Loknath Goenka vs Municipal Commissioners of the Samastipur Municipality and Others

Nagendra Prasad Singh, J.—This writ application has been filed on behalf of the petitioner for quashing a notice dated 28th November, 1973 issued by the Executive Officer, Samastipur Municipality saying that the petitioner has constructed a platform over the drain and a portion of Road belonging to the Municipality, which has caused inconvenience. By that very notice the petitioner was asked to dismantle the same within three days of the receipt of the notice failing which the Municipality would get it dismantled and removed and the costs therefore would be realised from the petitioner. A copy of the said notice is Annexure 1 to the writ application.

In the writ application it has been stated that the petitioner filed for sanction, a plan of his house and shop to the respondent-Municipality. In that plan the platform and the projections over the road were shown. In due course this plan was sanctioned. No objection was taken at any stage during the constructions of the platform and projections in question and after a lapse of several years now the aforesaid notice has been issued, which is in contravention of the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter to be referred to as the Municipal Act). This writ application was filed in this court on 6th December, 1973 and was admitted on 10th December, 1973. At the time of admission, the operation of the notice (Annexure 1) was stayed during the pendency of the writ application. The respondents were also restrained from demolishing the platform and the projections of the petitioner during this period.

A counter-affidavit has been filed on behalf of the respondent-Municipality (respondents Nos. 1 and 2) saying that the Municipal Board of the Municipality in question received public complaints regarding the obstructions on public road and then it was unanimously resolved that platforms constructed over roads and drains which were causing inconvenience to public should be removed forthwith, and in pursuance of that resolution notices were issued to different persons including the petitioner. It has been further stated that after the issue of the notice, the petitioner himself removed the platform before 4th December, 1973, i.e., before filing of the writ application in this Court. It has been asserted that it was well within the authority of the Municipality to issue the notice in question to the petitioner.

At the time of hearing, an objection regarding the maintainability of this application was also taken in view of the new Article 226, as has been substituted by the Constitution (Forty-second Amendment) Act 1976 (hereinafter to be referred to as the Constitution Act). Mr. B. C. Ghose appearing for the respondent-Municipality has urged that it should be held that this application has abated in view of Sub-section (2) of Section 58 of the Constitution Act.

Sub-section (2) of Section 58 of the Constitution Act provides that a writ application which was pending on the appointed date, i.e., on 1st February, 1977, is to be heard and disposed of in accordance with new Article 226 as substituted by the aforesaid Constitution Act. It also provides that any application which would not have been admitted if on the date it was admitted this new Article would have been in force, then such application shall abate. According to the respondents, even if the grievances made on behalf of the petitioner are taken on their face value, they are not covered by any of the three clauses of Article 226(1) inasmuch as there is no question of enforcement of any right conferred by provision of Part III of the Constitution nor there is any question of contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder so as to attract Clause (b) of Article 226(1). The petitioner, according to the respondents, can also not invoke the jurisdiction of this Court under Article 226(1)(c) as no illegality in any proceeding before any authority constituted under any of the provisions referred to in Sub-clause (b) has been pointed out. It has been further submitted that utmost that can be argued on behalf of the petitioner is that the plan showing the platform and projections having been sanctioned by the Municipality, it could not have been demolished without giving an opportunity to show cause to the petitioner, but that will neither amount to a contravention of any statutory provision as mentioned in Clause (b) of Article 226(1) nor an illegality being committed by any of the authorities constituted under any of those provisions, in any proceeding pending before him.

Under Chapter V of the Municipal Act, different provisions have been made regarding laying of the roads, projections over road, drains, erection of platform, erection of building after sanction of the plan, removal of unauthorised constructions over private and public land and penalties for such contravention. Different sections of that Chapter have been put under three sub-heads; Sections 164 to 185 under sub-head ''Roads'', Sections 186 to 195 under sub-head Buildings and Sections 191 to 203 under sub-head ''Removal of Encroachments on roads, house-gullies and property of the Commissioners''. According to the petitioner, a plan was filed in accordance with Sections 186 and 187 of the Municipal Act on his behalf showing these platforms and projections along with the main building, for sanction before the Municipality and they were duly sanctioned in accordance with Section 188. The fact that in the plan the platform as well as projections were shown over the drain and road does not appear to be in dispute. The petitioner asserts that once any such sanction is given u/s 188, no further action can be taken in respect of constructions which are covered by the sanctioned plan even if they may be in contravention of the provisions of the Municipal Act or the rules or bye-laws framed thereunder. Reliance in this connection was placed on Section 191 of the Municipal Act which is as follows:

"A sanction given or deemed to have been given u/s 188 shall exempt the person to whom the sanction is given or deemed to have been given from any penalty or consequence to which he would otherwise be liable u/s 174, 192 or 193, but shall not operate to relieve any person from the obligation imposed by Section 179 to obtain separate sanction for any structure referred to therein."

