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2007 DIGILAW 768 (CAL)

Sunil Chandra Dey v. STATE OF WEST BENGAL

2007-10-01

DIPANKAR DATTA

body2007
Judgment :- (1) THESE writ petitions have been heard separately but since common questions of law are involved, this Court proposes to dispose of the same by this common judgment. (2) FOR the sake of clarity, the six first named petitioners shall be referred to by their respective names. (3) IT is the common grievance of all the petitioners that without taking recourse to any proceeding under Section 400 (1) of the Kolkata Municipal corporation Act, 1980 (hereafter the Act), the Kolkata Municipal corporation (hereafter the Corporation) authorities have proceeded to demolish alleged unauthorised constructions by taking recourse to Section 400 (8) thereof and that since circumstances do not warrant taking recourse thereto, the Corporation ought to be restrained from demolishing any part of the unauthorised constructions raised by them, if at all, and it ought to be directed to initiate proceeding under Section 400 (1) in order to enable them persuade the competent authority to allow retention of alleged unauthorised construction upon realization of penalty. (4) IT is the allegation against Sunil Chandra Dey (hereafter Sunil)that he has raised a multistoried building (G+4) without obtaining a plan duly sanctioned by the Corporation. This position is admitted by Mr. Bihani, learned Senior Counsel for Sunil. (5) THE allegation against Subrata Mukherjee (hereafter Subrata) is that construction has been made by him encroaching the mandatory open space without obtaining any sanction from the Corporation. Learned counsel for Subrata has disputed the allegation of the Corporation. However, it appears from the petition that Subratas son had prayed for condonation if any binding rule of the Building Rules has been violated in the process of making construction in the premises concerned. (6) IT has been alleged against Koel that it has raised certain construction in deviation from the plan sanctioned by the Corporation. Such position has not been disputed by learned Counsel for Koel. (7) THE allegation against Sk. Manawar Hossain (hereafter Manawar)is that he has constructed the 4th and 5th storeys on the existing three storied building without any sanction and that despite a stop work notice having been issued under Section 400 (1) of the Act, he continued to carry on construction without paying heed to such notice. (8) THE allegation against Kalpana Dam (hereafter Kalpana) appears to be similar to Manawar. (8) THE allegation against Kalpana Dam (hereafter Kalpana) appears to be similar to Manawar. (9) THE allegation against M/s. Sursi Exim Private Limited (hereafter sursi) is that it has started construction of brick walls in the ground floor of premises No. 169/1, Motilal Nehru Road, Kolkata without any sanction with the intention of converting the sanctioned car parking space for commercial purposes. (10) ON the factual aspect of the case pertaining to Sunil, Mr. Bihani, learned Senior Counsel submitted that Sunil is a displaced person from east Pakistan (Bangladesh) in whose favour the Refugee Rehabilitation directorate, Government of West Bengal had allotted a plot in the Jodhpur quarter Colony, Police Station Lake, District South 24Parganas vide a memo dated 9. 6. 1994. In terms of the letter of allotment, Sunil was required to start erection of a building on the plot within three months from receipt of the said memo, failing which the allotment would be considered as cancelled. A writ petition was filed before this Court questioning such allotment and owing to an interim order passed thereon, Sunil was restrained from raising construction. The writ petition succeeded. Sunil was not a party to the writ petition. However, the writ petition was allowed. He sought leave of the Division Bench to prefer appeal and on obtaining such leave the appeal preferred by him was heard and allowed by the judgment dated 20. 6. 06. Since the allotment letter revived on the appeal being allowed by the Division Bench, Sunil had only three months time to start erection and, therefore, without making any application for sanction of a building plan, he started raising construction. It is his submission that Sunil had to resort to raising construction since the building plan, even if applied for, would not have been sanctioned within three months. (11) MR. Bihani submitted that the power under Section 400 (8) of the said Act is to be used sparingly and only in a case where the appropriate authority of the Corporation forms an opinion, on the basis of objective consideration of the materials placed before it, that immediate action is called for. (11) MR. Bihani submitted that the power under Section 400 (8) of the said Act is to be used sparingly and only in a case where the appropriate authority of the Corporation forms an opinion, on the basis of objective consideration of the materials placed before it, that immediate action is called for. There being no materials on the basis of which an opinion could be formed for immediate demolition of the construction raised by Sunil, he urged this Court to set aside any decision taken by the Corporation to effect demolition in terms of order passed by it under Section 400 (8) of the Act and to direct the Corporation to take recourse to Section 400 (1)thereof for enabling Sunil to satisfy the Municipal Commissioner that the construction so raised by him does not contravene any mandatory provisions of the Building Rules or other provisions of the said Act, except that the construction of the building had been commenced and carried on without a valid sanction, and if such satisfaction is reached by the Municipal commissioner, the structure may be