PURUSOTTAM LALJI Vs. RATAN LAL AGARWALLA

JUDGEMENT

(1.) Ratan Lal Agarwalla and Lakshmi Chand Agarwalla. are the owners of three-fourth share and trustees for remaining one-fourth share in premises No. 21. Hanspu-kur First Lane, Calcutta. The adjoining premises No. 20-A. Hanspukur 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. 20-A, Hanspukur 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 taken 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--

(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 for 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 buildings" has been denned under Section 5 Subsection (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 Dowers to relax provisions of the said Chapter, namely, Chapter XXII and Schedule XVI. It has been provided that in the case of en erection of any new building as defined in Sub-clause (b) (c) or fd) 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 sanction 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 continued 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 Qr 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 ?