What is the effect of Section 191 and to what extent it protects the right of a citizen who has constructed any building although in accordance with the plan sanctioned by the Municipality but in contravention of certain bye-laws or rules of the Municipality, was examined in the case of Kashi Prasad Kataruka Vs. Bibi Allay Fatma and Others, and in that connection it was observed as follows:--

"It is manifest that the word ''sanction'' in Section 191 must be construed as a de facto sanction and not necessarily a lawful sanction in the context of the language of that section. The effect of Section 191 is that the Municipality has no power to prosecute the owner of the building illegally erected or to demolish such a building or to stop the erection of such a building once the construction of the building has commenced. It is, therefore, manifest that the illegality of the sanction does not make it void or nullity; such a sanction is revocable by the Municipality before the owner starts construction of the house on the basis of the illegal sanction. But once the owner acts upon the plan and starts construction the sanction becomes irrevocable, the stage for a revocation is gone and a ban is imposed upon the Municipality from taking recourse to any remedies provided u/s 192 or 193."

In my opinion, the aforesaid judgment of this Court is not of much help to the petitioner inasmuch as in the aforesaid judgment a question had arisen about taking action under the provisions of the Municipal Act in respect of a building which had been constructed on the basis of a sanctioned plan, but in violation of bye-laws of the Municipality concerned, on a private land, not on a land belonging to the Municipality. I have already pointed out that Sections 186 to 195 deal with sanction, construction and demolition of building erected on private land. Section 193 says in clear and unequivocal terms that if any illegal erection or construction of a building is discovered, an action has to be taken under that section within 15 days from the date on which information is received and after 15 days of such contravention, in view of the proviso, no action can be taken under that section. Apart from that, Section 191, as referred to above, itself exempts such person from all the consequences to which he may be otherwise liable if he has got the plan sanctioned although that may be in contravention of some bye-law or rule of the Municipality. So far as encroachments, constructions on road or properties belonging to the Municipality are concerned, law on that point stands on a different footing. Those cases are governed by Sections 179 and 180. Section 179 prescribes that projections over road or drain can be made only after the Commissioners have given written permission to the owners or occupiers of the building. In view of Section 180, no platform is to be erected or extended over any public road or drain without the previous sanction of the Commissioner. Under Sub-section (2) of Section 180, a licence has to be taken by the owner of every platform constructed on any such public road or drain, which is to be renewed every year. Section 196 vests power in the Commissioners to issue notice requiring any person to remove any building or any other obstructions or encroachment which he may have erected on any public drain, house-gullies or property of the Municipality. u/s 197, the Commissioners may issue notice requiring the owner or occupier of any house to remove "any projection, obstruction or encroachment erected or placed against or in front of such house, if the same overhangs the road or juts into or in any way projects or encroaches upon or is an obstruction to the safe and convenient passage along any house-gully, or obstructs or projects, or encroaches into or upon any public drain or aqueduct in any road". u/s 198, a Magistrate, on an application of the Commissioners, may order any such obstruction, encroachment or projection to be removed, if the person on whom notice has been issued fails to comply within eight days of the receipt of the same. A relevant fact to notice is that in none of these sections any limitation has been prescribed after which no such action can be taken. Section 191 which, according to the petitioner, gives immunity after the plan is sanctioned, itself exempts the cases covered by Section 179. In my opinion, under the different sections a distinction has been drawn between unauthorised constructions on one''s own private land and the constructions made on the land of the Municipality and it has a rational basis. So far as the construction on one''s own private land is concerned, the Municipality is stopped from taking any action on rule of estoppel having sanctioned the plan, but so far as the construction over the road or public drain and lands of the Municipality is concerned, Section 191 of the Municipal Act is neither applicable nor it gives any protection to them. Any person making such constructions has to obtain a written permission as contemplated by Section 179 in respect of projection on the read and a licence u/s 180 for making erection of platform over public road and drain, in absence whereof actions under Sections 196 to 198 of the Municipal Act can be taken. In my opinion, the principle laid down in the aforesaid judgment of this Court in Kashi Prasad Kataruka Vs. Bibi Allay Fatma and Others, is not applicable in cases of constructions or projections made over public drain, public road or lands belonging to the Municipality,

