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2000 DIGILAW 608 (CAL)

C. M. C. v. Abid Hossain

2000-12-05

Ashok Kumar Mathur, Barin Ghosh

body2000
JUDGMENT Barin Ghosh, J. Since the facts of these cases and the law applicable thereto are same or similar, we propose to dispose of them by this common judgment. 2. In all these appeals writ petitions filed by the respondent-writ petitioners succeeded wherein validity of section 400(8) of the Calcutta Municipal Corporation Act, 1980 had been challenged. 3. Before these writ petitions were decided, another writ petition was considered by an Hon'ble single Judge of this Court. In that writ petition also validity of the said section of the said Act was challenged. The Hon'ble Judge by the judgment and order dated 9th December, 1987 dismiss the said writ petition on the principal ground that the writ petition was filed on mere apprehension that an order has been passed under the provision of the said section but from the records as produced, it did not appear that any such order has in fact been passed. The Hon'ble Judge held that the writ petition as framed is not maintainable as the same is merely speculative. The Hon'ble Judge, however, on being pressed by the petitioner went in to the validity of the said section and held as follows: "I could not discover any infirmity in that provision. The power is an emergency power, to be exercised only under certain special circumstances. It is only the Mayor-in-Council who can exercise this power. Mayor-in-Council has been defined in section 8 of the Act. It consists of the Mayor, the Deputy Mayor and not more than 10 other elected members of the Corporation. Therefore, the power has been given not to an individual but to a responsible body of the Corporation and the power is to be exercised only if the Mayor-in-Council is of the opinion that immediate action is called for. In other words, it is an emergency power and to be exercised if it is found that a building is being constructed in contravention of the provisions of the Act, the reasons for taking emergency action must be recorded in writing and then only the order to demolish the building forthwith can be passed. The petitioner has referred to section 400(1) of the Act and contended that the power to demolish is already there. The petitioner has referred to section 400(1) of the Act and contended that the power to demolish is already there. If there is ordinary power to demolish in ordinary circumstances, I fail to see why vesting of emergency powers on the highest body of the Corporation should be ultra vires the Constitution. In course of argument an example was given to the petitioner that suppose some construction was started at the middle of the night on the Chowringhee Road, will the Corporation have to go through the entire process of giving a hearing as envisaged in the Act before any order is passed for demolishing the construction? Will not the people of Calcutta suffer indefinitely in that case? In that situation, emergency power must be exercised. Similarly if it is found that a building has been built on private land without any sanctioned plan and that immediate action is needed, in that event, this emergency power has to be exercised. There can be no doubt that to exercise the power under the section there must be some ground justifying the exercise of the emergency power." 4. The Hon'ble Judge then held that there is no reason to presume that emergency power will be abused and therefore refused to pass an order, as was prayed, directing the Corporation not to pass an order against the petitioner in exercise of power under the subject section. 5. In the writ petitions, being the subject matter of these appeals, the principal judgment was delivered on 19th January, 1990 by another learned Single Judge in the writ petition which was registered as Civil Order No. 17711 (W) of 1988. On the appeal preferred against the said order, which was originally registered as F.M.A.T. 367 of 1990 and thereafter as F.M.A. No. 269 of 1997, the Appellate Court granted stay of the operation of the said order of the learned Single Judge. Operative portion of the order reads as follows: "In the circumstances aforesaid, I hold that sub-section (8) of section 400 of the Calcutta Municipal Corporation Act, 1980 is inconsistent with and ultra vires to Articles 14, 21 and 300A of the Constitution of India. I further hold that sub-section (8) of section 400 is violative of sections 29 and 33 of the Calcutta Municipal Corporation Act, 1980. I further hold that sub-section (8) of section 400 is violative of sections 29 and 33 of the Calcutta Municipal Corporation Act, 1980. In such event sub-section (8) of section 400 of the Calcutta Municipal Corporation Act, 1980 is struck down." 6. In the judgment and order dated 19th December, 1990 the learned Single Judge considered section 400 of the said Act in its entirety and some other provisions of the said Act also and respective submissions of the parties as well as various judgments of various Courts and held, inter alia, as follows: (i) The power under section 400(8) is not a delegated power to the Mayor-in-Council but a power given to it by the Act itself and therefore it cannot be termed as executive power but a quasi judicial power; (ii) A comparative study of sections 400(1) to 400(7) and section 400(8) of the Act will lead to the clear conclusion that two sets of aforesaid provisions stand on separate footing altogether. Unauthorised construction is covered by sections 400(1) to 400(2), section 411 and section 413 of the Act; whereas section 400(8) is