Smt. Halsi Devi Sharma and Others vs Kolkata Municipal Corporation. and Others

Harish Tandon, J.—This revisional application is directed against the judgment and order dated 25.11.2005 passed by the Municipal Building Tribunal, Kolkata Municipal Corporation in BT appeal No. 7 of 2003 whereby and whereunder the petitioner was directed to demolish the portion specified therein.

The petitioner being the owner of the premises No. 32/4/1F, Chandi Ghosh Road, Kolkata - 40 submitted a plan to the Kolkata Municipal Corporation for due sanction for the purpose construction of a three-storied building at the said premises. Kolkata Municipal Corporation, the opposite party No. 1 herein duly sanctioned the said plan vide BS Plan No. 61 dated July 4, 2001.

Subsequently the opposite party No. 1 initiated a proceeding against the petitioners u/s 400(1) of the Kolkata Municipal Corporation Act 1980 as the petitioner has made certain unauthorized construction in deviation of the sanction plan.

The Special Officer (Building) of the Kolkata Municipal Corporation found that there has been an additional storey constructed by the petitioners and also a varanda on the east, west and north of the said building hanging over the open space from first, second and third floor. In addition thereto, it was further observed that the petitioners have also constructed RT shed in the open space in clear contravention and / or deviation from the sanction plan. After making the aforesaid observation the Special Officer (Building) passed an order of regularization of the additional storey constructed by the petitioners upon payment of penalty but directed the petitioners to demolish the varanda on each floor as well as the said RT shed. The said order was carried in appeal at the instance of the petitioners which was ultimately dismissed by the impugned order.

Mr. L.C. Behani, learned Senior Advocate appearing for the petitioners submits that during the pendency of the appeal before the appellate authority the petitioners have complied a part of the order passed by the Special Officer (Building) by demolishing the RT shed which encroached the front open space of the said building. He further submits that the varandas on each floor cannot be demolished as it would materially affect the stability of the structure and the opposite party No. 1 should have regularized the aforesaid construction by payment of penalty.

He strenuously argues that even the construction of the varanda is taken to be made in contravention of the sanctioned plan, if the area of the said varandas are considered against the total Floor Area Ratio (FAR) sanctioned by the opposite party No. 1, it would come at the minimal and should be regularized upon payment of penalty and placed reliance upon a judgment of the apex court in case of Rajatha Enterprises Vs. S.K. Sharma and Others, . He strenuously argues that the vital documents have not been supplied to his client which have been relied by the Special Officer (Building) and thus the concerned authority has acted in breach of the principle of natural justice and relies upon a judgment of this court in case of Laddu Gopal Bajoria and Another Vs. The Kolkata Municipal Corporation and Others,

Mr. Alok Kr. Ghose, learned Advocate appearing for the Kolkata Municipal Corporation vehemently submits that the regularization of the deviation from the sanctioned construction is an exception to the normal rule which does not confer power upon the erring person to claim his right thereupon and placed reliance upon a judgment of the apex court in case of Friends Colony Development Committee Vs. State of Orissa and Others, which was applied and accepted in case of Mahendra Baburao Mahadik and Others Vs. Subhash Krishna Kanitkar and Others,

He submits that the right to property does not include right to make construction in deviation of the sanctioned plan and placed reliance upon a Division Bench judgment of this court in case of CMC & Anr. Vs. Abed Hossain reported in 2001 (1) CHN 4. He vehemently submits that the Supreme Court in case of Pratibha Co-operative Housing Society Ltd. and another Vs. State of Maharashtra and others, deprecated the tendency of making unlawful construction and unauthorized encroachment and directed the concerned authorities to deal with the same with firm hand. He says that the authority has discretion in passing a decision of demolition and not retention thereof and such discretionary order should not be interfered by the writ court by placing reliance upon a judgment of the apex court in case of Bhikhubhai Vithlabhai Patel and Others Vs. State of Gujarat and Another, , Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, , Suresh Estates Pvt. Ltd. & Ors Vs. Municipal Corporation of Greater Mumbai & Ors. reported in (2007) 14 SCC 439 and an unreported judgment delivered by the Division Bench of this court in case of Municipal Commissioner, the KMC & Ors. Vs. Kedarnath Bansal & Ors. decided on 15th September 2008 in APO No. 78 of 2006

