- (1.) In this application, the petitioner has, inter alia, prayed for issuance of a Writ of or in the nature of Mandamus directing the respondents to set aside an order dated 29-11-96 passed by the Chairman of the respondent municipality, which is in the following terms : "1. The staircase may be allowed up to the floor of 2nd floor and this part may be covered with a roof-slab in continuation of the roof slab of 2nd floor. The staircase above the floor of the 2nd floor, already constructed by you, will have to be dismantled. As the load has been reduced in the staircase there will be no chance of damage in the staircase part2. The deviation in the staircase part from the sanctioned plan is minor in nature and it will not materially affect the ventilation. Hence, I allow this minor deviation in exercising my powers to relax the municipal rules in this respect." .
(2.) This writ petition has a chequered history. The petitioner allegedly constructed his residential house at premises No. F-5, School Road, Sedepur, consisting of one storeyed building. The private respondent completed the structure of new staircase and other structures at his premises to a height of more than their two storeyed building and upon protest as regards unsoundness of the structure by the petitioner, construction was stopped by the private respondent in July 1989. A written representation was made by the petitioner to the municipal authorities pointing out to them that the respondent allegedly had violated the building rules framed under the Bengal Municipal Act. Notice had been issued by the municipal authorities in terms of section 333 of the Bengal Municipal Act, directing the private respondent to stop all further constructions and not to make any construction in deviation of the sanctioned plan. Constructions had been stopped pursuant thereto by the respondent. However, the petitioner made several representations in the months of November and December 1989; and January 1990 asking the respondent municipality to demolish the said structure. Further representations were made on 26-2-90 and 11-5-90. The petitioner also filed all documents in support of his statement. Another representation was made on 22-8-90. The respondent No. 1, by a letter dated 3-9-90 fixed the date of hearing in the matter on 28-8-90 in his chamber. A writ application was filed by the petitioner, which was marked as C.O. No. 14031 (W) of 1990 and U.C. Banerjee as His Lordship then was) by an order dated 19-9-91 disposed of the said writ application, inter alia, directing the municipal authorities to consider the whole matter afresh without taking recourse to external aid of any of the parties and to deal with the matter in accordance with law and upon affording an opportunity of hearing to both the parties. The said order is contained in annexure 'F' to the writ application. Pursuant to the said order, an enquiry was made by a Engineer who was an employee of the municipality, relying on or on the basis whereof an order was passed by the Chairman on 25-4-92. Questioning the legality or validity of the said order, another writ application was filed in May 1992 which was marked as C.O. No. 6169 (W) of 1992. R. Pal, J., by a detailed judgment, which is contained in annexure 'I' to the writ application considered the same and, inter alia, held : "Even otherwise the decision was to be taken by the Municipal Authorities themselves. In this case the Chairman appears to have not applied his mind independently to the issue and has merely acted as a rubber stamp to the views of the Engineer. In any event the Engineer' report in so far as it relates to the illegality of the construction cannot be supported either legally or logically. It has been rightly contended by the writ petitioner that the issue to be decided was not any alleged deviation by the petitioner but the deviation or illegality committed by the private respondents in raising the construction in question. The petitioner has vehemently denied that there was any illegality or deviation as far as he was concerned and indeed he has never been charged by the authorities or by the private respondents with that. Assuming that the petitioner had deviated in making the construction on his plot, this cannot in any way justify the deviation or the illegality in the private respondent' construction. It was incumbent on the authorities to have addressed their mind to the legality of the private respondent' construction alone and to test the same against the provisions of the Act and Rules as well as the plan sanctioned for such construction. As observed by the Supreme Court in A. R. Antuley v. R. S. Nayak, AIR 1988 SC 1531 (supra) an allegation of legal infraction must be investigated in accordance with law and procedure established. Public confidence in public administration should not be eroded. One wrong cannot be remedied by another wrong.It was for the Chairman, after giving the parties a copy of the report of the Engineer to call them for a hearing and then decide the matter. In not making available a copy of the report to the petitioner prior to the taking of the decision, the Chairman must be held to have acted in violation of the principles of natural justice." .
(3.) The learned Judge further held that the Chairman ought to have given a copy of the report of the Engineer and heard the parties in compliance of the principles of natural justice. As regards contention raised on behalf of the respondent regarding applicability of Section 330 and Rule 39 of Schedule VI of the Bengal Municipal Act, the learned Judge, inter alia, held that the Chairman had not passed any order relaxing the provision of the rule. It was, however, held :"The power of relaxation, in any event, is one which has to be exercised bona fide giving reasons therefor.The learned Judge also held : "For example if the infraction is of a minor nature or has not in any way affected the sanitation or ventilation and the amenities of the building in question and other adjoining premises . The Chairman has not come to any finding regarding the deviation nor whether such deviation is relaxable in the circumstances of the case." .;