allowed to be retained after regularizing it by way of imposition of penalty. (12) BY referring to the word immediate used in Section 400 (1) of the said Act, he submitted that action in terms thereof is warranted only in cases of imminent danger and not to all and sundry cases. He referred to administrative Law, a Casebook by Barnard Schwartz (3rd Edition) to contend that unless there be an actual emergency, summary action would not be justified. He also referred to the provisions of Section 413a of the Act to buttress his contention that statutory provisions contained therein contemplate regularization of buildings erected by persons displaced from East Pakistan (now Bangladesh) or by successors in interest on lands occupied by such persons which have been completed before commencement of the Kolkata municipal Corporation (Amendment) Act, 1996. He also contended that in the squarters colony there are other unauthorised constructions raised by other allottees who have not been proceeded against and the Corporation has adopted a pick and choose policy in initiating action against Sunil by invoking Section 400 (8) of the Act. (13) MR. He also contended that in the squarters colony there are other unauthorised constructions raised by other allottees who have not been proceeded against and the Corporation has adopted a pick and choose policy in initiating action against Sunil by invoking Section 400 (8) of the Act. (13) MR. Banerjee, learned Counsel for Kalpana invited the attention of this Court to the provisions contained in Section 402 of the Act and contended that ample power has been given to the Municipal commissioner to direct alteration of work in respect of contravention mentioned therein and, therefore, action under Section 400 (8) thereof is absolutely unwarranted. (14) MR. Chatterjee, learned Senior Counsel appearing for Subrata, advanced arguments on the question of law involved in his petition which being similar to the one raised by Mr. Bihani are not repeated. (15) BE it recorded that for the same reason, the arguments of learned counsel for the other sets of petitioners and learned Counsel for Koel are not referred to in detail except that he relied on the decision of the Apex court reported in AIR 1989 SC 860 , M/s, Rajatha Enterprises v. S. K. Sharma in support of his contention that if by the impugned unauthorized construction neither public safety is endangered nor public or section thereof is inconvenienced, direction for demolition is not tenable. (16) MR. Aloke Kumar Ghosh, learned Counsel for the Corporation opposed the writ petition of Sunil. He submitted that after it was detected that Sunil had been raising construction without a plan having been sanctioned, a stop work notice under Section 401 of the Act was issued; yet, Sunil did not care to adhere to the same and continued with the unauthorised construction. The premises in question was inspected by the concerned Assistant Engineer of the Corporation and, thereafter, on the basis of the report prepared by him and the departmental note recommending demolition of the unauthorised construction under section 400 (8) of the said Act, all these documents were placed before the Mayor-in-Council. It resolved in the meeting held on 4. 5. 07 to demolish the unauthorised building forthwith under Section 400 (8) of the Act. He further submitted that the object of the Act is to prevent any construction being raised without plan sanctioned by the Corporation and in contravention of the Building Rules. It resolved in the meeting held on 4. 5. 07 to demolish the unauthorised building forthwith under Section 400 (8) of the Act. He further submitted that the object of the Act is to prevent any construction being raised without plan sanctioned by the Corporation and in contravention of the Building Rules. According to him if any person disobeys the notice under Section 401 of the Act and takes law in his own hands, stern action has to be taken for sending a message to the public at large to desist from raising unauthorized construction or else, the object of the Act would be frustrated. He contended that since construction has been raised by Sunil admittedly without any plan sanctioned by the corporation, issuance of show-cause notice and affording him opportunity of hearing as is contemplated under Section 400 (1) of the Act would be a useless formality. Also, since Sunil had already raised a structure being a multistoried building without any plan, question of retention of the same upon payment of penalty does not and cannot arise. In support of his submission that administrative decision to demolish unauthorized construction ought not to be interfered by the Court, Mr. Ghosh relied on the decision of the Apex Court reported in AIR 1991 SC 1453 , Pratibha co-operative Housing Society Limited v. State of Maharashtra and 2004 (8) SCC 733 , Friends Colony Development Committee v. State of Orissa. He also relied on the Division Bench of this Court reported in 2001 (1)CHN 5, Calcutta Municipal Corporation v. Abid Hossain wherein the validity of Section 400 (8) of the said Act has been upheld. He, accordingly, prayed for dismissal of the writ petition. (17) LEARNED Counsel representing the Corporation in the other writ petitions opposed the petitions and advanced arguments similar to the argument advanced by Mr. Ghosh. On being directed, they placed before this Court the relevant records of the Corporation pertaining to the respective cases of unauthorized construction raised by the petitioners. (18) BEFORE adverting to the rival submissions of learned Counsel for the respective parties, this Court considers it appropriate to reproduce herein below the respective agenda for the Mayor-in-Council meeting dated 4. 5. 