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2013 DIGILAW 317 (MP)

Municipal Corporation, Bhopal v. State of M. P.

2013-03-08

Rajendra Menon, S.A.Bobde

body2013
ORDER Bobde, C.J. -- 1. The appellant Municipal Corporationof Bhopal has come in appeal against the judgment of the learned Single Judge dated 7.2.2012 by which the learned Single Judge has held that the respondent State of Madhya Pradesh did not have the power to remand the matter back to the Municipal Corporation. Having held so, however, the learned Single Judge instead of directing the State Government to decide the matter itself has proceeded to consider the merits of the matter pertain to grant of building permission and directed that the respondents No.4 to 6 the plot holders shall be permitted to carry out the construction. 2. The matter arose in this way : the Municipal Corporation appellant granted permission to make construction to respondents No.4 to 6 the plot holders (hereinafter referred to as “plot holders”) on 8.4.2002. Thereafter, the Corporation initiated action on the ground that the construction was made in an illegal colony and directed to be stopped. The plot holders were again given permission on 13th April, 2008 after due enquiry. However, again on 7.8.2009 another stop work notice was issued to the respondents.This was done in view of the allegation that the construction is being done in an area which was reserved for road widening. However, after considering the reply of the respondents, the matter was not decided by the Corporation but was referred to the State Government by the Commissioner of the Corporation on 7.1.2010. The matter was then heard by the State Government and after perusing the documents passed the impugned order remanding the matter back to the Municipal Corporation. This remand order dated 29.4.20010 was challenged by the plot holders before the learned Single Judge. The learned Single Judge heard the matter and held that the State Government had no power to remand the matter to the Municipal Corporation but was bound to either cancel the permission or revise the permission under section 299A of the M.P. Municipal Corporation Act. Inspite of the finding that the State Government could not have remanded the matter but is bound to decide the matter itself.The learned Single Judge proceeded to consider the matter on merit and directed that the plot holders be allowed to make construction as per the sanction order granted by the Municipal Corporation. Aggrieved by the said judgment this appeal has been filed. 3. Aggrieved by the said judgment this appeal has been filed. 3. One of the question arises whether the Government has the power under section 299A of the Madhya Pradesh Municipal Corporation Act, 1956 (for short ‘the Act’) to remand the matter to the Municipal Corporation for reconsidering the question before it. Section 299A of the Act reads as under : “299A. Power of State Government to cancel or revise permission for construction of a building. -- If it is found that any permission for construction of a building has been given in violation of any provision of this Act or Rules or bye-laws made thereunder or in the opinion of the State Government it is necessary in the public interest that the permission granted by the Municipal Corporation deserves to be cancelled or revised the State Government shall have power to cancel or revise such permission and on such cancellation or revision, as the case may be, any construction contrary to the order regarding cancellation or revision shall be deemed to be without permission and shall be dealt with in accordance with the provisions of this Act and the Rules made thereunder : Provided that no such order shall be passed unless the aggrieved party has been given an opportunity of being heard.” 4. The word ‘remand’ means the act or instance of sending something (such as case, claim, or person) back for further action, Black’s Law Dictionary, 7th Edn., p.1295. It implies a termination of the proceedings, so far as the appellate authority is concerned, and no question would arise about continuation of the appeal thereafter. For another, the term “dismissed” has a definite legal connotation implying a final disposal by the Tribunal, rejecting the case of the suitor [See : AIR 1960 Madras 406]. 5. The power conferred on the State Government under section 299A of the Act is not an appellate power in stricto sensu. It is a power to cancel or revise permission granted by the Municipal Corporation for construction of building. The power conferred on the State Government is administrative in nature and it is conferred under specific terms. It is not the power conferred on a Court or Tribunal. Though in law, there is really no scope to consider whether the power reserves any inherent power on the State Government. The power conferred on the State Government is administrative in nature and it is conferred under specific terms. It is not the power conferred on a Court or Tribunal. Though in law, there is really no scope to consider whether the power reserves any inherent power on the State Government. The inherent power is normally deemed to be vested in a Court or in an authority such as result from the very nature and such as are essential to the existence of the institution. 