Full Judgment
In the High Court At Calcutta Civil Appellate Jurisdiction In Appeal from its Constitutional Writ Jurisdiction Original Side APOT123of 2015 GA1029of 2015 WP704of 2012 Saraf Infra Projects Ltd. & Anr. -vs. The State of West Bengal & Ors. Before : The Hon’ble The Chief Justice Manjula Chellur & The Hon’ble Justice Arijit Banerjee For the Appellants For the State : Mr. Shakti Nath Mukherjee, Sr. Adv. Mr. Tarique Quasimuddin, Adv. Ms. Sanchita Chaudhury, Adv. : Mr. Sadhan Roychowdhury, Sr. Govt. Adv. Mr. T. M. Siddiqui, Adv. For the KMC : Mr. L. K. Gupta, Addl. A. G. Mr. Biswajit Mukherjee, Adv. Mr. Gopal Chandra Das, Adv. Mr. Debangsu Mondal, Adv. Mr. A. Dey, Adv. For the Union of India : Mr. Somnath Bose, Adv. Mr. Jatinder Singh Dutt, Adv. Heard on :
01. 03.2016, 14.01.2016, 28.01.2016, 23.02.2016, 17.03.2016, 29.03.2016 CAV On :
29. 03.2016 Judgment On :
19. 08.2016 Arijit Banerjee, J:(1) The writ petitioners/appellants approached the Learned Single Judge by filing WP No.704 of 2012 seeking a declaration that Sections 628 and 629 of the Kolkata Municipal Corporation Act, 1980 (In short the ‘KMC Act’) are ultra vires the Constitution of India and for a writ of prohibition prohibiting the respondent No.4 (Union of India) from insisting on exercising its right under the said Sections. By a judgment and order dated 20 March, 2015, the learned Single Judge dismissed the writ application by holding that the reliefs sought in the writ petition including the declaration that Sections 628 and 629 of the KMC Act are ultra vires the Constitution of India cannot be granted. Case of the appellants:(2) On the basis of an application dated 8 January, 2008 under Section 393 of the KMC Act, a building permit was issued in favour of the appellant company for construction of a multi-storied building for hotel purpose on Premises No.5/1 Munsi Prem Chand Sarani, Calcutta. The building plan was sanctioned on 16 April, 2009. Prior to obtaining the said sanction the appellants obtained clearance from various Departments and authorities, namely, Ministry of Tourism, Govt. of India, Ministry of Commerce and Industry, Govt. of India, the West Bengal Pollution Board Control, Kolkata Police, West Bengal Fire Services, International Airport Authority, Bharat Sanchar Nigam Limited, and Survey of India. While according the sanction to the building plan, the KMC did not ask for any permission under Sec. 628 of the KMC Act. (3) The appellants completed a 14 storied structure and started fitment work and for that purpose incurred expenditure in the region of Rs. 180 crores. Learned Counsel for the appellants contended that there exists total confusion between KMC and the Army Head Quarters, Bengal Region, as regards the identity of the area in respect whereof the provision of Sec. 628 of the KMC Act applies. Since 1984, when the KMC Act, 1980 became operative, till date there has been no clarification or understanding between the KMC and the Army Authorities in this regard. (3) When the appellant company applied for beautification by barren land belonging to the Defence Department in front of the proposed hotel, the Army Authorities started raising objection with regard to the building constructed by the appellants company. (4) Learned Counsel for the appellants submitted that the short question that arises for consideration is whether or not the absence of permission as contemplated by Sec. 628 of the KMC Act will invalidate the building plan duly sanctioned by the KMC and consequently whether the construction already completed in accordance with the plan will require demolition under Sec. 629 of the KMC Act. Secs. 628 and 629 of the KMC Act provide as follows:“S.
628. Sanction of Central Government required for erection of masonry building.- The Corporation shall not give or be deemed to have given permission to erect a masonry building in that part of Hastings which is included in Kolkata unless and until the sanction of the Central Government has been obtained; and such sanction shall not be applied for unless the plan of the building and the site-plan of the land are approved by the Commissioner of Police. S.