for immediate action to demolish and stands on totally different pedestral. Principles of natural justice is available under sections 400(1) to 400(7), section 411 and section 413 of the Act though the charge is that of unauthorized construction, but that is not available under section 400(8) of the Act and accordingly the same is arbitrary and contrary to the principles of natural justice; (iii) The decision, being the very basis of the power is not to be disclosed to the citizen likely to be effected, and accordingly the person would not know why his right to constructed property is being affected, which is protected by Article 300A of the Constitution; (iv) There is no guidance when and how two different methods shall be adopted for the one and the same group of persons and for the selfsame offence. There being no reasonable classification, the grant of power, which is discriminatory in nature must be held to be arbitrary; (v) If the power is exercised and carried into effect then there would be no evidence to ascertain whether the action of the citizen against which the power was exercised, was unauthorized or authorized; and (vi) The reason to grant this power to a separate and different authority, namely, the Mayor-in-Council, when the general authority, namely, the Municipal Commissioner is already vested with such power, was because of notorious large scale unauthorized construction and continuance of dangerous old buildings has no leg to stand as there are other provisions to take care of the same. 7. While referring to the earlier judgment mentioned above the Hon'ble Judge observed that the example, that some construction starts at mid-night on Chowringhee Road, is no example. It was observed that if such construction is made the Corporation is not so helpless. It was also added that in the earlier judgment this Court did not go in depth into the Constitutional validity of section 400(8). 8. In order to understand the issue at hand we must look at section 400 in its entirety and accordingly the same is set out hereunder: "400. It was also added that in the earlier judgment this Court did not go in depth into the Constitutional validity of section 400(8). 8. In order to understand the issue at hand we must look at section 400 in its entirety and accordingly the same is set out hereunder: "400. Order of demolition and stoppage of buildings and works in certain cases and appeal.-(l) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order: Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made: Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3). (2) The Municipal Commissioner may make an order under subsection (1), notwithstanding the fact that the assessment of such building has been made for the levy of the consolidated rate on lands and buildings. (2) The Municipal Commissioner may make an order under subsection (1), notwithstanding the fact that the assessment of such building has been made for the levy of the consolidated rate on lands and buildings. (3) Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415. (4) Where an appeal is preferred under sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, and for such period, as it may think fit: Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-section (1), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal. (5) Save as provided in this section, no Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section. (6) Every order made by the Municipal Building Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-section (1) shall be final and conclusive. (7) Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-section (1) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case my be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act. (8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith." 9. In order to understand the subject section one must take note of the fact that the same is part of Chapter XXII of the Act. This Chapter deals with buildings. Section 392 of the Act, which is also part of Chapter XXII of the Act, provides that no person shall erect or commence to erect any building or execute any of the works specified in section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of Chapter XXII of the Act and of the rules and the regulations made under the Act in relation to such erection of building or execution of work. By section 390 of the Act the expression "to erect a building" has been defined. That definition is of widest amplitude. As an example even to close permanently any door or window in any external wall has been brought within the meaning of the expression" to erect a building" section 393 of the Act requires every person who intends to erect a building to apply for sanction. It goes without seeing that an activity in relation to erection of a building by a person shall remain in the confinement of the land belonging to such person or upon a land upon which such person is entitled or authorized to erect a building. The sanction to erect a building is to be granted by the Municipal Commissioner. If the Municipal Commissioner is authorise to give sanction, he is also obliged to supervise whether the building is being erected in accordance with the sanction. In those circumstances by sub-section (1) of section 400 of the Act power has been given to the Municipal Commissioner to direct a person at whose instance an erection has been or is being made to demolish the same in the event the same is either without or contrary to the sanction. This direction, however, cannot be given without giving an opportunity of hearing to the person concerned. This