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2000 DIGILAW 448 (CAL)

RAMENDRA NATH BANERJEE v. STATE OF WEST BENGAL

2000-09-01

D.K.SETH

body2000
D. K. SETH, J. ( 1 ) THE petitioner has challenged the order dated 26th May, 2000 passed by the Director of Local Bodies and the consequent order dated 30th May, 2000 passed by the Chairman of Panihati Municipality, both of which are contained in annexure 'e' to the petition, directing demolition of the construction made by the petitioner on the ground that there has been a deviation from the sanctioned plan. There was an interim order passed by this Court which is now being sought to be vacated by means of this application for vacating the interim order filed on behalf of the private respondent. ( 2 ) MRS. Sanghamitra Nandi, learned counsel, appearing for the private respondent contends that Director of the Local Bodies has jurisdiction to pass the order dated 26th May, 2000 contained in annexure 'e' on account of the power conferred upon him under section 426 of the West Bengal Municipal Act, 1993 and that such order is binding on the Municipality and therefore the order passed by the Chairman, dated 30th May, 2000 contained in annexure 'e' is therefore justified. She also relied upon the provision of section 218 of the West Bengal Municipal Act and contended that the Municipality has every right to direct demolition of the building constructed unauthorisedly. ( 3 ) THE learned counsel appearing for the petitioner on the other hand points out that the Chairman has no power to direct for demolition. It is only the Board of councillors of the Municipality who can do it, in view of the expression used in section 218. He further contends that section 426 does not confer any power on the Director to issue an order for demolition. and the Municipality can act as a rubber stamp in carrying out the direction by the Director. ( 4 ) THE learned counsel appearing for the Municipality on the other hand, contends that the Municipality has carried out the direction of the Director since there is no alternative but to carry out the same. ( 5 ) IN fact, hearing of the application for vacating the interim order required the Court to enter into the merits of the case and as such the learned counsel appearing for the respective parties had addressed the Court on the merit of the writ petition itself. ( 5 ) IN fact, hearing of the application for vacating the interim order required the Court to enter into the merits of the case and as such the learned counsel appearing for the respective parties had addressed the Court on the merit of the writ petition itself. The writ petition is, therefore, by consent of the counsel for the parties, treated as on day's list and taken up for hearing. I have heard the learned counsel appearing for the respective parties at length. Section 426 of the West Bengal Municipal Act, 1993 prescribed as follows :"426. Supervision by Director of Local Bodies. (1) The Director of Local Bodies (or the District Magistrate or the Sub-Divisional Officer), in addition to the powers or functions delegated to him may- (a) inspect, or cause to be inspected, any immovable property owned, used or occupied by the Municipality or any work in progress under the direction of a municipal authority. (b) inspect or examine any department of the Municipality or any office, service, work or thing under the control of the Board of Councillors. (c) record, in writing, for the consideration of the Board of Councillors, any observation he thinks proper in regard to the proceedings or duties of any of the municipal authorities. (2) For the purpose of inspection or examination, the Director of Local Bodies (or the District Magistrate or the Sub-Divisional Officer) may required the Chairman or any Officer of the Municipality- (a) to produce any book, record, correspondence, plan or other document, (b) to furnish any return, plan, estimate, statement, account or statistics or (c) to furnish or obtain any report. (3) When a requisition is made under sub-section (2), the Chairman or any officer of the Municipality as the case may be, shall comply with such requisition. ( 6 ) THE plain reading of the said provisions show that the Director is invested with the power under Clause (a) of sub-section (1) of section 426 in respect of any work in progress under the direction of the Municipal authority. Thus such power to inspect relates to the works that are in progress under the direction of the Municipal authority. Any construction made by the private individual according to the sanctioned plan is not a construction or work in progress under the direction of the Municipal authority. Thus such power to inspect relates to the works that are in progress under the direction of the Municipal authority. Any construction made by the private individual according to the sanctioned plan is not a construction or work in progress under the direction of the Municipal authority. The jurisdiction of the Municipal Authority is confined to the sanction of the plan and if there is any deviation it may exercise its power under section 218 or 220 and 221 as the case may be. The construction carried on pursuant to the sanctioned plan by an individual is not under the direction of the Municipal Authority though it may be by permission of the Municipal Authority. Such work is definitely carried on by the individual himself according to his own volition, otherwise there would not have been any provision provided in section 218, 220 and 221 for taking steps with regard to deviation from the sanctioned plan or contravention of the provisions of the Act. The individual or the person after obtaining the sanctioned plan may or may not construct. Such construction if undertaken by such person definitely progress according to the direction of such person. In respect of such construction Municipality has no interest. It has only the responsibility to see that