SooperKanoon Citation | sooperkanoon.com/885383 |
Subject | Civil |
Court | Kolkata High Court |
Decided On | Sep-15-2008 |
Case Number | A.P.O. No. 78 of 2006 Arising out of W.P. No. 2016 of 2005 |
Judge | Pratap Kumar Ray and ;Manik Mohan Sarkar, JJ. |
Reported in | (2008)IVCALLT275(HC) |
Acts | Kolkata Municipal Corporation Act, 1980 - Sections 396, 400, 400(1) and 400(3); ;Companies Act, 1956; ;Code of Criminal Procedure (CrPC) ; ;Constitution of India - Articles 14, 19, 21 and 226; ;Kolkata Municipal Corporation Building Rules, 1990 - Rules 25 and 85 |
Appellant | The Municipal Commissioner, the K.M.C. and ors. |
Respondent | Kedar Nath Bansal and ors. |
Disposition | Appeal allowed |
Cases Referred | Ziauddin v. Mayor |
Pratap Kumar Ray, J.
1. Assailing the judgment and order dated 3rd March, 2006 passed by learned trial Judge in W.P. No. 2016 of 2005. this appeal has been preferred by the Municipal Commissioner, Kolkata Municipal Corporation and other Officers of the said Corporation. By the impugned judgment under appeal learned trial Judge allowed the writ application filed by the writ petitioners by quashing/setting aside the decision of Municipal Building Tribunal passed in B.T. Appeal No. 49 of 2002 confirming the order of demolition passed by Special Officer (B) in Demolition Case No. 25-D/01-02 and passed the direction to regularize the unauthorized construction by conversion of parking space as servants' room on realizing the penalty as per rule. The relevant portion of the impugned judgment under appeal reads such:
I have already mentioned above that neither the Special Officer (Building) nor the Appellate Authority came to a finding regarding violation of any specific Building Rules, in such construction. The constructions were made, no doubt, in deviation of the sanctioned plan, but whether such deviation offends any Building Rule or not, has not been considered either by the Special Officer (Building) or by the Appellate Authority. The tests which were laid down by the various pronouncements of the Hon'ble Supreme Court as well of this Court, as referred to by Mr. Mullick, have not been applied in the instant case.
The decisions which have been cited by Mr. Ghosh do not apply in the facts of the instant case, as the extent of the unauthorized construction is magnificently meagre than that of the extent of unauthorized construction which were under consideration before the Hon'ble Supreme Court in those decisions. In those cases, the authorized constructions were very much extensive and massive. Such constructions were made not only in deviation of sanctioned plan, but also in violation of the Building Rules. Such constructions were raised by the promoters with profit earning motive.
Under such circumstances, discretion was not exercised in favour of retention.
The reasons for retention of the other portion of the offending constructions, viz., the association room and the toilet which were constructed beyond the sanctioned plan, have not been disclosed in the order passed by the Special Officer (Building). Thus, how and why the discretion was exercised by the said Special Officer (Building) in favour of some portion of the offending construction while refusing to exercise such discretion in favour of other similar type of illegal construction in the same premises, cannot be ascertained from the order itself. The justification for exercise of such miscreation by the Special Officer (Building) has not been considered the Appellate forum which mechanically affirmed the order of the Special Officer (Building).
Demolition precise prepared in this proceeding show that such constructions were made after issuance of completion certificate. There is nothing on record to show that such constructions were made by the promoters..that a it may, here in the instant case I find that the order impugned in absolutely a non-speaking order. Even no independent finding that arrived at by the appellate authority with regard to the alleged subverance and inconvenience of the complainants for such illegal construction. If the surference of the complainants is the only consideration for passing the order of demolition, then retention of the other similar offending portion, cannot be justified.
Neither the Special Officer (Building) nor the Appellate authority considered the nature of construction complained of. Only boundary walls on the four sides of the garage space in between the pillars have been raised and thereby converted the garage space into room. These constructions were all made by the respective allottees within their respective allotments, the other flat owners have no right of joint user of the said spaces. As such, the complainants cannot suffer any inconvenience due to such constructions. Neither the Special Officer (Building) nor the Appellate Tribunal found that F.A.R. has been affected by such constructions. How the service area will be affected by such construction and the degree of such affectation has not been discussed in the impugned order.
