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2018 DIGILAW 431 (CAL)

Union of India v. State of West Bengal

2018-06-20

DEBANGSU BASAK

body2018
JUDGMENT : Debangsu Basak, J. 1. A letter dated February 12, 2016 issued by the Kolkata Municipal Corporation, a letter dated August 10, 2016 issued by the Officer-in-Charge, Alipore Police Station and a notice under Section 401 of the Kolkata Municipal Corporation Act, 1980, dated August 11, 2016 are under challenge in the present writ petition at the behest of the Union of India. 2. Learned Additional Solicitor General appearing in support of the petition submits that, the defence was constructing a building for office and residential purposes on a plot of land belonging to the defence. He draws the attention of the Court to two documents at pages 31 and 32 of the writ petition and submits that, the land, in question, was initially under the management of the Quarter Master General and, subsequently, taken over by the Director General of Defence Estates. The land continues to remain with the defence. The defence being the owner of the land, it was entitled to make a construction on such land. He relies upon the provisions of the Government Building Act, 1899 and submits that, since the land, in question, is of the defence and construction undertaken therein is by the defence, the petitioner enjoys the right to make a construction thereat without reference to the Kolkata Municipal Corporation. He submits that, the building undertaken to be constructed at the land concerned is not governed by the provisions of the Kolkata Municipal Corporation Act, 1980 and the Building Rules framed thereunder. In support of his contention that, Government and defence land is governed by the provisions of the Act of 1899, he relies upon 2016(1) CHN (Cal) 329 (Kamal Dey v. Archeological Survey of India) 3. Learned Additional Solicitor General refers to the correspondence exchanged on behalf of the petition or, the State and the Kolkata Municipal Corporation. He refers to a letter dated March 28, 2014 by which the Ministry of Defence had intimated the Director General of Defence Estates about the permission being accorded by the President of India for making construction by incurring the expenditure as allocated. He submits that, the Defence Estates Officer by a writing dated November 10, 2014 had sought permission from the Kolkata Municipal Corporation for felling and disposal of seventeen numbers of trees at the plot of land in question. He submits that, the Defence Estates Officer by a writing dated November 10, 2014 had sought permission from the Kolkata Municipal Corporation for felling and disposal of seventeen numbers of trees at the plot of land in question. Kolkata Municipal Corporation had granted such permission by a writing dated December 4, 2014. He refers to the letter dated February 12, 2016 by which the Kolkata Municipal Corporation raised an issue as to security threat to Presidency Correctional Home in respect of the construction at the land concerned. He submits that, Kolkata Municipal Corporation by such writing had required the petitioner to stop the construction, till the petitioner obtained a No Objection Certificate from the Directorate of the Correctional Home Services, Government of West Bengal. According to him, Kolkata Municipal Corporation does not have any jurisdiction to require the petitioner to obtain such no objection or to direct the petitioner to stop work on the plea of security threat to the Correctional Home. By a letter dated February 22, 2016, the petitioner had raised objections with regard to the stand taken by the Kolkata Municipal Corporation. The petitioner had received a writing dated August 10, 2016 from the Officer-in-Charge of Alipore Police Station stating that, the construction undertaken by the petitioner was without obtaining the No Objection Certificate from the Directorate of the Correctional Home Services. He submits that, thereafter, the corporation authorities had issued a notice under Section 401 of the Act of 1980. According to him, neither the Officer-in-Charge of the concerned Police Station nor Kolkata Municipal Corporation has the jurisdiction to direct the petitioner to stop the construction on the plea of security threat or otherwise. He submits that, the petitioner had by a writing dated August 10, 2016 demanded justice from the Corporation Authorities. In reply thereto, the Corporation by its letter dated September 15, 2016 had stated that, it had issued a notice under Section 401 of the Act of 1980 in view of the objections raised by the Directorate of Correctional Services, Government of West Bengal. 4. Learned Additional Solicitor General refers to the provisions of the Government Buildings Act, 1899 and submits that, by virtue of the provisions of such Act of 1899, the defence is immune from the applicability of the provisions of the Act of 1980. 4. Learned Additional Solicitor General refers to the provisions of the Government Buildings Act, 1899 and submits that, by virtue of the provisions of such Act of 1899, the defence is immune from the applicability of the provisions of the Act of 1980. The building concerned being connected with the defence, the petitioner enjoys immunity under the Act of 1899. Neither the Corporation nor the State Government has any jurisdiction to interfere with such construction. He submits that, the impugned letters of the Police and the Corporation are without any jurisdiction and should be quashed. Referring to the locale at which the construction is sought to be made, he submits that, there are large number of buildings in the vicinity of the Correctional Home which are taller than the proposed construction. The Correctional Home did not object to such constructions at the behest of private parties. The plea of security threat is misplaced in the given facts. He draws the attention of the Court to the fact that, the contractor engaged by the petitioner has been stopped wrongfully from continuing with the construction. The petitioner apprehends that, the contractor would claim a sum in excess of Rs.5.9 crores as compensation. Consequently, he submits that, the three impugned writings should be quashed and the petitioner should be permitted to continue with the construction. He also seeks appropriate compensation. 