629. Demolition or alteration of buildings erected without such sanction._ (1) If the erection of any masonry new building in that part of Hastings which is included in Kolkata is, after the commencement of this Act, commenced, carried on or completed without obtaining the sanction of the Central Government, the Municipal Commissioner shall, if requested by the General Officer Commanding the Presidency District to do so,_ (a) by written notice direct the owner to demolish or alter the building, or (b) himself cause the building to be demolished or altered at the expense of the owner. (2) No person shall be entitled to any compensation on account of such demolition or alteration.”
. (5) Before us, the appellants did not urge the point of vires of the said Sections of the KMC Act. The short point urged by the appellants is that in the absence of notification under Sec. 3 of the Works of Defence Act, 1903 (hereinafter referred to as ‘1903 Act’), Sections 628 and 629 of the KMC Act would not operate and cannot be implemented so as to affect the appellants’ right to property. Sec. 3 of the 1903 Act provides as follows:“ S.
3. Declaration and notice that restrictions will be imposed._ (1) Whenever it appears to the (Central Government) that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. (2) The said declaration shall be published in the (Official Gazette) and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in Section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality. (3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.”
. (6) Learned Counsel submitted that there is no dispute that no declaration under Sec, 3(1) has been made by a duly authorised officer of the Central Government. Similarly, there is no dispute that there is no publication of any declaration in the Official Gazette together with specification of the area with reference to a sketch plan as required by Sec. 3(2) of the 1903 Act. (7) Sections 4 and 6 of the 1903 Act confer power upon the Central Government to do certain acts only after publication under Sec. 3(2) of a declaration under Sec. 3(1) of the said Act. Sec. 9 of the Act provides for notice to be issued to all persons interested in the land in question. Sec. 12 provides for enquiry and award by the Collector. Section 6(2) provides that powers conferred by sub-Sec. (1) of Sec. 6 shall not be exercised before the making of an award under Sec. 12 excepting cases of emergency as contemplated by sub-Sec. (3) of Sec.6. Sub-Section (1) of Section 6 confers power on the Central Government to, inter alia, demolish any building or construction made on the notified land. (8) Learned Counsel submitted that it is an admitted position that the protection of the places and works of defence and ensuring their safety and security is within the exclusive jurisdiction of the Central Government under entries 1 to 4 of List I of the 7th Schedule to the Constitution of India. In particular, entry 4 pertains to ‘Naval, Military and Air Force Works’. In this connection reference was made to Art. 246 of the Constitution of India which provides as follows:“Art.
246. Subject matter of laws made by Parliament and by the Legislatures of States._ (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. (2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1),the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule. (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.”
. (9) Learned Counsel also referred to Art. 254 of the Constitution of India which provides as follows:“Art.
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States._ (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
. (10) Art. 372 (1) of the Constitution provides that notwithstanding the repeal by the Constitution of the enactments referred to in Art. 395 but subject to the other provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent Authority. (11) Learned Counsel submitted that it is true that the Secretary of the Defence Department has determined that the plot in question is within the Hastings area. However, such determination by the defence Secretary could be made only after declaration under Sec. 3 of the 1903 Act and publication thereof in accordance with the said Section. Sub-sections (1) and (2) of Sec. 3 read together make it abundantly clear that the question of imposing any restriction can only arise only when there is publication of a declaration together with publication of a sketch plan and not otherwise. In this connection Learned Counsel relied on the well-known decision of the Privy Council in the case of Nazir Ahmad-vs.