Accordingly, their Court cannot agree with the findings of the Tribunal. The impugned order is, thus, set aside. The Municipal Authority, is, thus, directed to regularize such construction by realizing penalty as per rules.
As such, the impugned order cannot be retained on record. The impugned order is, thus, set aside.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
2. It is the case of the writ petitioners in the writ application that they purchased the additional car parking space, which was duly converted to servants room by the promoter and there was no breach of building rule. It was the further contention that the other flat owners who did not purchase servants' room as constructed in the additional car parking space out of vengeance lodged a complaint to the Kolkata Municipal Corporation who in turn initiated a proceeding under Section 400 Sub-section (1) of the Kolkata Municipal Corporation Act, 1980, hereinafter for brevity referred to as 'K.M.C. Act', against the writ petitioners, who thereby passed a decision of demolition of servants' room converted from additional car parking space and demolition of the partition walls constructed by the writ petitioner in their respective portion of the roof by raising the walls 3 ft. or more.
3. Said proceeding under Section 400 Sub-section (1) of the K.M.C. Act registered as Demolition Case No. 25-D/01-02 in respect of the premises No. 51A, B.T. Road, Kolkata was decided against the writ petitioners upon hearing their objection and order of demolition was passed directing demolition of the structure unauthorizedly constructed in the additional car parking space as was converted to servant room and the partition walls as raised dividing the roof. The relevant portion of the findings of Special Officer (B) reads such:
The report of the A.E. dt. 12.12.01 states that some constructions have been made at the ground floor and within the covered car parking and service area. The constructions are mainly with brick walls and for the purpose of making servant rooms. There are some shifting or rooms like the Caretaker Room and toilet and Electrical Room. Some of the P.Rs. have made wall on the roof. The A.E. further states that there has been a building plan sanctioned in favour of the building vide B.S. Plan 140(B-I) dt. 14.3.96 and also a plan under Rule 25 sanctioned vide No. 63 (B-I) dt. 30.5.97 and subsequently the building was certified by issuing occupancy certificate vide E. E. (C-B) 902/B-I of 97-98. This unauthorized construction is old one and has already been completed long since. So proposal under Section 400 along with precis and demolition sketch are forwarded before the higher authority far further orders.
During hearing the P.Rs. side have submitted that they have not made any construction work but the Promoter has sold the flats after making the constructions. The P.Rs. side has submitted a copy of B.S. Plan and a specimen copy of sale deed.
4. An appeal was preferred under Section 400 Sub-section (3) before the Municipal Tribunal unsuccessfully by the writ petitioners-respondents herein. In this appeal registered as B.T. Appeal No. 49 of 2002. The Appellate Tribunal dismissed the appeal on the following findings:
All the construction are at the ground floor and within the covered space and also within the car parking and service area. Besides, all these portions are unauthorized constructions, occupied by the PRs/appellants. Apart from the above unauthorized constructions some of the flat owners (amongst the PRs) have purchased the roof right and they have also made demarcations of their portion by erection of brick walls upto the height to 0.90 m. According to the Pvt. Respondents/complainant/other set of Flat owners all these constructions not only infringes the bldg. Rules of the CMC Act, 1980 and deviated the bldg. Sanction plan but also it causes inconvenience/suffering to them and to the others dwellers of the building. More so the alleged constructions of the ground floor not only covered the car parking space but also encroaches the common areas of the bldg. Where all the flat owners have equal right/share. Further, by the said construction smooth running of the car and car parking also badly damaged inclusive the free access and exist of the car. Besides, from the alleged construction of the room some of the PRs running of their share brokery business causing inconvenience and disturbing their privary in the residential building. Further by the alleged construction on the terrace and fixing of gate thereon free access of all other dwellers not only obstructed but also by different walls drainage system of the rain water on the terrace became badly damaged causing serious injury of the entire building specially to the roofs of the top floor...by the said blockage cleaning and drainaging of the usual flow of water in the overhead tanks also badly affected. At the time of hearing learned Counsel representing the Pvt. Respondents (3 to 11) thus fervently appeal before the Court that all these constructions both in the ground floor as well on the terrace are required to be demolished. On the other hand learned Counsel for the appellant PRs advanced his arguments stating inter alia that the constructions under challenge raised by the promoters before their purchase and they have simply occupied the same. Besides, it is admitted by the PRs that they raised partition walls on the terrace only to demarcated their portions without causing any disturbance to the others, they have also fixed a gate to their portion but it can be opened at any moment at the time of requirement or cleaning the roof, tank, drain etc. etc. According to the appellant constructions of room or user of additional car parking space in the ground floor in no way disturbed the other owners and the same is otherwise structurally safe and sound. On the other hand learned Counsel for the CMC strongly opposes the submission of the appellant/PRs stating inter alia that any deviation of Bldg. Plan means demolition. According to CMC the present appellant, even if purchased the constructed portion (alleged) from its vendor, can not shift his responsibility since admittedly he has purchased a unlawful construction. Besides learned Counsel for the CMC also referred different evidences/ precis/notices showing the various nature of unauthorized job in the building and its extent thereof. Referring the decision referred in 2004 7 SCC 733, : AIR2005SC1794 it is said by the CMC that in case of frequent violation - relaxation of building. Rules and retention thereon is not permissible. Further in a gross violation in the major construction is not also permissible nor rules relaxable. According to CMC the SO(B) considered the case sympathetically in the interest of the entire flat owners and retained the Association room along with attached toilet and thus order of demolition in respect of the other major portion of unauthorized constructions are reasonable and justified.
