PURUSOTTARN LALJI Vs. RATAN LAI AGARWALLA

JUDGEMENT

(1.) : Ratan Lal Agarwalla and Lakshmi Chard Agarwalla, are the owners of three-fourth share and trustees for remaining one-fourth share in premises No. 21, Hans-pukur First Lane, Calcutta. The adjoining premises No. 20a, Hans pukur First Lane, is a trust property of which the trustees are mentioned in paragraph 3 of the petition under Article 226 of the Constitution to this court. It was alleged in the petition that at the back of premises No. 20a, Hans pukur First Lane, there was a space in which there existed a structure with Raniganj tiled sloped roof. It has been further alleged that the owners of the premises raised the height of the walls and constructed a roof thereon without any sanction by the Corporation of Calcutta. On a complaint by the petitioners action was taker. by the Corporation of Calcutta. A notice was issued under section 416 of the Calcutta Municipal Act, 1951, and thereafter the matter came up before the Commissioner under section 414 of the said Act. Upon this the Commissioner having considered the matter passed the following order on 16th May, 1962 "heard representatives of both the owners and the complainants. There is a roof, but the R. T. roof has been admittedly converted to flat terrace roof. The character of the roof has been changed without sanction. If the party pays all charges as per Corporation Resolutions within one month from the date of communication of this order, the case may be dropped failing which the roof will be demolished. " the petitioners thereafter made an application under Article 226 of the Constitution and a rule nisi was issued. The matter came up for hearing before Banerjee, J. According to the learned Judge there was infringement of rule 30 of Schedule XVI of the Calcutta Municipal Act, 1951 which could be relaxed under rule 31. The learned Judge was of the view that it did not appear from the order of the Commissioner whether the unauthorised construction deserved relaxation under rule S1 nor did the Commissioner take the approved of the Standing Building Committee when making the order of relaxation. In the aforesaid view of the matter the learned Judge was of the view that the order of the Commissioner could not be sustained and he accordingly quashed the order. The learned Judge however observed that the said order would not prevent the Commissioner from exercising the power under rule 31 of schedule XVI of the Calcutta Municipal Act in accordance with the law, An appeal was preferred from the said order and judgment of Banerjee, J. The appeal came up for hearing before the Division Bench of this court consisting of Sinha, J. as his Lordship then was and Sen, J. It was argued before the learned Judges of the appellate court that under section. 414 the Commissioner had a discretion in the matter and if the Commissioner had exercised the discretion such exercise of the discretion could not be and should not be interfered by this court The learned Judges were of the opinion that though this point was not taken before Banerjee, J. the appellants were entitled to urge this point as being a question of law. Their Lordships however were of the view that under section 414 there was undoubtedly a discretion, but in respect of matters which involved violation of unrelaxable rules the Commissioner had no discretion and should always pass an order for demolition. The learned Judges referred to the decision of this court in the case of Pramila Sundari v. Corporation of Calcutta and others to a bench decision in the case of (1) Subhasini Nandi v. Corporation of Calcutta and anr. 59 C. W. N. page 77g. Their Lordships however felt that the view that their Lordships were inclined to take was in conflict with the division bench decision of this court in the case of (2) Yudhisthir Kumar Dutt and ors. v. Commissioner of the Corporation of Calcutta and ors. 69 C. W. N. 249. In the aforesaid view of the matter their Lordships felt that two questions of importance arose, namely : 1. Under section 414 of the Calcutta Municipal Act, 1951, has the Commissioner an absolute discretion to make or not to make, an order of demolition ?

(2.) CAN he refuse to make an order, where there is an unauthorized construction infringing rules which are either- (a) not relaxable under the provisions of the said Act or (b) are relaxable but have not been relaxed ? accordingly their Lordships referred this appeal under rule 1 of Chapter XXXIA of the Original Side of this Court. The question for our consideration is the scope and effect of section 414 so far as it affects the power and discretion of the Commissioner. 2. In order to decide the questions involved in this case it is necessary to consider the relevant statutory provisions. The Schedule XVI of the Calcutta Municipal Act, 1951 contains rules as to the use of building-sites and the execution of building-work. Section 376 of the Calcutta Municipal Act, which is in Chapter XXII provides that no piece of land shall be used as a site far the erection of a new building, and no new building shall be erected, otherwise than in accordance with the provisions of the said Chapter, namely, Chapter XXII and Schedule XVI of the Act, and any orders, rules or by-laws made under the said Act. The expression, "new building" has been defined under section 5, sub-section (49) of the Calcutta Municipal Act, 1951. Section 387 of the Act provides that subject to the provisions of section 388, and the provisions of other sections contained in Chapter XXII of the Act, Schedule 16 and or any orders, rules and by-laws made under the Act, relating to the erection of new buildings, shall, subject to the rules in Part X of the said Schedule XVI, apply to every alteration of, or addition to, any building, and to any other work (except that of necessary repairs not involving any of the works specified in rule 90 of the Schedule XVI) made or done for any purpose in, to, or upon any building. Section 388 deals with the powers to relax provisions of the said Chapter, namely, Chapter XXII and Schedule XVI. It [has "been provided that in the case of an erection of any new building as defined in sub-clauses (b), (c) or (d) of clause (49) of section 5, and in the case of any addition or alteration or other work referred to in section 387. such relaxation of the provisions of the Chapter and Schedule XVI may be made as the Commissioner may think fit. It provides further that no such relaxation shall apply to cases other than those specifically mentioned in Schedule XVI, and such relaxations are not likely to prejudicially affect the sanitation or ventilation of the building or other buildings in its vicinity. Therefore the effect of section 388 is that only such deviations from the rules in Schedule XVI can be permissible if they are relaxable under the said Schedule and provided further that such relaxation do not prejudicially affect the sanitation or ventilation of the building in question or of other building in the vicinity. Section 414 is contained in Chapter XXIV of the Act which deals with demolition, alteration and stopping of unlawful work. In view of the controversy in this case, it is necessary to set out section 414 which is as follows :

(3.) AN analysis of the different provisions of the Act makes it clear that the buildings should conform to certain rules and before construction of new buildings must be obtained. The rules to which the buildings should conform have been mentioned in the Act and powers have been given to the Commissioner to relax the rules for the purpose of sanction, in certain cases upon certain contingencies, If a building is constructed or continue to exist, which has been constructed without sanction or contrary to the rules, powers have been given to the authorities to impose penalties as well as to order demolition and alteration of the building. As noticed before, authority has been given to the Commissioner to order demolition, alteration and stopping of unlawful work in respect of such buildings by virtue of section 414 of the Act. If an application is made for sanction the said sanction should be granted in accordance with the rules provided. Relaxation is only possible in the manner indicated in the rules in granting such sanction. But the question that arises in this case is that where there has been no relaxation or in a case where the rule cannot be relaxed, in such a case, if a building or a portion thereof has been constructed or altered, what is the scope of the power of the Commissioner under section 414 of the Calcutta Municipal Act, 1951 ?