07 in respect of unauthorised construction raised by Sunil, Subrata and Koel, and the agenda dated 20. 4. 07, 18. 5. 07 and 8. 6. (18) BEFORE adverting to the rival submissions of learned Counsel for the respective parties, this Court considers it appropriate to reproduce herein below the respective agenda for the Mayor-in-Council meeting dated 4. 5. 07 in respect of unauthorised construction raised by Sunil, Subrata and Koel, and the agenda dated 20. 4. 07, 18. 5. 07 and 8. 6. 07 in respect of unauthorized construction raised by Manawar, Sursi and Kalpana respectively together with the decisions of the Mayor-in-Council. Sunil Agenda for the mayor-in-Council Meeting Outside agenda: ??????????????????????????? Dated: 04. 05. 07 Re : Unauthorised construction at the premises Nos. 24 & 25, Jodhpur Colony, Wd. 93. Br. X This premises under reference was inspected by the department and found that construction of 4 (four) storied R. C. C. framed structure building has been constructed without having any sanction plan in respect of the above premises. Notice under Section 401 of K. M. C. Act, 1980 has been served on 14. 10. 06 & 13. 11. 06 and Municipal Guard Watch was posted on along with round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion Fire hazards and environmental hazards. Moreover the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure forthwith under Section 400 (8) of the C. M. C. Act, 1980. The matter is placed before M. I. C. meeting for approval. Sd /- ?????????????????????????????????????? Sd /- Municipal commissioner ???????????????????? Member, m. I. C. (Building) Resolved in the MIC dated 04. 05. 2006 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act ,1980. Sd /- Mayor Subrata Agenda for the mayor-in-Council Meeting Outside agenda: ???????????????????????????????? Dated: 04. 05. 07 Re : Unauthorised construction at the premises No. 41f, S. P. Mukherjee Road , Ward No. 72, Br. 2006 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act ,1980. Sd /- Mayor Subrata Agenda for the mayor-in-Council Meeting Outside agenda: ???????????????????????????????? Dated: 04. 05. 07 Re : Unauthorised construction at the premises No. 41f, S. P. Mukherjee Road , Ward No. 72, Br. VIII This premises under reference was inspected by the department and found that construction of single storied structure encroaching mandatory open space has been made without having any sanction plan in respect of the above premises to an existing partly two to partly three storied building. Notice under Section 401 of K. M. C. Act, 1980 has been served on 15. 03. 07 and Municipal guard Watch was posted on 28. 03. 07 along with Round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure forthwith under Section 400 (8) of the C. M. C. Act, 1980. The matter is placed before M. I. C. meeting for approval. Sd /- ??????????? ??????????????? ???? Sd /- Dy . C. E. (Building) ??????????? ???? Director General (Building) Sd /- ???????????????????????????????? Sd /- Municipal commissioner ?????????????? Member, M. I. C. (Building) Resolved in the MIC dated 04. 05. 2006 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act, 1980. Sd /- Mayor Koel Agenda for the mayor-in-Council Meeting Outside agenda: ??????????????????????????? Dated: 04. 05. 07 Re : Unauthorised construction at the premises No. 88a, Sarat Bose Road , Wd. 69. Br. VIII This premises under reference was inspected by the department and found that construction at ground floor by converting sanctioned car parking space into commercial space has been made without having any sanction plan. Notice under Section 401 of K. M. C. Act, 1980 has been served on 21. 12. 69. Br. VIII This premises under reference was inspected by the department and found that construction at ground floor by converting sanctioned car parking space into commercial space has been made without having any sanction plan. Notice under Section 401 of K. M. C. Act, 1980 has been served on 21. 12. 06 and Municipal guard Watch was posted on 21. 12. 06 along with Round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure forthwith under Section 400 (8) of the C. M. C. Act, 1980. The matter is placed before M. I. C. meeting for approval. Sd /- ?????????????????????????????????????? Sd /- Dy . C. E. (Building) ?????????????????????? Director general (Building) Sd /- ?????????????????????????????????????? Sd /- Municipal commissioner ???????????????????? Member, m. I. C. (Building) Resolved in the MIC dated 04. 05. 2006 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act, 1980. Sd /- Mayor Manawar Agenda for the Mayor-in-Council Meeting Outside agenda: ???????????????????????????????? Dated: 20. 04. 07 Re : Unauthorised construction at the premises No. 140/2, Karaya Road, Ward. 64, Br. This premises under reference was inspected by the department and found that construction at 4th storey building at the above premises is in progress without having any sanction plan in respect of above premises. Notice under Section 401 of K. M. C. Act, 1980 has been served on 17. 11. 06 and posting of Municipal Guard Watch on 17. 11. 06 along with requisition for round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure at 4th storey forthwith under section 400 (8) of the C. M. C. Act, 1980. The matter is placed before M. I. C. meeting for approval. Area of unauthorised construction is 112. 0. 0 Sqm. Sd /- ?????????????????????? Sd /- ?????????????????????? Sd /- E. E. (Civil)/bldg. ??????? Dy. C. E. (Bldg.) ????????? Director general (Bldg.) Sd /- ???????????????????????????????????????????????? Sd /- Municipal Commissioner ?????????????????????????????? Member, M. I. C. (Bldg.) Resolved in the MIC dated 20. 04. 07 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act, 1980. Sd /- Mayor Kalpana Agenda for the mayor-in-Council Meeting Outside agenda: ???????????????????????????????? Dated: 08. 