In this context, under the circumstances above, and from our foregoing discussions we are to mention that the extent of construction are very major. On the other hand retention of a unauthorized construction can only be considered liberally in the interest of principle of natural justice, when the violation of building. Rules are minor and no one suffers by the said constructions. In the present case we noticed that a major section of other flat owners raised the complaint and contested the case truly not only before the SO(B) but also before the present forum showing their sufferings/inconvenience for the alleged construction. Accordingly no illegal construction can be ordered to be retained at the cost and interest of the others. Grounds under the appeal is thus not at all tenable either in law or in fact. Retention /relaxation in respect of the retained portion of flat owners Association room and toilet is otherwise acceptable for the interest of all flat owners. Appeal fails.
5. The said order of Appellate Tribunal became the subject matter of judicial review under Article 226 of the Constitution of India in the writ application moved by the writ petitioners-respondents being W.P. No. 2016 of 2005, wherein the learned trial Judge allowed the writ application by holding, inter alia, that the construction was not major and the same should be regularized. Against that decision the appeal preferred. The relevant portion of the order of learned trial Judge is quoted earlier.
6. The parties argued at length referring the different judgments. It is the submission of the appellant that the Corporation Act takes care about the authorized construction by sanctioning the building plan and any sought of unauthorized construction is liable to be demolished. It is submitted that building plan was sanctioned showing the car parking space of 16 cars but by changing the car parking areas, namely, by narrowing down the space in between the 2 cars as were mentioned in the sanctioned building plan, extra space was identified by the promoter and he sold the same as additional car parking space, wherein the present writ petitioners have illegally converted their respective additional car parking spaces as servants' room, which is not permissible under the law. It has been further contended that by such construction the floor area ratio of the building was increased and at the same time a room has been constructed without maintaining the minimum height prescribed in the statute. Beside such, it is the submission that the car parking zone has been made conjested and when the building plan permits to keep the car parking zone open, they have closed it for which the other flat owners are suffering inconvenience and the same also has caused environmental hazard. Learned advocate for the appellant has referred several judgments to submit that the discretion by the Municipal Commissioner to be exercised in view of the use of the word 'may' under Section 400 Sub-section (1) of the said K.M.C. Act on the basis of the Apex Court's guideline for exercising such jurisdiction in respect of any unauthorized construction. It is contended that retention of unauthorized construction is not a matter of course.
7. It is further contended that judicial review is not permissible on the facts of the case as Special Officer (B) who was the original authority to pass the demolition order, heard the writ petitioners and thereby passed a reasoned decision, which became the subject matter of the appeal laid by the writ petitioners unsuccessfully, wherein the Appellate Tribunal on considering the evidence on record confirmed the demolition order passed by the Special Officer (B) and as such, this Court surely will be slow to exercise the judicial review jurisdiction sitting as an Appellate Authority, which is a settled legal proposition, which the learned trial Judge did not at all considered and on the other hand, the learned trial Judge himself weighed the balance in between the demolition and retention issue and held that the constructions were not major constructions, which is not permissible under the law while exercising jurisdiction under Article 226 of the Constitution of India. Reliance has been made to the judgments passed in the cases Friends Colony Development Committee v. State of Orissa and Ors. reported in : AIR2005SC1 , Mahendra Baburao Mahadik and Ors. v. Subhash Krishna Kanitkar and Ors. reported in : AIR2005SC1794 and Pratibha Co-operative Housing Society Ltd. and Anr. v. State of Maharashtra and Ors. reported in : [1991]2SCR745a in support of the submission as made.