the construction is carried on according to the sanctioned plan and in conformity with the Act and the Rules. Thus Clause (a) does not confer any power on the Director to inspect any construction carried on by a person or an individual under a sanctioned plan. The deviation from the sanctioned plan in respect of such construction are to be controlled by the Municipality through the different provision contained in the said Act. The Director cannot usurp such power of the Municipality. ( 7 ) SO far as the Clause (b) is concerned the same is general supervisory power conferred on the Director with regard to the departments of the Municipality which has nothing to do with the individual case relating to the construction of building after the plan is sanctioned. Whether there is any deviation or not from the sanctioned plan or there is any contravention of the Building Regulation in course of the building activities by a private individual is concerned, the Director has not been conferred with any power with regard thereto. ( 8 ) IT is contended by Mrs. Whether there is any deviation or not from the sanctioned plan or there is any contravention of the Building Regulation in course of the building activities by a private individual is concerned, the Director has not been conferred with any power with regard thereto. ( 8 ) IT is contended by Mrs. Nandy that the Director has in this case exercised his power under Clause (a) of sub-section (1) of section 426. By reason of sub-section (3) the Municipality is bound to comply with such direction. This contention does not seem to be sound for the simple reason that the compliance contemplated in sub-section (3) is confined to the requisition made by the Director under sub-section (2) and not beyond. Then the requisition under sub-section (2) is confined to (a) the production of books, records, correspondence, plan or other documents, (b) furnishing of return, plan estimate, statement, account or statistics, or (c) furnishing or obtaining of report. ( 9 ) WHILE interpreting a statute it has to be read in the context it has been provided. The provision has to be reconciled with the scheme and object for which it is enacted. Different parts of the statute cannot be interpreted in isolation or out of context. No part of the statute is redundant. Every part has to be given its due meaning, a meaning that advances the object and purpose of the statute. It has to be interpreted according to its simple gramatical meaning. Intrinsic or extrinsic aid may not be necessary if the meaning can be had from the simple construction. Intrinsic aid is preferred to extrinsic aid. Extrinsic aid can be restored to when the intrinsic aid does not yield the desired result. ( 10 ) IN the present case the three sub-sections are to be read together and reconciled with the context and purpose in consonance with the scheme and object. Plain reading of section 426 shows that each of the sub-sections are inter dependant with each other. Sub-section (1) defines the power. Sub-section (2) provides extent of the procedure in aid of exercising the power. Sub-section (3) ensures implementation of the power through compliance of the procedure with the aid of the Municipality subject to such exercising of the power. Plain reading of section 426 shows that each of the sub-sections are inter dependant with each other. Sub-section (1) defines the power. Sub-section (2) provides extent of the procedure in aid of exercising the power. Sub-section (3) ensures implementation of the power through compliance of the procedure with the aid of the Municipality subject to such exercising of the power. ( 11 ) THE procedure and its compliance as provided in sub-section (2) and (3) respectively is meant for exercising the power defined in sub-section (1) and thus sub-section (2) and (3) cannot travel beyond the scope and ambit of sub-section (1 ). When the power under sub-section (1) (a) is exercised the provisions of sub-section (2) and (3) has to be confined within the power conferred under Clause (a) of sub-section (1 ). ( 12 ) CLAUSE (a) of sub-section (1) applies to inspection of immovable property owned, used of occupied by the Municipality or any work in progress under the direction of the Municipal authority. Now there are two parts in Clause (a ). First part relates to the immovable property owned, used or occupied by the Municipality. Second part relates to works under the direction of the Municipality. Clause (a) has to be read conjointly and not disjointly. The syntax of the sentence used for the expression does not permit disjoint reading. No. 'coma' is used in between the first part and second part. Thus the second part has to be read with reference to the first part. The expression 'work in progress under the direction of the Municipal authority' used in the second part is to be read with reference to the expresser 'immovable property owned, used or occupied by the Municipality'. Thus the 'work in progress' has relation with the 'immovable property owned, used or occupied by the Municipality'. Therefore, work in progress unrelated to the immovable property owned, used or occupied by the Municipality cannot be included within Clause (a ). ( 13 ) THE power under sub-section 1 (a) is one of supervisory nature. If an interpretation, as sought to be propounded by Mrs. Nandy and Mr. Dutta is to be accepted then the provision would become unworkable In as much as, in that event the Director would be flooded with all individual dispute, requiring the Director to perform the duty of the Municipality itself frustrating the purpose of the enactment. If an interpretation, as sought to be propounded by Mrs. Nandy and Mr. Dutta is to be accepted then the provision would become unworkable In as much as, in that event the Director would be flooded with all individual dispute, requiring the Director to perform the duty of the Municipality itself frustrating the purpose