6. P. Ramanatha Aiyer’s, Advanced Law Lexicon, 3rd Edition describes the word ‘remand’ as follows : “A remand implies a termination of the proceedings, so far as the appellate authority is concerned, and no question would arise about the continuation of the appeal thereafter. The term “dismissed” has a definite legal connotation implying a final disposal by the Tribunal, rejecting the case of the suitor.” 7. None of the considerations above, particularly such as the power essential to the existence of the institution, are necessary for complete and proper administration of justice arise in construction of section 299A of the Act. Therefore, it must be construed in terms of the section itself. The section has conferred only two powers, namely, that of cancellation or revision of the permission. It is not necessary to enlarge the scope and consider whether an additional power has been conferred for remanding the matter in that section. Such powers having not been held to be inherent in exercise of the power of the appellate authority under section 13 of the Orissa House Rent Control Act, 1967. In Smt. Nirmala Ben Patel v. Indersingh Bagi and another [ AIR 1977 Ori. 211 ], a Division Bench of the High Court considered the provisions of that Act which conferred power on the appellate authority to decide the appeal. The Bench rejected the contention that there was inherent power to remand the matter to the House Rent Controller to decide the matter. The power to make “such further enquiry ....”, either personally or through the Controller to decide the appeal. However, it was acknowledged and held that such a power does not incorporate with the power to remand the matter but an appeal may be kept pending during course of such enquiry. The power to make “such further enquiry ....”, either personally or through the Controller to decide the appeal. However, it was acknowledged and held that such a power does not incorporate with the power to remand the matter but an appeal may be kept pending during course of such enquiry. We are in respectful agreement with the view of the Orissa High Court and are of the view that the power conferred by section 299A of the Act does not co-operate the power to remand the matter to the Municipal Corporation. Undoubtedly, the State Government would be entitled to call for such records as may be considered appropriate for decision whether the permission should be cancelled or revised. 8. Whenever statutory provision enumerates the specific power of an authority the absence of mention of a particular power must be understood to mean that, that power was not specifically conferred on that authority. No authority has been placed before us to the contrary which holds that the power to remand is an inherent power vested with the State Government by section 299A. Indeed it appears having regard to section 299A which deals with permission for construction of a building that the legislature has thought it fit to prevent the undue prolongation of the dispute pertaining to a building permission by not conferring such a power of remand. On the other hand the legislature has specifically conferred only two powers namely the power to cancel or revise. 9. When a power is given to a statutory authority to do certain thing in a certain manner the thing must be done in that way only and not otherwise. Other modes of performance are necessarily forbidden. This is the basic principle of administrative law as has been held by the Supreme Court in the case of A.K. Roy and another v. State of Punjab and others [ (1986)4 SCC 326 ]. The power conferred to an authority under the statute has to be exercised in accordance with the provisions of the statute and not in any other manner. 10. If the authority empowered to take a decision or exercise its discretion hands over its discretion to another person or body, it acts ultra vires. This is the principle laid down by the Supreme Court in the case of Indian Railway Construction Company v. Ajay Kumar [ (2003)4 SCC 579 ]. 11. 10. If the authority empowered to take a decision or exercise its discretion hands over its discretion to another person or body, it acts ultra vires. This is the principle laid down by the Supreme Court in the case of Indian Railway Construction Company v. Ajay Kumar [ (2003)4 SCC 579 ]. 11. In the case of Ajay Kumar (supra), it is held as under : “13. .... In general a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the lelgislation that gives it power to act, and must not act arbitrarily on capriciously. These several principles can conveniently be grouped in two main categories : (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.” (Emphasis supplied) 12. In this view of the matter, we approve the findings of the learned Single Judge that the State Government did not have the power to remand the matter back to the Municipal Corporation to decide it, whether permission was granted properly or not but was bound to decide it or got to decide the same itself. 