Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Gopendra Krishna Chakrabarty And … vs Calcutta Municipal Corporation … on 10 August, 2000
Equivalent citations: AIR 2000 Cal 273
Author: D K Seth
Bench: D K Seth


ORDER

Dilip Kumar Seth, J.

1. The petitioner was granted permission to carry on the works with regard to Sub-clauses (c), (d), (g), (i) and (j) of Clause (2), Sub-rule (2) of Rule 3 and repairing the wooden beams where necessary. On 24th January, 2000 a notice under Section 401 of the Calcutta Municipal Corporation Act, 1980 was issued to the petitioner to stop all construction including addition and alteration. This has since been challenged.

2. The learned counsel for the petitioner contends that in the meantime his client has completed the work as permitted without deviation from the sanctioned plan in terms of the clauses as contained in Annexure ‘A’ to the petition, being dated 12th January, 2000. Still the notice under Section 401 has been issued.

3. Mr. L.C. Behani, learned Advocate appearing with Mr. Mihir Kundu on the contrary contends that there was a report that the petitioner had carried on certain construction works which are beyond the scope of Sub-rule (2) of Rule 3 of the Calcutta Municipal Buildings Rules, 1990. Therefore, the notice was issued. According to him the writ petition is premature inasmuch as the petitioner has an opportunity to show cause that no illegal construction or no unauthorised construction is being carried out.

4. I have heard the learned counsel appearing for both the parties at length.

5. Rule 3 of the Buildings Rules under Sub-rule (1) require every person to obtain prior sanction for erection, re-erection addition to alteration of a building. However, Sub-rule (2) provides for the exceptions where such permission/sanction is not required. This Sub-section begins with a non obstante clause. By reason thereof despite Sub-rule (1) no sanction will be necessary for carrying on any of the works in relation to a building as enumerated in Clauses (a) to (1) of Sub-rule (2).

6. The petitioner in the present case submits that he is carrying on the works strictly within the scope and ambit of Sub-rule (2) of Rule 3. Therefore, the issue of the notice is without jurisdiction and void.

7. Section 401 empowers the Municipal authority to stop work if it is carried on in contravention of any of the provisions of the Act. This Act prohibits carriage of work in contravention of the provisions of the Act. Therefore, Section 401 can be resorted to at any time whenever the authority receives an information and acting on such information it has reason to believe that there has been contravention it may issue a notice under Section 401.

8. Since such notice brings about certain civil consequences therefore before such notice is issued, the Corporation is required to satisfy itself on certain materials that there are reasons to believe that there has been a deviation. Such satisfaction may be based on a report of the building inspector or such officer of the Corporation. It cannot issue such notice mechanically. The Corporation must have some material before it so as to enable it to satisfy itself the necessity of invoking the power under Section 401.

9. Once such notice is issued the person at whose instance the work is being carried on is supposed to stop work. Section 401 does not step further than stopping work. Nowhere in the Act or the Rules any provision is made or any procedure has been provided for this purpose. At the same time it has not provided anything as to what would happen after such notice is issued and the Corporation does not proceed further.

10. On the contrary if the stop work continues it would bring about civil consequences on the person who had commenced the work. At the same time he may also be saddled with the cost of posting of police or employee of Corporation since such cost is recoverable from him under Sub-section (5) of Section 401. Such person becomes remediless in view of Sub-section (2) which bars the jurisdiction of Civil Court. Section 401 does not provide for any appeal.

10A. The consequence of deviation or erection without sanction or in contravention of the Act, is demolition of the unauthorised construction as contemplated in Section 400 of the Act. The question of demolition is dependant on the discretion of the Corporation to the extent of those unauthorised construction capable of being regularised. But so far as the unauthorised construction incapable of being regularised are concerned there is no alternative but to pull it down.

11. Now after a stop work is resorted to under Section 401 it is incumbent on the Corporation to resort to Section 400. Unless it does not do so the person subjected to Section 401 would be remediless. In the absence of any remedy and the jurisdiction of Civil Court having been barred, unless Section 400 is resorted to within a reasonable time, it cannot be conceived that such person will continue to suffer indefinitely in the absence of action under Section 400 on the part of the Corporation. Power to issue an order includes the power to recall, or rescind or vary or alter an order in view of Section 22 of the Bengal General Clauses Act.

