Sabyasachi Mukharji, J. - (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--
"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 Resolutions within one month from the date of communication of this order, the case may be dropped failing which the roof will be demolished."
The petitioners thereafter made an application under Article 226 of the Constitution and a rule nisi was issued. The matter came up for hearing before Baner.iee, J. According to the learned Judge there was infringement of Rule 30 of Schedule XVI of the Calcutta Municipal Act, 1951 which could be relaxed under Rule 31. The learned Judge was of the view that it did not appear from the order of the Commissioner whether the unauthorised construction deserved relaxation under Rule 31 nor did the Commissioner take the approval of the Standing Building Committee when making the order of relaxation. In the aforesaid view of the matter the learned Judge was of the view that the order of the Commissioner could not be sustained and he accordingly quashed the order. The learned Judge however observed that the said order would not prevent the Commissioner from exercising the power under Rule 31 of Schedule XVI of the Calcutta Municipal Act in accordance with the law. An appeal was preferred from the said order and judgment of Banerjee. J. The appeal came up for hearing before the Division Bendh of this Court consisting of Sinha. J. (as his Lordship then was) and Sen, J. It was argued before the learned Judges of the appellate court that under Section 414 the Commissioner had a discretion in the matter and if the Commissioner had exercised the discretion such exercise of the discretion could not be and should not be interfered by this court The learned Judges were of the opinion that though this point was not taken before Banerjee, J. the appellants were entitled to urge this point as being a question of law. Their Lordships however were of the view that under Section 414 there was undoubtedly a discretion, but in respect of matters which involved violation of unrelaxable rules the Commissioner had no discretion and should always pass an order for demolition. The learned Judges referred to the decision of this court in the case of Pramila Sundari v. Corporation of Calcutta and to a bench decision in the case of Subhasini Nandi v. Corporation of Calcutta, (1955) 59 Cal WN 776. Their Lordships however felt that the view that their Lordships were inclined to take was in conflict with the division bench decision of this Court in the case of Yudhisthir Kumar Dutt v. Commr. of Corpn. of Calcutta, (1965) 69 Cal WN 249. In the aforesaid view of the matter their Lordships felt that two questions of importance arose, namely :--
"1. Under Section 414 of the Calcutta Municipal Act, 1951- has the Commissioner an absolute discretion to make or not to make, an order of demolition ? 2. Can he refuse to make an order, where there is an unauthorized construction infringing rules which are either-- (a) not relaxable under the provisions of the said Act or (b) are relaxable but have not been relaxed ?"
Accordingly their Lordships referred this appeal under Rule 1 of Chapter XXXIA of the Original Side of this Court. The question for our consideration is the scope and effect of Section 414 so far as it affects the power and discretion of the Commissioner.
(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 :--
"414. (1) If the Commissioner is satisfied-- (i) that the erection of any building-- (a) has been commenced without obtaining any permission required to be obtained by or under this Act. or (b) is being carried on or has been completed otherwise than in accordance with the particulars on which such permission was based, or (c) is being carried on or has been completed in breach of any provision contained in this Act or in any rules or by-laws made thereunder, or of any direction or requisition lawfully given or made under this Act or under such rules or by-laws, or (ii) that any alteration of, or addition to, any building or any other work made or done for any purpose in. to or upon any building, has been commenced or is being carried on or has been completed in breach of, or otherwise than in accordance with, any sanction granted under Section 387 in contravention of the provisions of Section 396 or 397. or (iii) that any alteration required by any notice issued under Rule 22 of Schedule XVI has not been duly made, he may, without prejudice to any action that may be taken under any other provision of this Act. by written notice require the person responsible to demolish such erection, alteration, addition or other work or to make the alteration, as the case may be, or to show cause why such erection, alteration, addition or other work should not be demolished or the alteration should not be made. (2) The Commissioner may issue a notice under Sub-section (1) notwithstanding the fact that the valuation of such building has been made under Chapter XI for the assessment of the consolidated rate. (3) If the person responsible fails-- (a) to demolish such erection, alteration, addition or other work, or to make the alteration, or (b) to show sufficient cause to the satisfaction of the Commissioner or an officer specially appointed by the Corporation with the approval of the State Government in this behalf as the case may be why such erection, alteration, addition or other work, should not be demolished, or the alteration should not be made, the Commissioner may order-- (i) the demolition of the erection, alteration, addition or other work, or (ii) the making of the alterations: Provided that a copy of the order shall be served upon the owner and the occupier thereof and no such action shall be taken until the expiry of thirty days from the date of the service of the said order. (4) Notwithstanding anything contained in the foregoing Sub-sections, no action shall be taken under this section in respect of any erection, alteration, addition or other work executed more than twelve years before the issue of the notice under Sub-section (1) : Provided that the onus of proving that the work was done more than twelve years previously shall lie on the person responsible. (5) In this section the expression "person responsible" includes the owner, the occupier and any other person who executes the erection, alteration, addition or other work or who is liable to make any alteration required by any notice issued under Rule 22 of Schedule XVI."
Section 414-A which was inserted by Section 99 of the Calcutta Municipal (Second Amendment) Act, 1964 provides that any person dissatisfied with the order of the Commissioner made under Sub-section (3) : of Section 414 may, within thirty days from the date of the order, present an appeal accompanied by a copy of the order to the Tribunal constituted under Section 391-B and the President of the Tribunal may stay the execution of the order for such period or periods as he may think fit or until the disposal of the appeal. Section 415 deals with demolition or alteration of work in certain other cases. It is not necessary for the present purpose, to set out the said sections. Section 537 of the Act provides for various penalties. It provides for the punishment of fine as well as imprisonment for contravention of the offences mentioned therein. Certain punishments for contravention of provisions of Schedule XVI have also been provided in the said section. Section 543 deals with the liability of fine for putting buildings to other than declared use. Section 544 provides for fine for using building for carrying on offensive trade without previous declaration. It is not necessary for the purpose of this application to deal with the said section. As mentioned hereinbefore Schedule XVI of the Calcutta Municipal Act deals with the rules as to the use of the building site and the execution of building works. Rule 30 of the said Schedule deals with the requirement of open space in rear of building, regulating the rear height. In Rule 31 power has been given for relaxation of certain provisions of Rule 30 to the Commissioner in certain specified contingencies and in certain manner. In this connection reference may be made to Section 388 referred to above.
(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 ?