-King-Emperor, AIR 1936 PC253 in support of his submission that when a statute confers a power on an Authority to do a certain thing in a certain way, the thing must be done only in that way or not at all. Other methods of performance are necessarily forbidden. (12) Learned Counsel then referred to six decisions of the Hon’ble Apex Court in which the aforesaid proposition of law laid down in Nazir Ahmad’s case (supra) has been followed without any dissent; (i) State of U. P.-vs.-Singhara Singh, AIR 1964 SC358(361). (ii) Dhananjaya Reddy-vs.-State of Karnataka, AIR 2001 SC1512(1518-19). (iii) A. K. Roy-vs.-State of Punjab, AIR 1986 SC2160(2164). (iv) Ram Phal Kundu-vs.-Kamal Sharma, (2004) 2 SCC759(773). (v) Gujarat Urja Vikas Nigam Ltd.-vs.-Essar Power Ltd., (2008) 4 SCC755(para 35). (vi) Ram Deen Maurya-vs.-State of Uttar Pradesh, (2009) 6 SCC735(para 41). (13) Learned Counsel submitted that in the absence of a declaration under Sec. 3 of the 1903 Act, no administrative action by any officer of the Central Government or any State or any State Legislature can nullify the operation and scheme of the Central Legislation namely, 1903 Act. (14) It was next submitted that the Learned Trial Judge has observed that ‘it is worth mentioning that the writ petitioners have not challenged the Constitutional validity of the Works of Defence Act, 1903 or the Cantonment Act, 2006 as unreasonable or interfering with their right to property’. Learned Counsel submitted that there is no question of applicability of the Cantonment Act, 2006 as admittedly the area is governed by the KMC Act. Further, there is no question of the appellants questioning the Constitutional validity of the 1903 Act. On the contrary, the whole case of the appellants challenging the validity and legality of Secs. 628 and 629 of the KMC Act is founded on the scheme and operation of the 1903 Act. (15) Learned Counsel then submitted that a restriction on the right to use property is to be strictly construed. In this connection he relied on a decision in the case of Bhavnagar University-vs.-Palitana Sugar Mill (P) Ltd., (2003) 2 SCC111 In particular he relied on paragraphs 27 and 40 of the judgment which are set out hereinbelow:“27. An owner of a property, subject to reasonable restrictions which may be imposed by the legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under the statute would not be presumed.
40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.”
. He also relied on a decision in the case of State of Rajasthan-vs.Basant Nahata, (2005) 12 SCC77 At paragraph 59 of the judgment the Hon’ble Apex Court observed that in the absence of any substantive provisions contained in a Parliamentary or Legislative Act, a person cannot be restrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right of property as envisaged under Art. 300A of the Constitution of India. (16) Learned Counsel summarised the grievances of the appellants as follows:(i) The appellants being the owners of the property in question, they can be deprived of the user of the property only by authority of law. (ii) As the property is alleged to be in an area of the works of defence as it is in the neighbourhood of Fort Willam, it comes within the exclusive legislative field of the Union of India under Entry 4 of List I of the 7th Schedule, to the Constitution and under Art. 246, Parliament alone and not the State Legislature has legislative competence. (iii) The 1903 Act, a Central Government Act, as an existing law continues to remain in force, under Art. 372 of the Constitution until amended or repealed. (iv) Under the 1903 Act a restriction or prohibition can be imposed under Sec. 3 only by a notification of the Central Government published in the Official Gazette and authenticated by the specifically authorised person. (v) The area to be affected is to be identified by boundaries and indicated in a sketch by the Central Government under Section 3(2) of the 1903 Act. (vi) Undisputedly there is no declaration or notification under Sec. 3 of the 1903 Act. (vii) When the mode of doing an act is specified by the 1903 Act, even the Central Government in exercise of its executive power cannot do it otherwise. (viii) The Defence Secretary in exercise of his executive power cannot decide and declare that the property of the appellant company is within Hastings and Hastings is a protected area. Such an area is to be declared and identified by a notification and sketch which admittedly have not been