13. The matter however, does not end here. The learned Single Judge has while giving directions in paras 11 and 12 gone into the merits of the matter and has permitted the petitioner to make construction in accordance to the permission granted by the Municipal Corporation. In doing so, we find that the learned Single Judge has not appropriately dealt with the matter. Three deficiencies or illegalities were considered by the State Government upon the reference made by the Corporation. In doing so, we find that the learned Single Judge has not appropriately dealt with the matter. Three deficiencies or illegalities were considered by the State Government upon the reference made by the Corporation. These were as follows : “a. Plots No.1, 2, 14 and 15 are four independent plots, but building permission was granted jointly for raising construction thereon. b. Building permission could have been granted only for residential purposes, but same was granted for commercial purpose. c. FAR of 1:2.5 was sanctioned, whereas FAR prescribed for residential plots and colonies is 1:1.25.” 14. The judgment in appeal does not deal with the question of the alleged illegal clubbing of plot numbers 12, 13, 14 and 15 for the purpose of building permission. Further the issue whether the permission to make commercial construction on the plots which are residential in nature has also not been properly dealt with. The learned Single Judge has referred to separate commercial construction adjoining the plots and has come to the conclusion that therefore, plot holders permission is also valid. 15. Learned counsel for the Municipal Corporation seriously disputed the aforesaid finding since according to the learned counsel example referred to by the learned Single Judge do not refer to plots on which commercial constructions have been made towards the main road side. According to the learned counsel for the Corporation, the petitioners plots run all the way from the main road side to the other side i.e. the colony side and therefore, the example are not comparable. 16. Learned counsel for the plot holders submitted that there are examples of plots which run from the main road side to the colony side. However, these are not aspects which have been considered in the judgment in appeal at all. 17. As far as the third question is concerned, namely whether the FAR granted to the plot holders i.e. in the ratio of 1:2.5 is legal or not. There is much contention between the parties before us. According to the learned counsel for the plot holders the Rules permit the plots which are of abutting a 18 meter road to have a FAR of 1:2.5. However, the learned Deputy Advocate General does not confirm whether this is the only rule that operates. There is much contention between the parties before us. According to the learned counsel for the plot holders the Rules permit the plots which are of abutting a 18 meter road to have a FAR of 1:2.5. However, the learned Deputy Advocate General does not confirm whether this is the only rule that operates. The learned counsel for the Municipal Corporation rightly points out that the learned Single Judge has not decided the point of FAR on the basis of the Rules at all but has decided the same on the basis of documents. Even in that regard it is contended on behalf of the appellant that the learned Single Judge has referred to a document which shows the FAR of 1:2.5, but this is for the plot of the plot holders themselves and other plots referred to are for FAR that is less than 1.20 and 1.75. In the circumstances of the matter, we are of the view that learned Single Judge ought not to have decided whether the plot holders should be allotted the area of construction or not. Incidentally, there is nothing in the judgment in appeal about whether the building permission granted to the respondents plot holders is legal or not. There is only a direction to carry on construction. We find in the circumstances, that the judgment in appeal suffers from an error in law apparent from the face of the record and is liable to be set aside. In the view we have taken, we are not inclined to remand the matter back to learned Single Judge but consider it appropriate to direct the matter be decided afresh by the State Government which shall exercise the power under section 299A to either cancel or revise the permission. In a matter of this nature, we are of the view that the matter should be decided by authorities which have the necessary competence and expertise to decide properly in accordance to law. 18. In the result, the appeal succeeds. The judgment in appeal is set aside. The matter is directed to be decided by the State Government in accordance to law within a period of three months from today. The parties are directed to appear before the State on 18th March, 2012. Needless to say that the State Government would be within its right to refuse to cancel or revise if the circumstances so permit. The matter is directed to be decided by the State Government in accordance to law within a period of three months from today. The parties are directed to appear before the State on 18th March, 2012. Needless to say that the State Government would be within its right to refuse to cancel or revise if the circumstances so permit. All contentions of the parties are left open. 19. With the aforesaid, this appeal stands allowed and disposed of.