Wo Bros. vs Commissioner, Corporation of Calcutta

Banerjee, J.—In these rules the Petitioners challenge the order passed by the Building Tribunal constituted under the Calcutta Municipal Act being dated March 24, 1976, read with April 24, 1976. The demolition of unauthorised construction was condoned on condition. There was an order dated September 27, 1975, by which the Building Tribunal condoned the demolition of unauthorised construction on condition that the Appellants in each appeals paid the penalty and sketch fees within one month from the date of determination by the Deputy Building Surveyor. The facts of the case in these 5 appeals are that the Building Inspector on inspection of the premises which are subject-matters of the appeals found the construction of a factory upto the roof level at premises of appeal No. 39 of 1974-75 and complete construction of a factory excluding the plastering and flooring work at the premises of appeal No. 49 of 1974-75 for which notices u/s 416 of the Act were served upon the Appellants of these two appeals for stopping any further work of construction. Thereupon a notice was served u/s 414(1) of the Calcutta Municipal Act with the copies of the precis containing the description of the unauthorised structure of the building rules referred to in the said order in respect of the disputed structure. The Deputy Commissioner heard all the demolition cases and came to a finding that all these constructions were raised recently and illegally and without any sanction of the Corporation in gross violation of the Building Rules. He, accordingly, passed the order for demolition of the unauthorised structures. He, further, directed that the demolition order would not be given effect to if the respective parties took steps u/s 371 of the Act regarding the passage and submitted plan for sanction of the disputed structures. Being aggrieved by the said order of the Deputy Commissioner, the Appellants, the Petitioners herein, preferred 5 appeals before the Building Tribunal. The appeals were allowed by the Building Tribunal on condition and the impugned order of the Deputy Commissioner was set aside and the demolition cases were dropped provided that the Appellants of such appeal paid the necessary penalties and sketch fees for their respective unauthorised construction in dispute within one month from the date of determination of the same by the D.B.S, The Deputy Building Surveyor thereupon fixed the sketch fees and penalties at Rs. 1,04,250 which on recalculation came to Rs. 78,250 in so far as the appeal No. 39 of 1974-75 was concerned. Similarly, in the other appeals the assessments were made on the basis of the resolution of the Corporation dated March 20, 1970, as laid down in the Corporation Budget and approved by the resolution of the Corporation. Being aggrieved by the fixation of the amount the Petitioners moved this Court under Article 227 of the Constitution and obtained the present rule. It must be made clear that the order of the Building Tribunal passed on September 27, 1975, is not challenged by any of the parties to this rule.

Mr. Dutt on behalf of the Petitioners in this rule contended, inter alia, that both the Deputy Commissioner and the Building Tribunal are statutory bodies and they cannot impose penalty not prescribed by the statute. It has, further, been argued by Mr. Dutt that the Deputy Commissioner of the Corporation of Calcutta has a power u/s 414 to demolish an unauthorised construction to Stand, but his discretion must be judicially exercised and not arbitrarily. It is argued by Mr. Dutt that in these cases the Building Tribunal directed that the unauthorised construction might stand on payment of penalty. The only penalty can be imposed by the authorities concerned u/s 542 of the Calcutta Municipal Act and not otherwise and as the Building Tribunal has fixed more than Rs. 1,00,000 as penalty, the fixation of the penalty cannot be allowed to stand. The order, according to Mr. Dutt, is bad to that extent.

Mr. P.N. Mitter on behalf of the opposite party contended, firstly, that the Commissioner has discretion in the matter of unauthorised construction and that discretion having been exercised by the Commissioner in a particular way it is not amenable under Article 227 of the Constitution of India unless it is found that the discretion is arbitrarily exercised. It is argued by Mr. Mitter further that the imposition of money in order to allow the unauthorised construction to continue to exist is only a term for exercise and the imposition of the conditional payment under the resolution of the Corporation is analogous to stay order passed by the Court. Mr. Mitter argued that Section 542 of the Calcutta Municipal Act had no application in the facts of this case. The penalty which may be imposed u/s 542 cannot be imposed by the Commissioner inasmuch as they are offences and are triable by the Municipal Magistrate in accordance with the Code of Criminal Procedure. The imposition of penalty, therefore, cannot come within the meaning of Section 542 of the Act.