8. It is the case of the writ petitioners-respondents that the Special Officer (B) and the Appellate Tribunal both committed gross illegality by not allowing the retention of the illegal construction on the premises that the said construction is not major construction but a minor one. It has been further contended that writ petitioners have purchased the servants' room from the promoter and accordingly acquired a good title over the property in question, which can not be disturbed by the Municipal Authority in exercise of the power under Section 400 Sub-section (1) and this point was not at all considered by the Appellate Tribunal.
9. Having regard to the rival contention of the parties it appears before this Court that only point as required to be dealt with in the appeal as to whether the construction as made unauthorizedly without any sanctioned building plan by converting the additional car parking spaces as servants' room would be retained by the order of the High Court quashing the impugned decision of Appellate Tribunal and also of the Special Officer (B) who are the fact finding body and authority to deal with the matter under the statute, namely, the K.M.C. Act. To have an answer to that point, practically the principle of law, namely, the proportionality doctrine to interfere with the decision of administrative body and/or quasi judicial body under the anvil of Article 226 of the Constitution of India when a challenge is made on ground of arbitrariness under Article 14 will give a positive response.
10. Before answering that question in the angle and scope and limit of judicial review and its intensity/depth of scrutiny level, the relevant provision of the K.M.C. Act is required to be dealt with. Section 400(1) is the provision under which the demolition proceeding was initiated. Section 400 Sub-section (1) of the K.M.C. Act reads such:
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).Explanation. - In this chapter, 'the person at whose instance' shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions if any, or does it by himself.
11. It appears from the said provision that the person responsible for unauthorized construction is liable to face the proceeding upon having an opportunity of hearing in the matter by filing objection and on hearing a decision is required to be passed. From the writ application it appears that the writ petitioners duly filed their objection contending, inter alia, that they purchased the servants' room, which was unauthorizedly constructed by the promoter/developer and as such, they had no liability. In support of such, a sale deed was produced by one of the writ petitioners, which is available in the records of the Appellate Tribunal, which was called for by this Court. On bare perusal of the deed of conveyance executed on 3rd August, 1999 by M/s. Mahadeo Nirman Private Limited, a private limited company incorporated under the Companies Act, 1956 as owner/vendor in favour of Sri Sanjeev Kr. Bansal, writ petitioner No. 5, purchaser, registered on 3rd August, 1999, it appears from the 2nd Schedule as referred to in the said deed of conveyance being the property schedule sold that no servants' room on converting the additional car parking space was sold to the writ petitioner by the said owner/ vendor.
12. The 2nd Schedule of the deed reads such:
The second schedule above referred to
ALL THAT the one south-facing finished flat, being flat No. 2A, on the second floor containing two bedrooms, one living cum dining, one kitchen, two toilets (one Indian and the other European style) and one balcony, comprising a total super-built-up area of 857 Sq. ft. more or less, togetherwith one car parking space, being space No. 5 for parking one motor car, an additional parking space, measuring more or less 145 sq. ft. being space No. 19, on the ground floor of the said building and together with an exclusive right of last/ultimate roof-space measuring more or less 530 sq. ft. being roof-space No. 5A, and together with undivided impartible proportionate share of land in and out of the land mentioned in the first schedule hereinabove, together with the undivided proportionate share of staircase, and this apart, the right to use and enjoy the demarcated one-fourth portion of the last/ultimate roof of the building common with others; and also common areas, parts and other facilities, available to the said building namely Ganapate Apartment, being situated at premises No. 51A, Barrackpore Trunk Road, (also known as B.T. Road), Calcutta - 700 050, within the limits of the Calcutta Municipal Corporation, within the jurisdiction of the Additional District Sub-Registrar at Cassipore-Dum Dum, P.S. Cossipore, District North 24-Parganas. AND a site plan of the said flat marked in RED colour is enclosed herewith AND the said flat is butted and bounded as follows:BY NORTH : Common areas.BY SOUTH : Common areas and thereafter Flat No. 2B.BY EAST : Common areas.BY WEST : Flat No. 2F.