06. 07 Re : Unauthorised construction at the premises No. 14a, Picnic Garden 3rd Lane , Wd. 66, Br. VII This premises under reference was inspected by the department and found that unauthorised construction of R. C. C. framed structure building at 3rd & 4th storey has been made without having any sanction plan. Notice under Section 401 of K. M. C. Act, 1980 has been served on 16. 12. 06 and Municipal guard Watch was posted on 16. 12. 06 along with Round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure forthwith under Section 400 (8) of the C. M. C. Act, 1980. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised structure forthwith under Section 400 (8) of the C. M. C. Act, 1980. The approximate area of unauthorized construction is 101. 25 Sqm. per floor. The matter is placed before M. I. C. meeting for approval. Sd /- ??????????????????????????????????????????? Sd /- Dy . C. E. (Building) ??????????????????????????? Director general (Building) Sd /- ??????????????????????????????????????????? Sd /- Municipal commissioner ????????????????????????? Member, m. I. C. (Building) Resolved in the MIC dated 08. 06. 2007 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act, 1980. Sd /- Mayor Sursi Agenda for the mayor-in-Council Meeting Outside agenda: ???????????????????????????????? Dated: 18. 05. 07 Re: Unauthorised construction at the Premises No. 169/1, Motilal Nehru Road , ward. 85, Br. VIII This premises under reference was inspected by the department and found that construction of masonry walls in ground floor is in progress without having any sanction plan for conversion of sanctioned cover car parking space into commercial space in respect of above premises. Notice under Section 401 of K. M. C. Act, 1980 has been served on along with round-the-Clock-Police posting. Person Responsible is proceeding with the construction without paying heed to the departmental actions. The premises is situated in a congested area. The construction, if allowed to stand will create several hazards like Traffic congestion, Fire hazards and environmental hazards. Moreover, the construction has been done in a haphazard manner without following the norms & practice of Civil Engineering. Structural stability of the impugned construction is doubtful. Considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general, Department recommends demolition of unauthorised masonry walls at ground floor forthwith under section 400 (8) of the C. M. C. Act, 1980. The matter is placed before M. I. C. meeting for approval. Sd /- ??????????????????????????????????????????? Sd /- Dy . C. E. (Building) ??????????????????????????? Director general (Building) Sd /- ??????????????????????????????????????????? Sd /- Municipal commissioner ????????????????????????? Member, m. I. C. (Building) Resolved in the MIC dated 18. 05. The matter is placed before M. I. C. meeting for approval. Sd /- ??????????????????????????????????????????? Sd /- Dy . C. E. (Building) ??????????????????????????? Director general (Building) Sd /- ??????????????????????????????????????????? Sd /- Municipal commissioner ????????????????????????? Member, m. I. C. (Building) Resolved in the MIC dated 18. 05. 07 Considering the facts stated above, it is resolved that the unauthorised building be demolished forthwith under Section 400 (8) of K. M. C. Act,1980. Sd /- Mayor (19) HAVING heard learned Counsel for the parties and considering the materials placed before this Court, it is of the considered view that the only point that arises for determination in these petitions is whether the process of decision making adopted by the Mayor-in-Council culminating in decisions directing that action be taken under Section 400 (8) of the Act against the several petitioners is the outcome of proper and valid exercise of power or not. (20) INTENTION of the legislature to secure public safety, security and convenience by conferring power on the Corporation to take emergent action overriding private interest is inbuilt in Section 400 (8) of the said act. The Mayor-in-Council is the repository of drastic power to direct demolition of a building or work which has been erected/commenced contravening the provisions of the Act, forthwith, without granting any opportunity of hearing to the person to be affected thereby, if in its opinion immediate action is called for. These are the two factors which must exist before an order can be passed under Section 400 (8). The only safeguard the concerned statute provides to the person to be affected is that the mayor-in-Council must record reasons in writing for directing such demolition of building or work forthwith. Obviously, the reasons must be valid and germane and not fanciful and arbitrary, and must establish that immediate action is called for. (21) THERE cannot be any exhaustive enumeration of situations/ incidents in respect whereof an "immediate action" may necessarily be called for. However, it seems to be beyond any controversy that if any construction is made without the authority of law and that would hinder public interest if allowed to remain, definitely recourse to Section 400 (8)of the Act would be justified instead of initiating action under Section 400 (1)thereof. These would include constructions which impede public convenience and/or endanger public safety and security. These would include constructions which impede public convenience and/or endanger public safety and security. In such cases, urgent action has to be taken to sub-serve and safeguard public interest and the right of a pre-decisional hearing, of the person responsible for raising the impugned construction must necessarily and inevitably succumb to overwhelming public interest considerations. (22) THE contentions of