direction, however, cannot be given without giving an opportunity of hearing to the person concerned. While an opportunity of hearing is being given, so that the erection without or contrary to the sanction does not continue any further, the Municipal Commissioner has been empowered to direct such person to stop the work of erection. It, therefore, shows that if it appears to the Municipal Commissioner that a person is erecting a building or has made an erection without sanction or contrary to the sanction, he may upon hearing the person responsible for making such erection, direct demolition of such erection and in the meantime direct stoppage of further erection. The principles of natural justice, therefore, is ingrained in sub-section (1) of section 400 of the Act. Sub-section (2) of the said section shows that such an order may be passed by the Municipal Commissioner even after the building has been completed and assessed for municipal tax. Sub-section (3) of section 400 of the Act grants a right to the person aggrieved to prefer an appeal. Sub-section (4) of section 400 of the Act empowers the Appellate Authority to stay the execution of the order of the Municipal Commissioner under certain circumstances until the appeal has been heard and decided. Sub-section (5) of section 400 of the Act restrains the Courts, principally Civil Courts, from taking any action against the order passed by the Municipal Commissioner in terms of the provisions contained in sub-section (1) of section 400 of the Act and from restraining him in taking any action or making any order in terms thereof. Sub-section (6) of section 400 of the Act makes the order of the Municipal Commissioner or the order of the Appellate Authority, as the case may be, final and conclusive. Since the power is to direct the person to carry out demolition of the erection made by him without or contrary to the sanction, but if despite such direction given by the Municipal Commissioner and confirmed by the Appellate Authority, the person does not effect demolition then what would happen? Sub-section (7) of section 400 of the Act takes care of that situation. Sub-section (7) of section 400 of the Act takes care of that situation. Therefore, if a person is making an erection, upon his land or upon a land on which he is authorized to make erection, without a sanction or contrary to the sanction, then to ascertain whether such erection is without a sanction or contrary to the sanction, after the Municipal Commissioner has formed a preliminary opinion that the same is either without a sanction or contrary to the sanction, the matter must be thrashed out by the Municipal Commissioner himself after giving the person concerned an opportunity of hearing. The decision so to be arrived at may be tested in appeal. While, however, under sub-section (8) of section 400 of the Act the Municipal Commissioner has no role to play at all. In terms of the provisions contained in the said sub-section if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of the Act, the Mayor-in-Council for reasons to be recorded in writing may cause such building or work to be demolished forthwith. This sub-section starts with the words "notwithstanding anything contained in this Chapter." If erection of a building is completed or carried on without a sanctioned plan or contrary to the sanctioned plan, that would be in contravention of the provisions of the Act. Therefore, while a person has erected or is erecting a building without a sanctioned plan and the Municipal Commissioner has taken action under sub-section (1) of section 400 of the Act, but the same has not reached finality yet, if the Mayor-in-Council is of the opinion that immediate action is called for, it may for reasons to be recorded in writing cause such building or work to be demolished forthwith. Principally for this reason the learned Single Judge has struck down sub-section (8) of section 400 of the Act. 10. There is no hard and fast rule that if a power is granted by the statute, the same must be deemed to be a quasi-judicial power. In order to see whether the power is in fact a quasi-judicial power or a pure and simple administrative power, one must look at the language used while granting the power. 10. There is no hard and fast rule that if a power is granted by the statute, the same must be deemed to be a quasi-judicial power. In order to see whether the power is in fact a quasi-judicial power or a pure and simple administrative power, one must look at the language used while granting the power. In the instant case if the language of the statute is looked at, it would be evidenced that the power granted is a quashi-judicial power as the person exercising the power has been called upon to record the reasons in writing while exercising the power so vested. It is not necessary that every quashi-judicial power must be exercised upon giving an opportunity of hearing to the person likely to be affected by reason of exercise of such power, unless, of course, exercise of such power would affect any civil right or liberty vested in the person to be affected by exercise of such power. 