construction viz. two balconies side wall and unauthorised construction on the north within 4 feet of the side space in deviation from the sanctioned plan. It is also alleged that during the petitioner's traveling abroad, the Respondent No. 5 had encroached upon the petitioner's land and blocked the petitioner's passage for use of the sweeper and in such circumstances, the petitioner filed a Title Suit being T. S. No. 298/1984 in the 3rd Court of Munsif at Howrah. On 22nd December, 1984, the petitioner also wrote a letter to the then Deputy Engineer requesting him to take necessary action as the Respondent No. 5 continued with the illegal construction in deviation of the sanctioned plan. The petitioner also sent repeated letters on the said acorn. The Deputy Engineer, however, by his notice dated 2 9th February, 1985 asked the Respondent No. 5 to demolish the unauthorised portion of the building failing which the corporation would take steps of demolition. The Respondent No. 5 instead of complying with the requisitions went on to complete the building in utter deviation of the sanctioned plan. The Deputy Engineer, however, by his notice dated 2 9th February, 1985 asked the Respondent No. 5 to demolish the unauthorised portion of the building failing which the corporation would take steps of demolition. The Respondent No. 5 instead of complying with the requisitions went on to complete the building in utter deviation of the sanctioned plan. On the 12th December 1985, the respondent No. 5 also moved a writ application impleading the petitioner as a party alleging that inspire of construction made according to the sanctioned plan, the Corporation without giving him a reasonable hearing as per Provision of Section 177 of the Howrah Municipal corporation Act, 1980 had illegally served upon him a notice under Section 365 (1) of the Calcutta Municipal Act, 1923 and also a notice for demolition of alleged unauthorised construction and prayed for cancellation of the same. On 7th January, 1986, Hon'ble Mr. Justice Prabir Kr. Mazumdar after hearing the respective parties, directed the then Deputy engineer to inspect the site and to submit a report as the work done in deviation of the sanctions plan. On 3rd February, 1986, the said writ application was also disposed of directing the Municipal corporation, the Respondent No. 1 to give a hearing to the representation that might be made by the petitioner and the Respondent No. 5 and to pass orders in accordance with law. Pursuant to the said order passed by the High Court, the Howrah Municipal Corporation passed an order on 10th March, 1986, retaining all the unauthorised constructions of the three-storeyed house done in deviation of the sanctioned plan and in infringement of irreparable building rules. 2. BEING aggrieved by the said order, the petitioner has moved the present writ application before this court. It is submitted on behalf of the petitioner that the Respondent no. 5 having already once obtained sanction in relax able of relaxation building rules is not entitled to a further relaxation when the construction has been carried out in deviation of the sanctioned plan. Apart from breach of building rules the alleged construction is in direct contravention of the provisions of law and the Respondent Nos. 1-4 are not performing their statutory duties in failing to initiate proper proceeding for the demolition of the unauthorised construction made in deviation of the sanctioned plan. Apart from breach of building rules the alleged construction is in direct contravention of the provisions of law and the Respondent Nos. 1-4 are not performing their statutory duties in failing to initiate proper proceeding for the demolition of the unauthorised construction made in deviation of the sanctioned plan. The wrongful sanction on the part of the Respondent No. 5 as well as the failure of the Respondent nos. 1-4 to take effective measures according to law are arbitrary and accordingly, the petitioner is entitled to relief as prayed for. The Respondent No. 5 contested the case by filing an affidavit -in- opposition. Mr. Rabindranath Chaudhury, learned advocate, appearing for the Respondent No. 5 submitted that after purchasing portion of holding no. 13, Motilal Ghosh Lane, Howrah measuring about 8 chattack 32 sq. ft. the Respondent No. 5 submitted a building plan for sanction by the Howrah Municipal Corporation. After receiving the provisional permission for construction, the Respondent No. 5 deputy Engineer by his notice dated 2 0th February, 1985, asked him to stop construction and to demolish crtain portion of the building on allegation of some deviation of the plan. The Respondent No. 5 being aggrieved moved a writ application stating, inter alia, that the corporation Authorities without giving him a reasonable hearing as per provision of Section 177 of Howrah Municipal Corporation Act, 1980 have illegally served notice on him. After hearing the parties, hon'ble Mr. Justice Prabir Kr. Mazumder was pleased to direct the deputy Engineer to give a hearing to the Respondent No. 5 and pass an order in accordance with law. 3. PURSUANT to the said order, Howrah Municipal Corporation gave a hearing to the parties and found that there was some deviation and as such the construction was liable to be demolished. A review application was made before the Mayor of the Corporation and the Mayor took a lenient view and condoned the deviation. The petitioner is not an adjacent neighbour. There is a Khatal on the northern side of this building and on the back portion of the building there is a large area of vacant place. He relied upon this cases reported in 76 cwn page 983, AIR 1976 Cal 354 and 80 CWN page 760. 