In regard to the point Mr. Dutt contended that the Deputy Commissioner or for that matter the Building Tribunal cannot impose penalty more than what is provided u/s 542 of the Act. We are of the opinion that Section 542 of the Act does not apply in respect of the exercise of the discretion by the Deputy Commissioner. Section 542 of the Act is included in chap. 35, pt. VIII of the Calcutta Municipal Act. Chapter 35, pt. VIII provides for the penalty for offence committed under the Calcutta Municipal Act. In Section 537 it has been provided that whoever commits any offences by contravening any provision of any of the sections etc. may be punished with fine or imprisonment, as the case may be, which have been stated in the third column of the said table. Section 542 itself provides that if the erection of any new building is commenced without obtaining any permission required under this Act etc. the owner of the building shall be liable to fine etc. Section 542 itself, therefore, provides that an erection of the building without the permission as required under the Act is an offence. u/s 547 as it has been provided that every case of an offence shall be punishable with imprisonment or with the fine only in which the offender can be sentenced to pay a fine by the competent Court. We have referred only the relevant part of a particular section which provides an answer to Mr. Dutt''s contention that the Deputy Commissioner can impose fine in accordance with Section 542 only and not otherwise. It appears to us that the Deputy Commissioner has no power or jurisdiction to impose fine u/s 542 only and not otherwise. It appears to us that the Deputy Commissioner has no power or jurisdiction to impose fine u/s 542 of the Calcutta Municipal Act. Mr. Dutt contended that if that view is taken there will be a double jeopardy and violation of Article 21 of the Constitution of India. In our opinion, this contention cannot be upheld. A person who has committed an offence is personally liable for the commission and for such act he is liable under the Criminal Law of the law. If a person has erected an unauthorised structure in violation of the provision of the Calcutta Municipal Act, Section 414 gives the power to the Commissioner of the Corporation of Calcutta to direct the demolition of such structure. Section 414 has nothing to do with Section 542 of the Calcutta Municipal Act. On the other hand, in our opinion, u/s 414 an offending structure may be directed to be demolished, but u/s 542 the Court has no such power. The Court can only direct the offender who committed an offence to pay the fine as provided in the said section. The offending structure cannot be touched u/s 542 by the Court. That power is only given, in our opinion, u/s 414 to the Commissioner or the officer specially empowered after proper adjudication. We, therefore, hold that u/s 542 penalty cannot be imposed in a proceeding under, Section 414 or u/s 414A of the Municipal Act.

Next point urged by Mr. Dutt is that the exercise of discretion by the Deputy Commissioner or for that matter the Building Tribunal was arbitrary. It appears that u/s 414(3) of the Calcutta Municipal Act the Commissioner may order the demolition of the erection, alteration, addition or other works, or the making of the alteration. It has been held by the Special Bench of this Court in the case of Purusottam Lalji and Others Vs. Ratan Lal Agarwalla and Others, (para. 6) as follows:

We must, however, emphasise the importance of giving some indications of the reasons in the order. We, therefore, hold that the Commissioner has a discretion to order demolition or not to order demolition even in a case where the construction was unauthorised, but that discretion must be used bona fide and on proper materials and not on the extraneous ground, but upon the facts of each particular case. Having considered the matter from that point of view it appears to us that we cannot hold that the Commissioner has used discretion in view of the facts and circumstances of this case improperly or arbitrarily.

In the said case the impugned order of the Commissioner was in the following terms:

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 Resolution within one month from the date of communication of this order, the case may be dropped failing which the roof will be demolished.

While considering the legality of this finding of order the Special Bench held that the Commissioner has a discretion to order either to demolish or not to demolish the offending structure which has violated even the mandatory rules. In view of the judgment of the Special Bench it is clear that the discretion may be exercised by the Deputy Commissioner on certain condition as laid down. It appears that in the present case also the Deputy Commissioner and for that matter the Building Tribunal hearing the appeals against the order of the Deputy Commissioner imposed the condition as laid down by the Corporation''s resolution dated March 20, 1970. The resolution provides for penalty fees for unauthorised construction which would be allowed to stand or, in other words, the resolution provides for a guide-line for the exercise of the discretion by the Deputy Commissioner. This policy of laying down the fees cannot be said to be arbitrary and it applies in all cases where unauthorised construction is allowed to stand. In that view of the matter, in our opinion, it must be held that the order of the Building Tribunal to the effect that the offending structure will be allowed to stand if the Petitioners pay the penalty fees and sketch fees for all the unauthorised constructions within one month from the date of the order, is not arbitrary.

In the circumstances, therefore, the rules must stand discharged. There will be no order as to costs.

G.N. Ray J.

I agree.