5. Learned Advocate General appearing for the respondents submits that, the three writings are premised upon a security threat perceived by the Inspector General of the Correctional Homes. Such perception of threat is not amenable to judicial review. There is no pleading in the writ petition stating that, the threat perception as expressed by the authority is without any basis. There cannot be any criteria on the basis of which the Court will arrive at a finding that the threat perception, as expressed, is without any basis. Therefore, the Court should not interfere as the subject matter of the writ petition is something which is not judicially manageable by any standard. In support of such contentions he relies upon 1995 Volume-IV Supreme Court Cases Page-73 (A.K. Kaul & Another –Vs- Union of India & Another) and 1994 Volume-II Supreme Court Cases, Page-48 (Mohd. Aslam alias Bhure –Vs- Union of India & Others). The decision of the Directorate of Correctional Home that, there is a threat perception is an administrative decision. In support of such contentions he relies upon 1995 Volume-IV Supreme Court Cases Page-73 (A.K. Kaul & Another –Vs- Union of India & Another) and 1994 Volume-II Supreme Court Cases, Page-48 (Mohd. Aslam alias Bhure –Vs- Union of India & Others). The decision of the Directorate of Correctional Home that, there is a threat perception is an administrative decision. It is for the petitioner to establish that, such administrative decision is contrary to the statute or to the Constitution to successfully challenge the same. In the present case, since there is no yardstick to determine whether the threat perception as expressed by the Directorate of Correctional Homes is correct or not, the Court should not intervene. The petitioner will, therefore, not be entitled to any relief in the present writ petition. In support of his contentions, learned Advocate General relies upon 1980 Volume-II Supreme Court Cases Page-471 (State of Punjab & Another –Vs- Gurdial Singh & Others), All India Reporter 2002 Supreme Court Page-350 (BALCO Employees Union (Regd.) –Vs-Union of India & Ors.) and 2012 Volume-V Supreme Court Cases Page-443 (Heinz India Private Limited & Anr. –Vs-State of Uttar Pradesh & Ors.). 6. Referring to the provisions of the Act of 1899, learned Advocate General submits that, even a defence organization does not enjoy complete immunity of the applicability of the provisions of the local municipal laws including the Kolkata Municipal Corporation Act, 1980. He refers to Sections 3 and 4 of the Act of 1899 and submits that, the petitioner was required to issue a notice to the Corporation about the proposed construction. Upon such notice being received, it was for the State Government to take a decision as to whether the petitioner should continue with the construction or not. The petitioner not having issued any notice under the Act of 1899, it cannot be heard to complain that, the State Government is preventing the construction to be made by the petitioner, unreasonably. He submits that, various provisions of the Kolkata Municipal Corporation Act, 1980 applies to a construction, even if it is made by the defence, particularly, the provisions of 396, 398 and 401 thereof. Moreover, the petitioner is guilty of unexplained delay in excess of one year in approaching the Writ Court. He submits that, various provisions of the Kolkata Municipal Corporation Act, 1980 applies to a construction, even if it is made by the defence, particularly, the provisions of 396, 398 and 401 thereof. Moreover, the petitioner is guilty of unexplained delay in excess of one year in approaching the Writ Court. The last action of the Corporation and the State ended in 2016 with the writ petition being filed in 2018 after a period of expiry of more than a year from the last date on which the cause of action, assuming that the petitioner has one, accrued in favour of the petitioner. Consequently, on the ground of delay also the petitioner is not entitled to any relief. The petitioner cannot be allowed to take a plea founded upon negative equality. Even if the State authorities did not object to the construction of building in the vicinity by private parties, that by itself does not denude the State authorities of the power or right to object to the present construction. The security threat perception not being substantiated to be a perverse view, and in fact, the same cannot be said to be so, the petitioner is not entitled to any relief. 7. Learned advocate appearing for the corporation submits that, when the corporation had issued a notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 at a point of time when it was not aware as to the nature of the plot of land concerned. It had received a complaint from the authorities with regard to unauthorized construction and had acted on the basis thereof. Moreover, the construction undertaken by the petitioner was a security threat to the Correctional Home. It had forwarded such opinion of the Directorate of Correctional Homes to the petitioner subsequently. According to him, the petitioner is guilty of unexplained delay. 