Mr. Bihani and Mr. Banerjee that even if a construction is raised without a building plan, action in respect thereof can be taken under Section 400 (1) of the Act or Section 402 thereof and consequently action under Section 400 (8) would be unwarranted is misconceived. In the decision of the Division Bench of this Court reported in 2004 (2) CLJ 146, Smt. Manoj Devi v. Municipal Commissioner, C. M. C. , it has been held "thai action under Section 400 (8) can be taken if there are grounds satisfying the conditions of sub-section (1) of Section 400 and that too only after complying with the provisions contained therein. " mr. Bihani having admitted that Sunil has erected the concerned building without obtaining the sanction of the Corporation, there is ground for proceeding against him under Section 400 (1) and hence in view of the law laid down in Manoj Devi (supra), action under Section 400 (8) cannot be faulted. Besides this, Section 400 (8) by itself is an overriding provision. It permits action being taken notwithstanding any other provision contained in the Act. Erection of building or commencement of work without sanction of a plan is a contravention of the provisions of the Act. Therefore, in an appropriate case, the Mayor-in-Council would definitely be justified in exercising power thereunder notwithstanding the fact that action could have also been taken under Section 400 (1) or under Section 402. (23) THE further contention of Mr. Bihani regarding applicability of section 413a of the Act vis-a-vis the building erected by Sunil does not impress this Court at all. Admittedly, the erection of the building having commenced after the order of the Division Bench dated 20. 6. 06, the said provision cannot come to the aid of Sunil. This Court is also not impressed with the submission that the building constructed by Sunil in view of the protracted litigation and the stipulation in the order of allotment deserved a different treatment. 6. 06, the said provision cannot come to the aid of Sunil. This Court is also not impressed with the submission that the building constructed by Sunil in view of the protracted litigation and the stipulation in the order of allotment deserved a different treatment. Whatever be the position on facts, Sunil had no licence to commence construction without a building plan duly sanctioned by the Corporation. That he did not adhere to the stop work notice and completed a multi-storied building with impunity is demonstrative of his "dont care" attitude. Sunil has also suffered an order passed by the Special officer (Building) of the Corporation under Section 400 (1) in respect of a portion of the unauthorised construction raised by him and enjoys no protection in respect thereof from the appropriate Tribunal/court. On the basis of the facts presented, Sunil is not entitled to any preferential treatment. (24) MR. Bihanis contention that there are other constructions in the locale against which no action has been taken by the Corporation and that Sunil has been victimised has been raised to be rejected. In action of the Corporation to take action against other offenders cannot come to the aid of Sunil, for, one illegality cannot be cured by another illegality. (25) THE other contention of Mr. Bihani that the Mayor-in-Councils formation of opinion under Section 400 (8) must be based on objective consideration, however, merits consideration. Formation of opinion by the mayor-in-Council that immediate action is called for in terms of the statutory mandate must be supported by reasons. This would necessarily and indisputably involve a process of objective consideration of facts particularly when the decision on being implemented would have the effect of civil consequences. Reference in this connection may be made to the decision of the Apex Court reported in 2007 (2) SCC 181 : Rajesh Kumar v. Deputy Commissioner of Income Tax. In the Division Bench decision in abid Hossain (supra), it has been held that "that immediate action is called for must be based on subjective opinion" but that subjective consideration in India is justiciable. At the same time, it has been held "that the user of the power is called for to stop contravention of the provisions of the Act" and "the same must, therefore, be based on objective consideration", which is also justiciable. At the same time, it has been held "that the user of the power is called for to stop contravention of the provisions of the Act" and "the same must, therefore, be based on objective consideration", which is also justiciable. Although in view of the decision in Abid Hossain (supra)the opinion formed may involve to some extent an element of subjectivity on the basis of the materials placed before it which must be based on objective consideration, the "materials" assume great significance and it is obligatory for the Mayor-in-Council to attach due and proportionate weight to it. (26) EXERCISE of power under Section 400 (8) cannot be arbitrary or capricious but must satisfy the test of reasonableness. One of the reasons for which the validity of Section 400 (8) was upheld by the Division Bench appears to be that since power thereunder is exercisable by the Mayor-in-Council, being the second highest body entrusted to carry out the duties of the Corporation, that itself is a safeguard. Although Courts should not normally interfere with matters relating to public safety and security since it is within the domain of the administrative authorities and they are best suited to assess the situation and handle it depending upon the peculiar needs and necessities within their personal knowledge, judicial review of such action nevertheless cannot be and is not excluded and this Court in exercising judicial review power would be competent to examine the materials