11. The fact that no such hearing is called for, makes it clear that the reasons recorded must establish that immediate action is called for. That immediate action is called for must be based on subjective opinion. In India subjective consideration is justiciable. The user of the power is called for to stop contravention of the provisions of the Act. The same must, therefore, be based on objective consideration. There can be no doubt that objective consideration is also justiciable. If it is found that the opinion so expressed while exercising the power was wrong, what remedy would be available to the person affected? Two questions have been raised by the learned Single Judge on this aspect. One is, evidence will not be available and the other is, right to property would be affected in such a manner that payment of compensation as provided in section 567 of the Act would not be adequate. In case the erection is without any sanction then neither the question of evidence comes, nor the question of compensation arises. If, however, the erection is in deviation to the sanctioned plan then both the questions may crop up. It may be urged that the deviation as alleged has not substance at all. By the time the judicial post-mortem would be made, the demolition has already taken place. It would be difficult to establish that there was no deviation at all. If, however, the erection is in deviation to the sanctioned plan then both the questions may crop up. It may be urged that the deviation as alleged has not substance at all. By the time the judicial post-mortem would be made, the demolition has already taken place. It would be difficult to establish that there was no deviation at all. In such case it may also be a contention that while effecting demolition, the demolition has been effected in such a manner that the erection made in accordance with the sanction has also been damaged. The power has been granted to demolish an erection either completed or in the process of completion which is in contravention of the provision of the Act. Because an erection is being made contrary to the sanciton if the entire erection including the erection made in accordance with the sanction is demolished, then such an exercise of power would be ultra vires and the person affected by such exercise of power can be properly compensated. The demolition, therefore, must remain confined to such erection which contravenes the sanction or other provisions of the Act. Therefore, there is no necessity of keeping the erected building or the work intact as a piece of evidence of show that a part of the building is in contravention of the provisions of the Act. 12. It is true that right to property is recognized as a right of a citizen in the Constitution itself. A citizen may be deprived of such right only by the authority of Law. This right to property cannot be construed in abstract. A building erected by a person, who owns the land or who is authorized to erect a building on a piece of land, has a right to property in the building erected on such land. If a person erects a building on a land which belongs to the public, he has no right to property in the building. Similarly the building must be erected in accordance with the sanction. If a building has been erected without sanction, such erection being an illegal erection, no right to property flows therefrom. If a person erects a building on a land which belongs to the public, he has no right to property in the building. Similarly the building must be erected in accordance with the sanction. If a building has been erected without sanction, such erection being an illegal erection, no right to property flows therefrom. Similarly a person, who is authorized to erect a building in accordance with sanction, erects a building in excess of the sanction or contrary to the sanction, to the extent the erection is beyond sanction or contrary to sanciton, the person concerned cannot be said to have any right to property therein. By sub-section (8) of section 400 of the Act, power has been vested to demolish only such portion of the erection in which there is no right to property. The demolition of a dilapidated building or a part thereof is not at all comparable with demolition of an unauthorized erection. In the case of demolition of a dilapidated building or a part thereof, but not an unauthorized building, the right to property is affected. The right to property in such a dilapidated building can be taken away having regard to public safety. Appropriate provisions therefore have been made in the Act itself. In the instant case we are considering totally unauthorized erection for the same is either without sanction or in contravention or contrary to or in deviation of sanction. There is no right to property in such erection. 13. It is true in case of erection without sanciton' or contrary to the sanciton or in deviation thereof, action may be taken to demolish the same by following the elaborate procedure of giving notice, hearing the person concerned and then by passing the final order, which is appealable, but at the same time without hearing the person, without giving him an opportunity to put forward his case, such erection or portion thereof may be demolished. Although the powers are drastic powers but in the first case there is satisfaction of the person concerned that his case has been heard and his points of view have been taken note of before exercising such drastic power, but in the latter case he does not know where he has gone wrong but suddenly realize that somebody in the Corporation has decided that he has gone wrong and implemented such decision by pulling down the erection without giving an opportunity of hearing to him. In similar type of cases power may be exercised in two different ways to achieve the self-same object, one is though harsh, the other is even more harsher and there is no guideline as to in what circumstances power has to be exercised in two different manners. Accordingly vesting of this power is arbitrary. This argument seems to have attracted the learned Single Judge. This