8. The writ petition is being considered after issuance of directions for filing affidavits. None of the respondents have chosen to file an affidavit despite an opportunity to do so being granted by the order May 17, 2018 when the writ petition was taken up for consideration. Yesterday a request was made on behalf of the State to extend the time to file affidavits. Such prayer was vehemently opposed by the Additional Solicitor General on the ground that, the petitioner was incurring avoidable day to day expenses. Yesterday a request was made on behalf of the State to extend the time to file affidavits. Such prayer was vehemently opposed by the Additional Solicitor General on the ground that, the petitioner was incurring avoidable day to day expenses. Upon such request being made, it was observed that, in the event, the affidavit-in-opposition is made ready and brought to the Court before the hearing the same would be accepted. Today, the State does not make any effort to seek further extension of time or to produce any affidavit it has prepared. 9. The petitioner is constructing a building at premises no. 4/1 Belvedere Road, Kolkata. Pages 31 and 32 of the writ petition establish that, the land in question, was initially under the Quarter Master General of the defence and subsequently, being managed by the Director General of Defence Estates. The land, in question, is a defence land. 10. The provisions of the Government Buildings Act, 1899 requires consideration in the context of the rival contentions of the parties. The relevant provisions of the Act of 1899 are as follows :- “(2) It extends to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States. 2. “Municipal authority” defined. In this Act the expression “municipal authority” includes a municipal corporation or a body of municipal commissioners constituted by, or under the provisions of, any law or enactment for the time being in force. 3. Exemption of certain Government buildings from municipal laws to regulate the erection, etc., of buildings within municipalities. 2. “Municipal authority” defined. In this Act the expression “municipal authority” includes a municipal corporation or a body of municipal commissioners constituted by, or under the provisions of, any law or enactment for the time being in force. 3. Exemption of certain Government buildings from municipal laws to regulate the erection, etc., of buildings within municipalities. Nothing contained in any law or enactment for the time being in force to regulate the erection, re-erection, construction, alternation or maintenance of buildings within the limits of any municipality shall apply to any building used or required for the public service or for any public purpose, which is the property, or in the occupation, of the Government, or which is to be erected on land which is the property, or in the occupation, of the Government: Provided that, where the erection, re-erection, construction or material structural alternation of any such building as aforesaid (not being a building connected with defence, or a building the plan or construction of which ought, in the opinion of the Government concerned, to be treated as confidential or secret) is contemplated, reasonable notice of the proposed work shall be given to the municipal authority before it is commenced. 4. Objections or suggestions as to erection, etc., of certain Government buildings within municipalities, how to be made and dealt with. (1) In the case of any such building as is mentioned in the last preceding section (not being a building connected with defence or a building the plan or construction of which ought, in the opinion of the Government concerned, to be treated as confidential or secret), the municipal authority, or any person authorized by it in this behalf, may, with the permission of the State Government previously obtained, but not otherwise, and subject to any restrictions or conditions which may, by general or special order, be imposed by the State Government, inspect the land and building and all plans connected with its erection, re-erection, construction or material structural alteration, as the case may be, and may submit to the State Government a statement in writing of any objections or suggestions which such municipal authority may deem fit to make with reference to such erection, re-erection, construction or material structural alteration. (2) Every objection or suggestion submitted as aforesaid shall be considered by the State Government, which shall, after such investigation (if any) as it shall think advisable, pass orders thereon, and the building referred to therein shall be erected, re-erected, constructed or altered, as the case may be, in accordance with such orders: Provided that, if the State Government overrules or disregards any such objection or suggestion as aforesaid, it shall give its reasons for so doing in writing.” 