13. In the 5th Schedule of the said deed there is different clauses of agreement in between the parties of the deed, namely, the vendor and the purchaser. Under Clause (9) it is stipulated that no construction on the additional space should be made without permission/sanction by the competent authority. Clause (9) reads such:
That the purchaser may construct on the additional space, if it is so permitted/sanctioned by the competent authority at any material time.
Furthermore, under Clause (11) of the 5th Schedule, there is a mentioning that no structure, pucca or kacha, to be made upon the roof space, which reads such:
That the purchaser shall not be entitled to construct any structure-pucca or katchha and/or whatsoever in. nature, upon the roof-space, particularly mentioned for his exclusive use, enjoyment and possession.
The deed was duly executed and registered accordingly.
14. A specimen copy of the sale deed was submitted. All the writ petitioners acquired their respective title by different sale deeds with similar recital made in the said specimen sale deed, which has been quoted. On a bare reading of the said sale deed it appears that the writ petitioners never purchased any servants' room converting the additional car parking space by raising the walls in four sides and fitting a door thereto in one side, as it appears from the demolition sketch plan as submitted by the Kolkata Municipal Corporation Authority and which is appearing in the Tribunal's records.
15. Hence, the fact proved from the sale deed itself that the writ petitioners submitted false objection not only before the Special Officer (B) by contending that they purchased the servants' room from the developer/promoter on valuable consideration and accordingly acquired a title and that the construction, if any, which is admittedly unauthorized was made by the developer/promoter, their vendor, but they also contended the same before the Appellate Tribunal as well as in the High Court at Calcutta. In the writ application it is the positive submission in paragraph 3, 4, 9 and 11 to this effect that the writ petitioners purchased the servants' room, car parking space and the flat from the vendor, the servants' room was converted from additional car parking space by the vendor and that the roof also was demarcated with necessary construction. The relevant portion from the writ application reads such:
3. By various Deeds of Conveyances the petitioners and the respondent Nos. 3 to 11 had purchased various flats at the said premises from the vendor Messrs. Mahadeo Nirman Primate Limited (hereinafter referred to as the Vendor). The petitioners crave leave to refer to the said deeds at the time of hearing, if necessary.
4. In addition to the said flats some of the petitioners/respondents were allotted car parking space, servants room and demarcated sections of a portion of the roof leaving the remaining portion of the roof for common use.
9. The vendor had sold to some of the petitioners and respondents their respective flats as also car parking spaces and rights of a portion of the roof leaving the remaining portion of the roof for common use, the vendor thereafter made servants rooms in these additional car parking spaces leaving the number of car parking spaces as sanctioned being 16 (sixteen) in number, intact. Apart from the said car parking spaces, servants rooms and pump room, another room was made in the ground floor earmarked as flat owners' association room and toilet. All constructions in the ground floor are within the covered area of the building and there are no encroachments.
11. The roof had been divided by the vendor into 25% area for common use to gain access to the common facilities situated on the roof by all the flat owners. The remaining 75% were earmarked and sold to petitioner Nos. 4 go 8, who were permitted to erect small 3 feet high walls, lower than the pereferial parapet walls, to demarcate their portions. It may be noted that there are no water tanks or any other common facilities in the petitioners' demarcated portion of the roof for which access is required by all the flat owners.
16. Hence, the submission of the writ application is not supported by any documentary evidence, namely, the sale deed by which the writ petitioners claimed their right and title over the servants' room by conversion of additional car parking space and also the construction over the roof in question. From the sale deed already quoted, namely, the 2nd Schedule and 5th Schedule it is proved that no servants' room or any servants' room converting from the additional car parking space or any construction over the roof demarcating the respective portions by raising the walls, were sold. On the other hand, it appears from the 2nd Schedule and 5th Schedule of the sale deed that the vendor sold additional car parking space only without any construction and conversion of the same as servants' room and the open roof without any construction. In the sale deed there is further agreement clause in between the vendor and the purchaser that they would not raise any construction in the additional car parking space without sanction/permission of the Competent Authority i.e. the Kolkata Municipal Corporation and they will not raise any constrution in the roof.