placed before it for ascertaining whether the resolutions of the mayor-in-Council are tainted with illegality, irrationality and procedural impropriety or not and in the process the trust and confidence reposed in it by the Division Bench has been honoured by it or not. (27) IN terms of the Kolkata Municipal Corporation (Transaction of business of the Mayor-in-Council) Regulations, 1986 (hereafter the said regulations), all cases referred to in the second schedule of the said regulations shall be brought before the Mayor-in-Council in accordance with the provisions contained in Part-ll thereof. Second schedule to the said Regulations lists demolition of construction in contravention of the provisions of the Act [section 400 (8)] at SI. No. 52 as one requiring sanction of the Mayor-in-Council. Reg. Second schedule to the said Regulations lists demolition of construction in contravention of the provisions of the Act [section 400 (8)] at SI. No. 52 as one requiring sanction of the Mayor-in-Council. Reg. 13 of the said Regulations provides that a case referred to in the second schedule has to be submitted to the Mayor through the Municipal Commissioner after consideration by the department concerned with a view to obtaining his orders for circulation of the case or for bringing up for discussion at a meeting of the Mayor-in-Council. From the resolutions of the Mayor-in-Council extracted above, it is clear that the same were not adopted pursuant to circulation but on the basis of discussion, and hence the relevant statutory provisions in this behalf are considered hereafter. In respect of cases to be brought up for discussion, the department concerned in terms of Reg. 15 (1) is required to prepare a memorandum indicating with sufficient precision the salient facts of the case and the points for decision. It is also the requirement of Reg. 15 that such Memorandum alongwith such other papers that are necessary for disposal of the case shall be circulated to the Members after the Municipal commissioner has seen them. Reg. 16 (2) provides that the Mayor has to approve the agenda paper showing the cases to be discussed at a meeting of the Mayor-in-Council and only thereafter copies thereof together with copies of such Memoranda that have not been circulated under Reg. 15 (1)shall be sent up to the Members by the Council Secretary so as to reach them two clear days before the date of such meeting. In case of emergency, however, the Mayor is empowered to reduce the said period. Reg. 1. 5 (1)by itself, thus, is not mandatory in view of Reg. 16 (2). Reg. 16 (3) provides that "except with the permission of the Mayor, no case shall be placed on the agenda of a meeting unless papers relating thereto have been circulated as required by Paragraph (1) of Regulation 15." Reg. 16 (3) in view of the words "except" and "unless" in it, without doubt, is ambiguously worded. Requirement of adherence to Reg. 15 (1) has been allowed to be dispensed with but not the requirement envisaged in Reg. 16 (2). 16 (3) in view of the words "except" and "unless" in it, without doubt, is ambiguously worded. Requirement of adherence to Reg. 15 (1) has been allowed to be dispensed with but not the requirement envisaged in Reg. 16 (2). Harmoniously construed in the light of Section 400 (8), it would mean that a particular case calling for emergent action even without circulation of the relevant papers to the members of the Maycr-in-Council may be placed on the agenda for discussion, if permitted by the Mayor. However, having regard to the scheme of Section 400, this Court would hold that such a course of action is not to be adopted in all cases but only sparingly, in cases of grave emergency. This Court would also read in Reg. 16 (3), to obviate an allegation of arbitrary action, the requirement of recording of the Mayors satisfaction while granting permission that the case in hand is one which cannot brook any delay and hence has to be placed on agenda for discussion and decision dispensing with the requirement of circulating the papers to the members of the Mayor-in-Council. (28) FROM a conspectus of the statutory provisions it seems to be clear that even for exercise of drastic powers under Section 400 (8), the corporation authorities do not enjoy unbridled and unfettered discretion but a duty is cast on them to discharge certain statutory obligations and in the process to act reasonably. The records placed before this Court which have been looked into meticulously reveal that resolutions were passed by the Mayor-in-Council on items which were not included in the main agenda but on outside agenda items. There is no material in the records to establish that the relevant papers were circulated to the members of the Mayor-in-Council beforehand. Assuming arguendo that these cases called for emergent action, on the anvil of Reg. 16 (3), consideration of the cases as outside agenda items without circulation of papers by itself may not be faulted. However, no order of the Mayor granting permission to place a case on the agenda of the meeting in terms of Reg. 16 (3) form part of the records placed before this Court. 