Having considered the respective submissions, admittedly, there is an unauthorized construction in clear contravention to the sanctioned plan. It appears from the finding made by the Building Tribunal that the petitioners themselves approached to the Kolkata Municipal Corporation and intimated that there has been a deviation from a sanctioned plan. There was an inspection by the engineer who prepared a demolition sketch map to suggest the demolition of the unauthorized construction undertaken by the petitioners in deviation of the sanctioned plan. The precis prepared suggests that the petitioners are guilty of constructing an additional storey and have raised the height of the building which was originally sanctioned. It is further reported that the petitioners have made an RT shed in the front open space and have also constructed overhanging varandas on each floor in the east, west and northern side of the building.

One can find from the order passed by the Special Officer (Building) that the petitioners conceded to such unauthorized construction and prayed for retention thereof. The Special Officer (Building) allowed the prayer for retention of the unauthorized construction by which an additional storey is constructed upon payment of the requisite fees and penalty but have directed to demolish the varandas and the RT shed. Even the Building Tribunal did not exercise its power but simply affirms the order of the Special Officer (Building). The review application was also dismissed by the Building Tribunal.

There is no dispute to the proposition that if the authorities by exercising the discretion vested in it, passed an order, the revisional court should not interfere with such discretionary order. It is also equally true that the discretion should be exercised rationally and within the permissible statutory limits and if the court finds any of such non adherence, it can invoke the jurisdiction to interfere with such discretionary order.

To this proposition the judgment relied upon by Mr. Ghose still holds the fields and are the guiding factors. In case of Indian Railway Construction Pvt. Ltd. (supra) the apex court was considering the scope of the judicial intervention in the matter of the administrative decisions and held :

One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. and Others Vs. Renusagar Power Co. and Others, ) At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.

The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 ALL ER 935 : 1985 AC 374 (commonly known as CCSU case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income Tax, Bombay and Others Vs. Mahindra and Mahindra Limited and Others, The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book Applications for Judicial Review, Law and Practice thus:

There is a general presumption against ousting the jurisdiction of the courts so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government''s claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney-General''s prerogative to decide whether to institute legal proceedings on behalf of the public interest.

(Also see Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 : (1968) 1 ALL ER 694.)

The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above: like illegality, irrationality and procedural impropriety. Whether the action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.

The famous case commonly known as "The Wednesbury case" Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 ALL ER 680 (CA) is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.

Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p. 229 : All ER pp. 682 H-683 A). It reads as follows:

It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ''unreasonable'' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ''unreasonably''. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.

Lord Greene also observed: (KB p. 230 : All ER p. 683 F-G)

... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable.... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.

(emphasis supplied)

Therefore, to arrive at a decision on "reasonableness" the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.

In Bhiku Bhai Vithla Bha Patel (supra) the apex court was dealing a matter where the legislature empowers the state government to sanction the draft development plan with further power to return the draft development plan and regulation, as the case may be to the authorized officer for modification thereof. Such power was considered to be a conditional power and not an absolute power to be exercised by the state government which is not the case in hand. The point in issue here is whether the Special Officer (Building) as well as the Building Tribunal could stand to the legal parameter in passing an order for demolition of a minor portion of the unauthorized construction after having exercised the discretion to allow the retention of the major portion of unauthorized construction. Section 400 of the Kolkata Municipal Corporation confers power upon the Municipal Commissioner to pass an order directing the demolition of the construction made contrary to the sanctioned plan. It would be profitable to quote section 400 of the Kolkata Municipal Corporation Act 1980 which reads thus :

Section 400: Order of demolition and stoppage of buildings and works in certain cases and appeal.- (1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order:

Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:

Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under Sub-section (3).

On perusal of the said provision the power is vested upon the authority to pass an order for demolition. Since the competence of the authority to pass an order for retention is not the subject matter before me and as such I refrain myself from dealing such aspect in this revisional application. Thus it cannot be said that the authority has no power to pass an order of demolition. The said power has been exercised by the authorities.