12. If Section 400 is not resorted to within a reasonable time then such person cannot be precluded from or deprived of his right to apply for recalling of such order. Such reasonable time may be a fortnight or so, in ordinary case.

13. But as soon Section 400 is resorted to such person gets a remedy through the first proviso to Section 400 in the form of an opportunity of service of notice upon him and to show cause against the proposed action for demolition and then by way of an appeal under Sub-section (3) of Section 400, if aggrieved by an order under Sub-section (1) of Section 400. The Building Tribunal in appeal may stay enforcement of the order of demolition in exercise of its power under Sub-section (4) of Section 400. However, an extraordinary power of demolition is conferred on the Mayor in

Council notwithstanding anything contained in Chapter XXII. But such order must record reasons in writing. But we are now not concerned with the same.

14. Thus as soon a notice under Section 400 is issued after Section 401 is resorted to the aggrieved person has a remedy of showing cause and object to the passing of the order. Such proceeding is also expected to be concluded within a reasonable time which may not exceed 3 months in ordinary case. But where Section 400 is not resorted after Section 401 is invoked, the aggrieved person has a remedy to apply for rescinding, recalling or varying or altering or amending the order within the meaning of Section 22 of the Bengal General Clauses Act, which is implicit in Section 401.

15. Any view, if taken of Section 401, other than as observed above, would result into conferring unbridled, uncontrolled, uncanalised and arbitrary power on the executives which is otherwise impermissible within the schemes, framework and spirit of the Constitution of India, if the Corporation refrains from resorting to Section 400 after issue of a notice under Section 401 stopping work, by reason of keeping such person is an inanimated situation of continuing the stop work, without any remedy.

16. While interpreting a section it is the settled principle of interpretation that it has to be Interpreted according to the whole scheme of the Act and each of the sections are to be construed harmoniously reconciling each with the other which advances the object and purpose of the Act and at the same time it does not become oppressive, if possible. A plain reading of Chapter XXII and the Rules framed, therefore, indicates that whenever an action involving penal or civil consequences is to be taken by the executives, it has to act judiciously. Since Section 400 supplements Section 401 therefore the same are to be read together for the purpose of interpretation. The opportunity provided in Section 400 may be implicit in Section 401 until and unless Section 400 is resorted to, however without the right of appeal. But an order under Section 401 on an application for recalling etc. without Section 400 being resorted to would be a deemed order under Section 400 since the application for recalling etc. would ensue an opportunity within the meaning of first proviso to Sub-section (1) of Section 400. And as such, an appeal would lie against such order

before the Building Tribunal. But in such appeal there could not be any scope of stay of such order except there is an order of demolition. Inasmuch as Sub-section (4) of Section 400 is confined to an order of demolition.

17. Thus there is no infirmity in the issue of the notice under Section 401. As observed above, if there are materials it is open to the Corporation to issue a notice under Section 401 to require the construction to stop.

18. In the present case it appears that the permission was granted on 12th January, 2000 and the notice under Section 401 of the Calcutta Municipal Corporation Act, 1980 was issued on 24th January, 2000. Whether the construction that was carried on is pursuant to the permission given or not, whether there was any deviation from the sanctioned plan or not is a question of fact. It cannot be decided by this Court.

19. In this case, notice under Section 401 having since been issued, it is open to the petitioner to take such objection to the said notice or apply for recalling etc. of the order to stop work and point out that there was no ground either for issuing the said notice or for initiating any proceeding under the provisions of the Calcutta Municipal Corporation Building Rules, 1990.

20. The petitioner, therefore, shall be at liberty to file objection or apply for recalling etc. without four weeks from date to the notice under Section 401. If it is so done, in that event, the respondent, the Calcutta Municipal Corporation shall give an opportunity of hearing to the petitioner and if it finds any unauthorised construction, in that event the respondent shall take appropriate steps under Section 400 or may drop the notice if it does not so find, as the case may be.

21. It may be noted that I have not entered into the merits of this case. The concerned authorities will decide the question according to their own wisdom and discretion, and according to loss.

22. The writ application is, thus, disposed of.

23. There will be no order as to costs.

24. All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.


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