16 (3), consideration of the cases as outside agenda items without circulation of papers by itself may not be faulted. However, no order of the Mayor granting permission to place a case on the agenda of the meeting in terms of Reg. 16 (3) form part of the records placed before this Court. Finding out the satisfaction recorded by the Mayor dispensing with circulation of the papers to the members of the Mayor-in-Council, in such a circumstance, obviously does not arise and consequently no reason is discernible in support of inclusion of the cases as outside agenda items for discussion without circulation of papers. This affords sufficient ground for this Court to form an opinion that the requirements of Reg. 16 (3) were not adhered to in the present cases and procedural impropriety renders the decisions taken vulnerable. (29) MOREOVER, there is another important aspect which cannot be overlooked. In terms of Section 400 (8), the Mayor-in-Council is the sole judge of facts. However, the factual finding arrived at by it that "immediate action" is called for, in terms of the statutory mandate, must have the support of reasons. It is no doubt true that in terms of the procedure prescribed by the said Regulations, it has to proceed on the note prepared by the department concerned but this Court finds to its utter dismay that the Mayor-in-Council has abdicated its statutory duty in the present cases by according disproportionate weight to such note. No wonder, the impugned resolutions suffer from the vice of irrationality. (30) FROM a reading of the resolutions adopted by the Mayor-in-Council extracted above, one cannot but observe that the resolutions manifest an absolutely mechanical approach to the problem placed before it. Except for the first paragraph of the departmental note conveying the particulars of the premises in question together with the nature of violations, the rest of its contents in each and every case appear to be verbatim reproduction of the other with the exception that the dates are different and in some cases the area of unauthorized construction have been disclosed. Though sufficiency of the evidentiary materials disclosed in the departmental notes and the probative criteria for recording satisfaction is of course the domain of the Mayor-in-Council, this Court would not be unjustified in commenting that the same are, without doubt, stereo-typed. Though sufficiency of the evidentiary materials disclosed in the departmental notes and the probative criteria for recording satisfaction is of course the domain of the Mayor-in-Council, this Court would not be unjustified in commenting that the same are, without doubt, stereo-typed. The department had observed that the impugned unauthorised construction/structure, if allowed to stand, will create several hazards like traffic congestion, fire hazards and environmental hazards; that the construction has been raised in a haphazard manner without following the norms and practice of Civil Engineering; and further that the structural stability thereof is doubtful; and consequently action was recommended under Section 400 (8) of the said Act on such grounds considering the gravity of the situation and safety of the adjoining structures as well as safety of the public in general. (31) TRUE it is that in terms of the relevant statute, right to fair hearing has been made to yield to considerations of public safety and security but the degree of care and caution to be exercised in such case is also of paramount importance. No licence has been given to the Corporation authorities to act arbitrarily. The departmental note has been prepared by officials on the basis of what they have perceived through their senses. What have been recorded on the basis of such perception may be right, it may be wrong. There is no scope for the person against whom the note is prepared to establish that it contains findings and observations which are not only incorrect, but are entirely wrong. Yet, this would be considered by the Mayor-in-Council for formation of an opinion as to whether immediate action is called for under Section 400 (8) or not. Having regard to the settled law that wider the extent of power, the more care and circumspection is called for, can the Mayor-in-Council take a decision treating the departmental note as sacrosanct? Is it not required to record its satisfaction qua each of the grounds or at least some of them? Without recording such satisfaction, can a decision be taken only on "considering these facts" as one finds in all the resolutions? Is the resolution adopted by it in a particular case not one which can be used in all cases where it considers action under Section 400 (8) necessary? Without recording such satisfaction, can a decision be taken only on "considering these facts" as one finds in all the resolutions? Is the resolution adopted by it in a particular case not one which can be used in all cases where it considers action under Section 400 (8) necessary? To the Courts mind, principle of reasonableness abhors the manner in which the Mayor-in-Council has proceeded to direct demolition under Section 400 (8) of the Act in all these cases. (32) WHETHER or not the statutory mandate of recording of reasons has been respected in the present cases is now taken up for consideration. This Court considers it pertinent to refer to the observation of Honble sanjib Banerjee, J. in His Lordships judgment in A. P. O. T. No. 451 of 2007 (Uniworth Resorts Limited v. Sri Ashok Mittal and Anr.) (unreported), wherein it has been ruled as under: - "judicial orders of such nature need to meet the twin tests of why and what. It is the why that sustains the what. Reasons are the safeguard against the ipsi dixit of the decision-making process. They discuss how the Judicial mind has been applied to the matter in issue and convey the nexus between the matters that have been considered and the conclusion based thereon. The justification and the reasonableness of a conclusion depend on the reasons given in support thereof. The order impugned has no element of why for the what therein to stand on. " (33) THIS Court cannot agree more with His Lordship. Though the observation was made in the context of a judicial order of a Tribunal which was under challenge, the same applies with equal force even in respect of an order passed by an administrative authority exercising quasi-judicial functions. (34) THE concerned statute