done. (ix) In such circumstances Sections 628 and 629 of the KMC Act cannot have any operation so as to affect the appellants’ right to property. (x) The KMC Act is a State Act and is well within the legislative field of the State namely, entry 5 of List II of the 7th Schedule to the Constitution. It is true that incidental encroachment by a State law on the central field is permissible under the doctrine of pith and substance. However, this is not a case of incidental encroachment but of affection of Central law within the Central List by a State law which would render the State law void under Art. 246 of the Constitution. (xi) The State Legislature cannot declare Hastings as an affected area when under the 1903 Act, the same can be done only by the Central Government by a notification with reference to a sketch and the restriction or prohibition can be imposed by the Central Government only by a notification. Neither, the specification of the area nor the imposition of the restriction can be done otherwise. (xii) The effect of Sections 628 and 629 of the KMC Act is to affect, alter and/or amend the Central Act namely the Works of Defence Act, 1903 and for that reason the aforesaid provisions of the KMC Act are void. (17) Learned Counsel referred to the decision in the case of Prof. Yashpal-vs.-State of Chattishgarh, (2005) 5 SCC420 wherein at paragraph 48 of the judgment, the Hon’ble Apex Court observed that any State legislation which sets at naught an enactment validly made by Parliament would be wholly ultra vires. (18) Learned Counsel then submitted that there is a difference between the doctrine of pith and substance and the doctrine of occupied field in the context of principles embodied under Arts. 246 and 254 of the Constitution of India and principles analogous thereto. The doctrine of pith and substance means that where a question arises for determination whether a particular law relates to a particular subject mentioned in one list or another, the Court looks to the substance of the matter. Thus, if the substance falls within the Union List, then the incidental encroachment by a Central law on the State List does not make it invalid. In the case of Prafulla Kumar-vs.-Bank of Commerce, Khulna, AIR 1947 PC60 the Privy Council held that a State law dealing with money lending (a State subject under the Government of India Act, 1934) is not invalid merely because it incidentally affects promissory notes (Union List, Entry 46). He submitted that the doctrine of pith and substance does not mean that a State law made under its own exclusive list can override a Central law made under List I (Central List) or List III (Concurrent List). Incidental encroachment upon the Central List is not the same thing as the affection of a Central Legislation falling within its own exclusive list. When a Central Act is occupying its own exclusive field, there can neither be an offensive encroachment or modificated affection by the State Legislation. (19) Learned Counsel submitted that under Art. 246 (3) the exclusive power of the State Legislature even in respect of List II is subject to Clause (1) and Clause (2) of the said Article which confer legislative power upon Parliament in respect of List I. The operation of clause (1) of Art. 246 is not withstanding anything contained in clauses (2) and (3) and the operation of clause (3) is subject to clauses (1) and (2). Thus, from a constitutional point of view, the Central Act will be effective and the State Act to the extent of encroachment on the Central field will be ineffective and inoperative. In this connection, Learned Counsel relied on ‘Principles of Statutory Interpretation’ by G. P. Singh, 13th Ed., pages 594-596. Reliance was also placed on the decision of the Constitution Bench of the Hon’ble Supreme Court in the case of Association of Natural Gas-vs.-Union of India, (2004) 4 SCC489 At paragraph 15 of the judgment it was observed as follows:“15. Although Parliament cannot legislate on any of the Entries in the State List, it may do so incidentally while essentially dealing with the subject coming within the purview of the Entry in the Union list. Conversely, State Legislature also while making legislation may incidentally trench upon the subject covered in the Union List. Such incidental encroachment in either event need not make the legislation ultra vires of the Constitution. The doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation. However, when there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the conflict.”