It was then submitted on behalf of the petitioner that even if it is held that it is open to the Municipality to take actions under Sections 196 and 197 of the Municipal Act for removal of such encroachments, they can do it only after observing the rule of principle of natural justice, i.e., only after giving an opportunity to the petitioner to show that the constructions in question are not unauthorised or in contravention of Section 179 or Section 180 of the Municipal Act and in that connection it was also pointed out that if any such opportunity would have been given, then the petitioner could have shown that he had obtained permission from the Municipality and he was also paying fee for the platform in question. In support of the contention, reliance was placed on a Bench decision of this Court in Bishwanath Prasad Vs. The Municipal Board, where a question had arisen for consideration as to whether before an unauthorised construction is demolished u/s 198 of the Municipal Act, the person concerned is entitled to be heard or not. In that connection different sections were examined and it was pointed out that although none of the sections specifically mentions that before the constructions are demolished or removed the person concerned is to be heard, but such requirement was implicit in those sections. While repelling the argument made on behalf of the Municipality that Section 198 does not contemplate any such notice, it was observed as follows:--

"If the said contention is accepted, it has to be held that at no stage the person who is disputing the correctness of the assertion made on behalf of the Commissioners is to get an opportunity to show that he has not made any encroachment on any parts of the Municipal land. Although the sections in question do not say in so many words, yet in my opinion, the requirement to show cause is implicit in those sections specially u/s 198. The Magistrate has to issue notice to the person against whom he proposes to pass an order under that section and in case any show cause is filed in pursuance of the said notice it is incumbent on the Magistrate concerned to hear the parties in question, to record a finding on the issue. This requirement has to be fulfilled, otherwise a person aggrieved can legitimately urge that such orders are illegal having been passed in breach of the principles of natural justice."

In my view, this contention made on behalf of the petitioner is well founded. It is difficult to conceive that a construction according to the sanctioned plan can be demolished even without affording any opportunity to the person concerned to show cause that the construction is not in contravention of any of the provisions of the Municipal Act or the rules and bye-laws framed thereunder.

The next question which arises for consideration is as to whether under the new Article 226 a person can make a grievance about the breach of principles of natural justice which is not a statutory law in the literal sense. According to the counsel appearing for the respondents, even if the petitioner was entitled to be heard, there being no specific provision to that effect in the Act, the petitioner is not entitled to relief under Clause (b) or Clause (c) of Article 226(1) of the Constitution.

Clause (b) of Article 226(1) reads as follows:--

"For the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder."

In this Clause (b) the words ''order, rule'' will include only statutory orders and rules or will include even administrative orders issued in exercise of the executive powers of the State under Article 162 of the Constitution or rules which are not statutory but have acquired the force of law, is not free from doubt. But, in the facts and circumstances of the present case, in my opinion, this point need not be decided. In the present case this opportunity to show cause is not solely based on principles of natural justice, but in view of the aforesaid Bench decision of this Court it has to be read by necessary implication in Section 198 of the Municipal Act. If it is accepted that u/s 198, before the Magistrate concerned orders demolition of the constructions in question, he has to give an opportunity to show cause to the person concerned, then any breach of this procedure will amount to breach of the provision of Section 198 itself so as to attract Clause (b) as well as Clause (c) of Article 226(1), if the injury caused by such contravention or breach is of substantial nature or has resulted in failure of justice. In my opinion, it cannot be urged that if a statutory authority constituted under the Act passes an order in contravention of Section 198 of the Municipal Act, ordering demolition of the house or constructions of a citizen, it will not amount to an injury of substantial nature or will not result in substantial failure of justice.

Now the question is that in the facts and circumstances of the present case, to what relief the petitioner is entitled. So far as the platform which was constructed on behalf of the petitioner is concerned, it has been asserted on behalf of the respondents that it has already been demolished. There is not specific denial. I am inclined to accept that the platform has already been demolished by the petitioner himself in view of aforesaid notice (Annexure 1). This may be under some threat, but if the petitioner himself has demolished, he is not entitled to any relief before this Court. Apart from that, from the receipts produced by the petitioner himself it appears that he was paying fees for occupation of the platform and there was a clear stipulation that it could be removed any time. Of course, the petitioner is entitled to have some sort of platform which may be used for access to his house in question, if it is otherwise not possible to approach. So far as the question of demolition of the projections made on road by the petitioner on the basis of the sanctioned plan is concerned, it is only imperative on the part of the authorities concerned to proceed in accordance with the provisions of Sections 196, 197 and 198 of the Municipal Act. If they want to demolish the same, then a notice should be given to the petitioner to show cause, in absence whereof it will amount to contravening the provision of Section 198 of the Municipal Act itself.

In the result, the application is allowed in part to the extent indicated above. In the circumstances of the case, there will be no order as to costs.

B. S. Sinha, J.

I agree.