of the enactment. It is a very limited power as defined in Clause (a) and therefore has to be interpreted as such. An interpretation that renders the statute unworkable is to be avoided. When the clause itself defines the area it cannot be extended outside the same. Reading beyond would be legislation and not an interpretation, beyond the domain of the judiciary and would be an encroachment in the legislative field. ( 14 ) THUS the order dated 26th May, 2000 is wholly without jurisdiction. ( 15 ) THEN again the said order itself records that the Municipality has to take steps according to sub-rules (2) (3) and (4) of Rule 49 of the West Bengal Municipal (Building) Rules, 1996, and may consider the question for taking adequate and proper steps. At the same time, it had directed demolition of the building under Rule 31 sub-rule (1); Clause (iii) of the same Rules. The Municipality is being directed to take proper steps and on the other hand the Municipality is being directed to demolish the construction. Thus it is wholly beyond jurisdiction, for the simple reason first that section 426 does not confer any power on the Director to direct demolition. Secondly that section 426 does not empower the Director to usurp the jurisdiction of the Municipal Authority within the meaning of sections 218, 220 and 221 of the said Act or Rule 49 or Rule 31 of the said Rules as the case may be. ( 16 ) THAT apart in section 218 it is the Board of Councillors who are empowered to direct demolition and that too after following the procedure laid down therein. The power of the Chairman is confined to section 220 under which he can stop work and thus far and no further. The Director cannot ask the Chairman do something which law does not permit. Nowhere in the Act the power to direct demolition is conferred on the Director either. ( 17 ) IT is contended by Mrs. The power of the Chairman is confined to section 220 under which he can stop work and thus far and no further. The Director cannot ask the Chairman do something which law does not permit. Nowhere in the Act the power to direct demolition is conferred on the Director either. ( 17 ) IT is contended by Mrs. Nandi, learned counsel appearing for the petitioner, that the Municipality had already issued notice on the petitioner on account of deviation in the construction. It is also contended that the right to air and light of the private respondent with regard to his property has since been obstructed and that she had an actionable claim on account of deviation from the sanctioned plan, therefore, the Municipality should be directed to take proper steps. ( 18 ) NO doubt that certain obligation has been cast upon the Municipality with regard to such matter. If such notice is issued, the Municipality would be at liberty to proceed with the same, in accordance with law, as are permissible within the scope and ambit of the relevant provisions under the Act and the Rules. But then the Municipality cannot act as a rubber stamp simply on the basis of the direction of the Director which is wholly without jurisdiction. From the order dated 30th May, 2000, it appears that the Municipality had not applied its mind. It had really acted as rubber stamp. Thus accordingly the order was so issued by the Chairman. Whereas as observed earlier, the order for demolition in terms of section 218 can be passed only by the Board of Councillors. The power of the Chairman is confined under section 220 which empowers him only to issue direction to stop work. Thus the order dated 30th May, 2000 containing direction for demolition of the building or construction even if it is unauthorised, appears to be beyond jurisdiction of the Chairman and as such void on account of being without jurisdiction. ( 19 ) HOWEVER, in case the private respondent has any private right with regard to private thoroughfare in that event, the same can be thrashed out before the Civil Court. So far as the question of right, title and interest in immovable property is concerned, the same cannot be adjudicated upon by the municipality. ( 19 ) HOWEVER, in case the private respondent has any private right with regard to private thoroughfare in that event, the same can be thrashed out before the Civil Court. So far as the question of right, title and interest in immovable property is concerned, the same cannot be adjudicated upon by the municipality. Name of the Municipal Authority can purport to usurp the jurisdiction of the Civil Court in determining such question. If the private respondent has any such right, it is open to the private respondent to approach the Civil Court for obtaining proper relief. ( 20 ) AT the same time if the Municipality finds that there are some deviation from the sanctioned plan it is open to it to take steps. As contended by Mrs. Nandy that the Municipality had already issued notice, in that event, the Municipality may proceed with the said notice. It would be open to the Municipality, if necessary to resort the sections 220, 221 and 218 as the case may be. In case the Municipality decided to resort to any such provisions in that event, the Municipality may proceed in accordance with law following the provisions provided in the said three sections on the Rules, as the case may be. ( 21 ) IN the result, this petition succeeds and is allowed to the extent quashing the impugned orders dated 26th May, 2000 and 30th May, 2000 being annexure 'e'. However, this will not prevent the Municipality from proceeding in accordance with law in the light of the observation made above. It will also not prevent the private respondent from seeking his relief from the appropriate forum as he may be entitled to, in law. ( 22 ) THUS this writ petition is disposed of without any order as to costs. If an urgent xerox certified copy of this order is applied for the same is to be supplied to the applicant subject to compliance with all the required formalities. Petition disposed of.