As indicated above, the petitioners themselves have admitted to have made unauthorized construction before the Special Officer (Building) as well as the Building Tribunal. What has sought to be contended is that the authority should pass an order of retention in stead of demolition of the unauthorized construction.

There is no hesitation that it is within the domain of the statutory authority to exercise the discretion and its choice which cannot be said to be illegal or beyond the legal sphere to warrant the interference of this court in revisional jurisdiction.

The Division Bench of this court in the unreported judgment rendered in case of Kedarnath Bansal (supra) in following words :

The same has view has been reiterated in the case Mahendra Baburao Mahadik Vs. Subhash Krishna Kantikar, reported in AIR 2005 SCW 1579. In the case Pratibha Housing Society Ltd. & Anr. (supra), the apex court has repeated the principle of judicial review in the term that the high court should not exercise the power as an appellate court over the administrative decision. In the case M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, , it is the view of the apex court that judicial discretion cannot be exercised, which will encourage illegality and/or perpetuate an illegality and unauthorized construction if it is illegal cannot be compounded and the judges wearing the robes of judicial discretion should not pass a decision on personal predilection and personal dispositions. It is also the decision of this court in the case Ziauddin Vs. Mayor-in-Council (Bildg.) reported in (2001) 1 CHN 5, wherein paragraph 12, it is held that "if a building has been erected without sanction, such erection being an illegal erection, no right to property flows therefrom.

Now, we come to the present case in hand. It is not contended before us that any fundamental freedom is affected, which has already been discussed earlier. Hence, there is nothing to consider the principle of proportionality doctrine having regard to this judgment passed in the case G. Ganayutham (supra). No contention could be accepted on the fact of the case that decision of the Appellate Tribunal confirming the decision of Special Officer (B) was illegal or vitiated by procedural impropriety. So far as irrationality point as raised about finding of the tribunal to reach a decision of demolition of unauthorized construction, it is not such that no sensible person who weighed the pros and cons could not have arrived at the said decision, as it is a case of illegal unauthorized construction. The impugned decision in writ application is also not in outrageous difference of logic. Hence, the Wednesbury test also could not be applied on the admitted facts having regard to the explanation of such principle in the case. Ganayutham (supra) in para 31, sub-para 1 wherein the court expressed views in the following language :

The current position of proportionality in administrative law in England and India can be summarized as follows:

(1) to judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at the court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator this is the Wednesbury test.

As such, application of secondary review principle, which should be in the angle of Wednesbury Arbitrariness has no application herein to undo the action of the Appellate Tribunal, where he confirmed the decision of Special Officer (B) who by statute is authorized to exercise his discretion and his choice by passing the decision of demolition of unauthorized construction and not retention thereof, being the alternative choice, was opened to him. The court cannot substitute the choice to that of the statutory authority by passing a decision of retention even applying the Wednesbury test.

There is a fundamental distinction between the order passed in exercise of the discretion vested in the statute and an order passed in violation of the principle of natural justice.

Mr. Behani, learned Senior Advocate tried to impress this court that there has been a violation of the principle of natural justice in not supplying the material documents relied upon by the authorities. From the length and breadth of the petition as well as from the perusal of the orders passed by the different administrative authorities, my endeavour has failed to find out any whisper relating to the violation of principle of natural justice. In absence of expressed and lucid and/or elaborate statement relating to the violation of the principle of natural justice the court should not embark to decide such issue on the basis of stray argument made at the bar. In case of Laddu Gopal Bajoria (supra) this court clearly held that the authorities violated the principles of natural justice in not submitting the certified copy of the sanctioned plan or precis which forms basis of an order of demolition passed u/s 400(1) of the Kolkata Municipal Corporation Act 1980. In case of Rejatha Enterprises (supra) relied upon by Mr. Behani the apex court was considering the permissible FAR under the relevant statute as well as the permissible limit of deviation. In the instant case the authorities have already, in exercise of the discretion, allowed the retention of the additional floor and thus it cannot be said that the said judgment of the apex court has any applicability in the instant case.

Thus I do not find any merit in this revisional application. The same is hereby dismissed.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.