4. THE Municipal Corporation has also appeared and produced the previous plan and the subsequent plan. He relied upon this cases reported in 76 cwn page 983, AIR 1976 Cal 354 and 80 CWN page 760. 4. THE Municipal Corporation has also appeared and produced the previous plan and the subsequent plan. The petitioner appeared in person and argued that the impugned order of the Mayor is absolutely irregular arid illegal. He has not the authority to make an order and to relax the irreparable building rules. Section 319 of the Old Act act Schedule XVII does not warrant such power to exonerate the offending party from demolishing the unauthorised construction. The power of the Commissioner is fully covered by Section 331 of the said Act and Rule 30 and 32 read with Rule 94 of Schedule XVII are clear on this aspect. The new Act of 1980 has given a different dimension. Section 177 provides the power or discretion and if the party can show sufficient cause to the corporation satisfying that the deviation was of a minor nature and it has not, in any way, affected the sanitation and other amenities in the vicinity of other neighbour, the Mayor has the discretion to relax the rule and not to demolish. Mrs. Chaudhury, appearing for the Corporation has relied upon rule 32 of the Old Act which provides such relaxation. In view of her submission, it appears that the Municipality has sanctioned a building plan and in deviation thereof, the Respondent No. 5 has made construction by serial encroachment of the land of the petitioner. The projection of the balconies upon land not belonging to the Respondent no. 5 is not permissible in law and the Municipal Authority cannot grant any sanction of a building plan which permits a person to encroach upon others' land and such a permission is beyond conception of all jurisprudence. It is a mandatory provision that the Municipal authorities should take proper steps for demolition of unauthorised proceedings in accordance with law. Any aggrieved party may prefer appeal and/or review but the Mayor does not hold any power to relax any building rules to enable a party to raise unauthorised construction by projecting portion of construction upon others' land. It is a mandatory provision that the Municipal authorities should take proper steps for demolition of unauthorised proceedings in accordance with law. Any aggrieved party may prefer appeal and/or review but the Mayor does not hold any power to relax any building rules to enable a party to raise unauthorised construction by projecting portion of construction upon others' land. Such a concession does not amount to discretion but itself is a typical example of an illegal act and certainly an abuse of power and the court would not remain silent when there is not only erroneous exercise of power but an illustration of arrogance of power. The powers are conferred upon the statutory Authorities to exercise the same in accordance with law and the discretionary power is also circumscribed by provisions of law. The discretion is not synonyms with arbitrary exercise of power. Whenever in the name of discretion, there will be arbitrary exercise of power, the court will certainly rise on the occasion to strike it down. In the instant case, the Mayor has acted beyond his powers to exercise the power which is not warranted by law. It further appears that there is clear case of deviation' and such a deviation is admitted by the Respondent No. 5 himself. The only question has got to be considered by this court that as to whether the Mayor is possessed of such power in view of the Provisions of Howrah Municipal corporation Act of 1980 that any illegal act can be legalised by exercise of discretion. it has to be remembered that any amount of discretion is punctuated by judicial discretion. If there is any discretion devoid of ordinary sense of law and permits a party to do an illegal act it is not acceptable. It is very much evident that the Mayor has not appreciated that Howrah Municipal Corporation has no authority to allow any person to encroach the land of others by projection of the balconies which is in deviation of the originally sanctioned building plan granted by relaxation of building rules and bye-laws so far as the side space and the rear space are concerned. After obtaining such a building plan in violation of rules and bye-laws the Respondent No. 5 went to construct building in deviation of the said sanctioned plan and further encroached upon others' land by projecting the balconies as would be evident in the report of the Deputy Engineer. The Mayor cannot authorise such an illegal act under Rule 31 of Schedule XVII of the Municipal Act, 1923. 5. REGARD being had to the materials on record and considering the submission of the parties and by appreciating the provision of law, the writ application is allowed in part and the order of the Mayor dated 10. 6. 1986 is quashed. The Municipal Authorities are directed to initiate appropriate proceeding for demolition of such unauthorised construction made by the Respondent No. 5 made in deviation of the sanctioned building plan strictly according to law within two months from this date and take measures for demolition of such unauthorised portion in the manner as provided in the Amended Act.