17. From the very averment of the writ application learned trial Judge accordingly ought to have rejected the writ application at the 'Motion Stage' as the writ petitioners did not come to the Court in clean hands but they suppressed the material facts and they submitted false statements by affirming an affidavit verifying the contention made in the relevant portion of the writ application as already quoted. It is a settled legal proposition of law that when there are misrepresentation of facts, suppression of the material facts and submission of false affidavit, no Court of law will entertain any application and on that ground writ application should be rejected. Reliance may be placed to the judgment passed in the cases Welcome Hotel v. State of A.P. reported in : [1983]3SCR674 and All India State Bank Officer's Federation v. Union of India reported in (1990) Suppl. SCC 336.
18. Now on the application of the principle of judicial review, particularly the proportionality doctrine, which has been thrashed due to use of the word 'may', a discretionary power to retain any construction in Sub-section (1) of Section 400 of K.M.C. Act, we have to consider the issue under anvil of judicial review.
19. The writ petitioners, before the Special Officer (B), the Appellate Tribunal and also in the High Court before the learned trial Judge in the writ application practically prayed to retain the unauthorized construction on the plea that the unauthorized construction was not major. Learned trial Judge also opined in their favour and directed retention of the unauthorized construction by regularizing the same. Hence, the question is whether there is any scope of judicial review in such type of matters, to allow retention of admitted unauthorized construction.
20. Judicial review is permissible when any administrative or quasi judicial order/decision suffers from 'Wednesbury Arbitrariness', satisfying foundation of factual ground of something absurd, which no sensible person could ever dream. The Wednesbury principle cropped up from the case Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation reported in (1947) 2 All. E.R. 680 (CA), wherein Lord Greene M. R. explained the 'reasonableness' in the following term:
It is true the discretion may be exercised reasonably. Now, what does that mean? Lawyers familiar with the phraseology commonly 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 who is entrusted with the 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 ever dream that it lay within the powers of the authority. Warrington, L.J. in Short v. Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.
21. The meaning of 'unreasonableness', which could be a ground to interfere with any such order/decision by exercising the power of judicial review, was explained in the language of Lord Denning M.R. in the case Secretary of State for Education and Science v. Metropolitan Borough of Tameside reported in (1976) 3 All. E.R. 665 (HL) by the language to this effect:
It is one thing to say to a person: 'I think your are wrong. I do not agree with you.' It is quite another thing to say to him: 'Your are being quite unreasonable about it.' I know it is often done. It is commonplace in argument to say to your adversary: 'You are being very unreasonable' when all your mean is' 'I think your are wrong.' Such hyperbole is excusable in ordinary mortals but not in those who have to consider and apply Acts of Parliament. No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view.
22. The unreasonableness in the language of Prof. H.W.R. Wade is a generalize rubric covering not only sheer absurdity or caprice but it contends different category of errors described as 'irrelevant consideration, mistakes, misunderstanding', which could be classified further as self-misdirection or addressing oneself to the wrong question. As per judgment passed in R. v. Secretary of State for the Home Department, ex parte Daly reported in (2001) 3 All. E.R. 433 disproportionate decision in the angle of unreasonableness and proportionality tools could be identified by three tests depending upon the intensity of such judicial review. Those tests formulated as (i) Wednesbury test; (ii) 'Heightened scrutiny test' - when fundamental rights are in issue; (iii) 'Proportionality test' - where European community or European Human Rights Law is in issue. In the said case of Secretary of State for the Home Department, ex parte Daly at para 32, accordingly, it is observed:
I think that the day will come when it will be more widely recognized that the Wednesbury case was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation.
23. Having regard to the judgment of said English cases it is clear that as yet proportionality doctrine has not been made closer to the Wednesbury test and practically in the case R. v. Secretary of State for the Home Department, ex parte Brind reported in 1991 All. E.R. 720 (HL), House of Lords rejected the proportionality doctrine as a part of English Law. In India though the English principles are being considered but a standard has been maintained by identifying the scope of judicial review applying the proportionality doctrine and a level of scrutiny, which is a common feature in Indian Courts since 1950.
24. The concept of primary and secondary review by Courts has been discussed by Lord Bridge in Secretary of State for the Home Department, ex parte Brind (supra), which has been discussed in para 39 in the case Om Kumar and Ors. v. Union of India reported in (2001) 2 SCC 386, which reads such:
In a famous passage, the seeds of the principle of primary and secondary review by Courts were planted in the administrative law by Lord Bridge in the Brind case. Where convention rights were in question the Courts could exercise a right of primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the Courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.