11. Section 2 defines a municipal authority. Such definition includes a corporation established by a provision of law. Kolkata Municipal Corporation is established under the provisions of the Kolkata Municipal Corporation Act, 1980 and it comes within the definition of a municipal authority as envisaged under the Act of 1899. Section 3 of the Act of 1899 grants exemption to Government Buildings from the municipal laws regulating erection, construction and alteration of the buildings within a municipal area. Government Buildings enjoying exemptions under Section 3 can be classified in two categories. Government Buildings which are not that of the defence or a building which the Central Government in its wisdom does not consider to be confidential or secret enjoy limited immunity with regard to the applicability of the local laws. Buildings of defence and buildings which the Central Government in its wisdom, considers to be confidential or secret, enjoy complete immunity from the applicability of the provisions of the local municipal laws. The first category of Government Buildings which enjoy limited immunity are required to give reasonable notice of the proposed work to the municipal authority before the construction is commenced. The first category of buildings is not under consideration in the present case. The present case will be governed by the second category where the buildings proposed to be constructed are by the defence, on defence land. Section 4 deals with objections or suggestions with regard to construction or erection of Government buildings which falls within the first category enjoying limited immunity. 12. In view of such situation in law, in the present case, the defence is seeking to construct buildings for the defence, on defence land. Therefore, it is entitled to do so without reference to Kolkata Municipal Corporation, and without obtaining prior sanction from the Kolkata Municipal Corporation under the Act, 1980 for such purpose. 12. In view of such situation in law, in the present case, the defence is seeking to construct buildings for the defence, on defence land. Therefore, it is entitled to do so without reference to Kolkata Municipal Corporation, and without obtaining prior sanction from the Kolkata Municipal Corporation under the Act, 1980 for such purpose. The Act of 1980 cannot be invoked by Kolkata Municipal Corporation to stop the construction of such building on the ground that prior permission on the corporation was not obtained or otherwise as the Act of 1980 does not apply to the buildings under construction by the defence, by virtue of the provisions of the Act of 1899. 13. A.K. Kaul (Supra) is of the view that, there may be matters which are not susceptible to judicial process, due to want of judicially manageable standards. Similar view is expressed in Mohd. Aslam alias Bhure (Supra). In the present case, the decision of the State expressed by the Officer-in-Charge of the Police Station, and that of a Corporation established by an Act of the State Legislature are under challenge, as being without jurisdiction. There are judicially recognised parameters to adjudge the actions of the authorities complained of to be within or without jurisdiction. It is within the domain of the writ court to decide as to whether the actions of the authorities, within the meaning of Article 12 of the Constitution of India, are within their jurisdiction or not. In view of the provisions of the Act of 1899, none of the actions of the Corporation can be said to be within its jurisdiction. Nothing is placed on record to establish that, the police authorities can direct stoppage of construction, by the defence, on defence land for the ostensible reason or otherwise. 14. Gurdial Singh (Supra) is of the view that, wisdom in administrative action is the property of the executive and judicial circumspection keeps the Court lockjawed save where power has been polluted by oblique ends or is otherwise void on well established grounds. Balco (Supra) considers an economic policy of disinvestment and on the finding that, the economic policy of the Central Government not being vitiated on judicially recognized principles, it refused to intervene in such policy matters. Heinz India Private Limited (Supra) notices the limitations of judicial review laid down in Gurdial Singh (Supra). Balco (Supra) considers an economic policy of disinvestment and on the finding that, the economic policy of the Central Government not being vitiated on judicially recognized principles, it refused to intervene in such policy matters. Heinz India Private Limited (Supra) notices the limitations of judicial review laid down in Gurdial Singh (Supra). As noted above, in the facts of the present case actions by two authorities are under challenge on the ground of being beyond jurisdiction. Those decisions are to be looked into and considered as to whether there were exercises within the powers of such authorities or not. 15. It is the contention of the Advocate General that, the defence is required to give prior notice of construction even under the provisions of the Act of 1899. With respect, I am unable to accept such contentions in view of the wordings used in Sections 3 and 4 of the Act of 1899. Sections 3 and 4 exempt the applicability of the provisions of such Sections to properties belonging to the defence and where constructions made are considered by the Central Government to be secret and confidential. 16. So far as the question of delay is concerned, in the facts of the present case, the same cannot be said to be fatal to the petitioner. Noticeably, the Union of India is the writ petitioner before the Court. It has taken a period of slightly in excess of a year from the last date when the authorities had intervened to stop the construction. Such a period of time, in the facts of the present case, should not be construed to be fatal to the writ petitioner. 17. In such circumstances, the impugned writings of the State and the Corporation are set aside. 18. W.P. No.6194 (W) of 2018 is allowed. 19. No order as to costs. 20. Urgent certified Website copy of this order, if applied, be supplied to the parties, upon compliance of all requisite formalities.