aspect of the matter was dealt with by another Single Judge by giving an example of an erection being made on a public thoroughfare, like Esplanade. In the judgment impugned the learned Single Judge has observed that if such a situation takes place, for that Municipal Corporation need not take shelter under sub-section (8) of section 400 of the Act, but has not indicated under what other provision of the Act the situation can be controlled? If an unauthorized erection is made at a public place affecting public convenience by persons immediately unknown what the Corporation would do? If it appears that an erection is being made without sanction on a land owned by the person, who is making the erection, thereby causing public inconvenience, and notice has been given to stop such erection, but the person concerned does not stop such erection, would it be proper for the Corporation to remain a mute spectator? In the normal circumstances such stop-work order is enforced by the Police, but then the Police Personnel are not under the control of the Corporation. Therefore, if by reason of either the connivance of the Police Personnel or taking advantage of their carelessness or ineffectiveness, the person concerned refuses to comply with the stop-work order, would the Corporation remain an idle spectator? In order to exercise the power the person exercising the power must subjectively determine that the exercise of power is of immediate necessity. Therefore, if by reason of either the connivance of the Police Personnel or taking advantage of their carelessness or ineffectiveness, the person concerned refuses to comply with the stop-work order, would the Corporation remain an idle spectator? In order to exercise the power the person exercising the power must subjectively determine that the exercise of power is of immediate necessity. Therefore, in the section itself enough guidelines have been given as to when extraordinary power has to be exercised under sub-section (8) of section 400 of the Act either in lieu of exercise of power under sub-sections (1) to (7) of section 400 of the Act or in addition thereto. The purpose and object of exercise of power in both the situations are one and the same, to prevent contravention of the provisions of the Act in relation to a building or a work being carried on. The extraordinary power has not been granted to the Municipal Commissioner. The same has been granted to the Mayor-in-Council which is the second highest body entrusted to carry out the duties of the Corporation. That itself is a safe-guard. And in any event if this safety valve does not save the person in question, as aforesaid, the person may be compensated adequately. Sub-section (8) of section 400 therefore, cannot be struck down on the ground that conferment of such power is arbitrary. In a given case, however, it may be shown that user of such power was not proper and power under sub-section (1) of section 400 ought to have been used. In such circumstances too the person affected may be adequately compensated. 14. As pointed above, conceptually it is not conceivable that a citizen in India has personal liberty to make an unauthorized construction. In that view of the matter, it cannot be said that sub-section (8) of section 400 of the Act is violative of Article 21 of the Constitution. 15. Sub-sections (k) and (I) of section 29 make it obligatory upon the Corporation to control building operations and to regulate the under-ground building operations. In that view of the matter, a building can only be constructed within the jurisdiction of the Calcutta Corporation upon obtaining sanction thereof from the Corporation. If no such sanction is granted, but building is constructed, such a construction would be unauthorized. In that view of the matter, a building can only be constructed within the jurisdiction of the Calcutta Corporation upon obtaining sanction thereof from the Corporation. If no such sanction is granted, but building is constructed, such a construction would be unauthorized. We, therefore, see no reason to hold that sub-section (8) of section 400 of the Act is violative of section 29 of the Act. 16. Section 33 of the Act provides that subject to the provisions of the Act and the rules and regulations made thereunder, the executive power of the Corporation shall be exercised by the Mayor-in-Council and all executive actions of the Mayor-in-council shall be expressed to be taken in the name of the Corporation. In the view of the matter, the Mayor-in-Council is the second highest body in the Corporation. The obligatory functions of the Corporation are to be discharged by the Mayor-in-Council. The Mayor-in-Council has been authorized to take the actions under sub-section (8) of section 400 of the Act. We, therefore, find no reason to hold that sub-section (8) of section 400 of the Act is violative of section 33 of the Act. 17. But for the fact that unscrupulous people have started raising unlawful erections in violation of rules and regulations of the Corporations affecting public interest and causing safety problems for the occupiers of such erection and neighbouring erections as has been judicially noted by the Supreme Court in Prative Co-operative Housing Society vs. State of Maharashtra, reported in AIR 1991 SC 1453 , there was no reason of conferring this drastic power. The power has been conferred to remove social evils. 18. We, therefore, allow the appeals, set aside the judgments and orders under appeals and uphold the validity of sub-section (8) of section 400 of the Act. 19. There shall be no order as to costs. Appeal allowed.