25. In para 67 of the said report of Om Kumar and Ors. (supra) the Court held that Wednesbury test would be the test when any action is challenged as arbitrary under Article 14. Para 67 reads such:
But where an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in this primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrevalent factors into consideration or whether his view is one which no reasonable person could have taken.
26. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council SCC at p. 111.] Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be Judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India SCC at pp. 679-80, Indian Express Newspapers Bombay (P) Ltd. v. Union of India SCC at p. 691, Supreme Court Employees' Welfare Assn. v. Union of India SCC at p. 241 and U.P. Financial Corporation v. Gem Cap (India) (P) Ltd. SCC at p. 307 while judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.
27. The concept of primary review and secondary review was considered by holding, inter alia, that when the challenge is under Article 14 as being discriminatory, the Constitution Courts surely will apply the primary reviewing principle to consider the correctness of level of discrimination applied to reach the conclusion whether it is excessive or it has a nexus to the object sought for in terms of the judgment passed in the case Om Kumar and Ors. (supra) but when it is challenged under Article 14 as a case of arbitrary exercise of power the secondary reviewing principle should be applied by the Court of law. In the case Union of India and Anr. v. G. Ganayutham reported in : (2000)IILLJ648SC . the Apex Court held that where no fundamental freedoms are involved, the Courts will play secondary role only but when fundamental freedoms are affected by any administrative or executive action whether the Courts should assume a primary role by applying the principle of proportionality only if freedoms under Article 19, 21 etc. are involved under Article 14, was left open for consideration.
28. It is a settled law that scope of judicial review and the exercise of such power so far as its extend and limit, depends upon the nature of the case, order impunged, relevant statue and other factors including the nature of power exercised by the public authorities, namely, whether power is statutory, quasi judicial or a administrative. It is a settled legal position that power of judicial review is not intended to assume a supervisory role. Reliance may be placed to the judgment passed in the case State of U.P. and Anr. v. Johri Mal : AIR2004SC3800 , a judgment of three Judges Bench, wherein para 28 and 40, the Court discussed the point in details by summarizing the scope, which is quoted herein below for appreciation of the present appeal:
28. The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review Court. The limited scope of judicial review, succinctly put, is:
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.
(v) The Courts cannot be called upon to undertake the government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn v. State of Illinois.)
40. So long as in appointing a counsel the procedures laid dawn under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adapted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the Courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the District Counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia an the ground that the same is arbitrary. The Courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a District Counsel. The jurisdiction of the Courts in a case of this nature would be to invoke the doctrine of 'Wednesbury unreasonableness' as developed in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation.
29. In the instant case, the factual matrix relates to admitted fact of unauthorized construction without any sanctioned plan from the Kolkata Municipal Corporation, as such, it is not a case of fundamental freedom. It is also not a case of discrimination under Article 14. As such, having regard to the views expressed in the Secretary of State for the Home Department, ex parte Brind (supra) read with Om Kumar and Ors. and G. Ganayutham (supra) as it is a case of arbitrary action under Article 14 as contended in the pleading of the writ application, the Court will test the issue, namely, the impugned decision applying the principle of secondary review, which means Court will satisfy as to whether there is any Wednesbury unreasonableness in the impugned decision under attack in the writ application.
30. With reference to a service matter, wherein punishment of dismissal was imposed and to identify the issue whether same is 'shockingly disproportionate', the Apex Court considered the matter in the case Union of India and Ors. v. Dwarka Prasad Tiwari reported in : (2006)10SCC388 and held that the correctness of the choice made by the administrator cannot be the subject matter of judicial review and the Court will not substitutes its own decision. The relevant paragraphs of the said report being profitable is quoted herein below being paragraph 15 and 16:
15. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should no substitute its decision to that of the administrator. The cope of judicial review is limited to the deficiency in decision-making process and not the decision.
16. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
31. On travelling round the different decisions of English Courts and of the Apex Court of India as referred to above, the point is clear that in exercise of the power of judicial review under Article 226 of the Constitution of India, Writ Court surely will not exercise its power of judicial review with the intensity of primary scrutiny test when it is not a case of fundamental freedoms, but a case of demolition of unauthorized construction without any sanctioned plan. Court in the appeal simply will scrutinize the matter as a secondary reviewing authority in the angle of Wednesbury Arbitrariness to identify the impugned decision whether is illegal. It is no doubt that proportionality doctrine to some extent has been applied by the Apex Court though explicitly is not mentioned in the cases Chintamanrao and Anr. v. The State of Madhya Pradesh reported in : [1950]1SCR759 , The State of Madras v. V.G. Row, reported in : 1952CriLJ966 , Bhagat Ram v. State of Himachal Pradesh and Ors. reported in : (1983)IILLJ1SC and Ranjit Thakur v. Union of India and Ors. reported in : 1988CriLJ158 .
32. Those cases were on the central issue to test whether the impugned decision was shockingly disproportionate. Those principles cannot be applied in the instant case. In the instant case it appears that writ petitioners unauthorizedly constructed by converting the additional car parking space as a servants' room by covering it with walls in four sides and affixing one door in one side and it is also admitted position that under the Building Regulation there is no scope for converting the car parking space. Even a car parking space on converting the same as servants' room cannot be used in view of the statutory embargo of minimum height as per Rule 85 of the K.M.C. Building Rules, 1990, wherein the habitable room height has been prescribed as 2.75 metres measured from the surface of the floor to the lowest point of ceiling, which admittedly is not the height of the present construction as it appears from the demolition plan and records of the Tribunal as placed before this Court.
33. Having regard to the principle of judicial review and its applicability, me judgments as relied upon by the respondents-writ petitioners, namely, Purusottam Lalji and Ors. v. Ratan Lal Agarwalla and Ors. reported in : AIR1972Cal459 , Mrityunjoy Sadhukhan v. Deputy Commissioner (B. & P.) Corporation of Calcutta reported in AIR 1976 Cal. 354, Rajatha Enterprises v. S.K. Sharma and Ors. reported in : [1989]1SCR457 and Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors. reported in : AIR2007SC38 , in our considered view, have no applicability. Furthermore, the judgment Muni Suvrat Swami Jain S.M.P. Sangh (supra) speaks against the writ petitioners-respondents as the learned trial Judge himself had taken the trouble to identify the unauthorized construction as not a major construction without any reasoning thereof to reach such a conclusion, which was not permissible under the law as same hits the principle of judicial review and doctrine of speaking order.
34. In the judgment relied upon by the appellant, namely, the Friends Colony Development Committee (supra), in para 25, the Apex Court expressed anxiety about such illegal unauthorized construction and regularizing thereof, in the following language:
Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehavilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.
35. The same view has been reiterated in the case Mahendra Baburao Mahadik v. Subhash Krishna Kantikar reported in 2005 AIR SCW 1579. In the case Pratibha Housing Society Ltd. and 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. v. Radhey Shyam Sahu and Ors. reported in : [1999]3SCR1066 , 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 v. Mayor-in-Council (Bldg.), 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'.
36. 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 the 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 cones 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 G. Ganayutham (supra) in para 31, sub-para 1, wherein the Court expressed views in the following language:
31. 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.
37. 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, wherein 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.
38. Having regard to our findings and observation above, accordingly, we are of the view that learned trial Judge was not right to compound the illegality by directing regularizing of unauthorized construction and there was no scope to exercise the power of judicial review to quash the impugned decision of the Appellate Tribunal by applying the intensity of scrutiny in the angle of secondary review principle.
39. Having regard to our findings and observation above, the impugned judgment under appeal, accordingly, set aside and quashed. Writ application has no merit and it also stands dismissed. The appeal is, thus, allowed with a cost of Rs. 25,000/- to be paid by the writ petitioners-respondents to the Kolkata Municipal Corporation as litigation cost and Rs. 25,000/- as cost for misleading the learned trial Court by submitting the false statement in writ application that writ petitioners purchased servants' room, which was constructed by vendor converting additional car parking space following the judgment of Apex Court passed in the case Mahendra Baburao Mahadik (supra), which is to be paid by the writ petitioners in the fund of State Legal Aid Service Authority within a month from this date.
Manik Mohan Sarkar, J.
40. I agree,
Later:
Let the report of the Tribunal as produced be returned to the learned Advocate appearing for the Corporation.
Stay of operation of the judgment, as prayed for, is considered and refused.
Urgent xerox certified copy of this judgment, be supplied to the parties if applied for, upon compliance of all requisite formalities.