. Learned Counsel submitted that the irreconcilable conflict between Sections 628 and 629 of the KMC Act on the one hand and the whole scheme of 1903 Act on the other is that in total disregard of the 1903 Act the State Legislation seeks to empower the Army Officer to approve or disapprove the building plan in the absence of a declaration with sketch map under Sec. 3 of the 1903 Act. (20) Learned Counsel urged that ‘Hastings’ area referred to in Sec. 628 of the KMC Act has not been defined in the Act nor is the geographical extent of the Hastings known either to the KMC or the Army Authority. Reference was made to a letter dated 25 September, 2010 written by the Director General, Building, KMC to the Army Authority wherein it was stated, inter alia, that ‘………….in the absence of boundary of Hastings in the Calcutta Municipal Corporation record, this department is not able to supply you the documents asked for, for ascertaining the jurisdiction of the General Officer Commanding, Bengal Area, for the clearance required.’ Learned Counsel also referred to a letter dated 21 March, 2011 written by the same officer of KMC to the Army Authority wherein it was stated, inter alia, that ‘although the KMC Act, 1980 came into force in the year 1984, even after expiry of almost two and half decades, no official communication has been received from your end restraining sanction of building plan within the Hastings area’. The Army Authority in their reply dated 18 April, 2011 stated, inter alia, that ‘KMC Act, 1980 pertains to your Department and all provision contained therein are required to be followed in letter and spirit at your end. We appreciate that flaws have been identified at your end and sincerely hope that desired actions will certainly be initiated to regularise all buildings constructed in Hastings Area violating provisions of the KMC Act, 1980’. Referring to the aforesaid three letters, learned Counsel submitted that the geographical contours of the Hastings area was not even known either to the KMC or the Army Authority and to introduce a restriction what was required was a Gazette notification specifying the area in a sketch map under Sec. 3(2) of the 1903 Act. (21) It was then submitted that while referring to Public Policy behind the restrictions under Sections 628 and 629 of the KMC Act, the Learned Judge failed to take into consideration the extent and the object of public purpose reflected and embodied in the 1903 Act and there cannot be any public purpose or policy that can be invoked by the State Legislature in disregard of the Central Act entirely occupying the field. He submitted that if a declaration is made under Sec. 3 of the 1903 Act, the provisions of Secs. 628 and 629 of the KMC Act may revive and become operative consistently with the declaration under Sec. 3 of the 1903 Act and until then the State provisions will remain in eclipse till the repugnancy persists. (22) The Defence Department has issued two circulars in exercise of its executive power. Under the earlier circular dated 18 May, 2011, construction beyond 500 metres was exempted and under the subsequent circular dated 18 March, 2015 the 500 metres bar has been declared to be not applicable to constructions already made. It is submitted that in any case such executive or administrative circulars cannot affect the appellants’ right to property under Art. 300A which contemplates deprivation of the right only by valid law made by the Competent Legislature. In the instant case there is no such valid law. (23) Further, the determination of the area of Hastings by the Defence Secy. apart from being without the authority of law cannot have retrospective effect so as to affect the constructions already made by the appellants. (24) Learned Counsel relied on an observation of the Hon’ble Supreme Court in the case of Satwant Singh Sawhney-vs.-A.P.O, New Delhi, AIR 1967 SC1836 to the effect that one of the aspects of Rule of Law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority (para 33). (25) Learned Counsel referred to the Supreme Court decision in the case of Prof. Yashpal-vs.-State of Chhattisgarh , (2005) 5 SCC420 and in particular to paragraph 48 thereof which runs as follows:
“32. Any State legislation which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. We are fortified in our view by a Constitution Bench decision in R. Chitralekha v. State of Mysore AIR 1964 SC1823where power of the State under Entry 11 List II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for consideration. Subba Rao, J.
after quoting the following passage from Gujarat University vs. Shri Krishna AIR 1963 SC703 "The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to
65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the coordination of such standards either on an All India or other basis impossible or even difficult."
enunciated the following principle defining the contours of the legislative powers of States vis-a-vis Union so as to steer clear of any overlap or collision: "This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the import of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case."”. (26) He then relied on a decision of the Hon’ble Supreme Court in the case of ITC Ltd.-vs.-Agricultural Produce Market Committee, (2002) 9 SCC232 wherein at paragraph 94 of the judgment it is observed as follows:“94. Although Parliament cannot legislate on any of the entries in the State List, it may do so incidentally while essentially legislating within the entries under the Union List. Conversely, the State Legislatures may encroach on the Union List, when such an encroachment is merely ancillary to an exercise of power intrinsically under the State List. The fact of encroachment does not affect the vires of the law even as regards the area of encroachment. This principle commonly known as the doctrine of pith and substance, does not amount to an extension of the legislative fields. Therefore, such incidental encroachment in either event do