requires the Mayor-in-Council to record the "why for the "what". The reasons constituting "why" need not be detailed to establish why immediate action is called for but must manifest application of mind and consideration of matters germane to the issue. No order can be passed in a routine manner. There has been no allegation that any of the impugned constructions have come up on public land; on the contrary, particulars in respect thereof amply clears the position that they have come up on private land. No order can be passed in a routine manner. There has been no allegation that any of the impugned constructions have come up on public land; on the contrary, particulars in respect thereof amply clears the position that they have come up on private land. How a construction being raised illegally which encroaches the mandatory side space or on the top of an existing building would lead to traffic congestion as well as environmental hazards, which are two of the grounds mentioned in the departmental note, is not comprehensible. This Court has looked into the other records placed before it. No report prepared by the Corporation officials has been found which, prima facie, would lead one to the conclusion that whatever construction activity has been undertaken falls short of the statutory requirement as prescribed in Chapter-XVII of the Building Rules. To conclude that the structural stability is doubtful, without the basic facts before it, is recording of ones ipse dixit. This being the nature of the departmental note, placing absolute reliance on it by the Mayor-in-Council to the mind of this Court does not meet the requirement of the statute. Satisfaction of the Mayor-in-Council qua each or at least some of the grounds does not exist. The resolutions adopted do indicate that the same have been and, may be, are being used like printed orders prepared before hand in all cases where the Mayor-in-Council takes a decision under section 400 (8) for demolition forthwith. This has the effect of vitiating the entire proceeding. There has thus been misuse of the sweeping power conferred on it by Section 400 (8) and the Mayor-in-Council has committed gross errors of law, for which the resolutions adopted by it directing action under Section 400 (8) are susceptible to invalidation. (35) FOR the reasons aforesaid, the concerned resolutions of the mayor-in-Council stand set aside. (36) NOW comes the question of relief. It cannot be disputed that different fact situations warrant different approaches by the administrative authorities and it would be impermissible for the Court to substitute its views for the views of such authorities. As noted earlier, the mayor-in-Council is best suited to decide the course of action in a particular case having regard to its complexities. It cannot be disputed that different fact situations warrant different approaches by the administrative authorities and it would be impermissible for the Court to substitute its views for the views of such authorities. As noted earlier, the mayor-in-Council is best suited to decide the course of action in a particular case having regard to its complexities. Whether a particular case would attract action under Section 400 (8) or Section 400 (1) or any other provision must be left to the authorities to decide or else the very purpose of legislation and the legislative intent would be defeated. In those circumstances, this court considers that interest of justice would be best served if the respondents are directed to place the entire records of each particular case before the Mayor of the Corporation for taking necessary action thereon in accordance with the extant Regulations. Needless to record that if it is decided to place any particular case before the Mayor-in-Council, it shall also be under an obligation to take appropriate decision according to law and in the light of the observations made hereinabove. (37) TILL such time an appropriate decision in terms of the directions contained hereinabove is taken, the interim orders restraining the petitioners from making any further construction shall continue. However, this order shall not prevent the Corporation from implementing the order passed by the Special Officer (Building) in respect of the unauthorised construction raised by Sunil. (38) BEFORE parting, this Court considers it necessary to place on record that in the case of Koel it has been found that even after a resolution was adopted by the Mayor-in-Council on 4. 5. 07 for demolishing the unauthorised construction at the premises in question (88a, Sarat Bose road, Ward No. 69, Borough No. VIII) in exercise of power conferred by section 400 (8) of the Act, the Member, Mayor-in-Council (Building) himself thereafter on 19. 5. 07 on a representation of one Chandan Ray directed that action may be taken in respect of the self-same unauthorized construction in terms of Section 400 (1) of the Act. This directive of the member, a signatory to the departmental note and possibly a part of the decision making body, clearly demolishes the resolution that immediate action is called for. 07 on a representation of one Chandan Ray directed that action may be taken in respect of the self-same unauthorized construction in terms of Section 400 (1) of the Act. This directive of the member, a signatory to the departmental note and possibly a part of the decision making body, clearly demolishes the resolution that immediate action is called for. The member, Mayor-in-Council as well as Mayor-in-Council must exercise due care and caution while passing orders in respect of any unauthorized construction so as to ensure that there is no conflict of decision. (39) THE writ petitions stand disposed in terms of the above directions. However, parties shall bear their own costs.