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2000 Supreme(Cal) 401
High Court Of Calcutta
D. K. SETH
GOPENDRA KRISHNA CHAKRABARTY - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
W. P. 1571 Of 2000
Decided On : 08/10/2000
The Corporation has the power to issue a notice under Section 401 if it has reason to believe that there has been a contravention of the provisions of the Act, but it must have some material before it to satisfy itself of the necessity of invoking this power. The person against whom the notice is issued has a remedy to apply for recalling, rescinding, or varying the order under Section 401, within a reasonable time.
Headnote:
CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - SECTION 401 - SECTION 400 - RULE 3 OF THE CALCUTTA MUNICIPAL BUILDINGS RULES, 1990 - ISSUE OF NOTICE UNDER SECTION 401 - SCOPE AND POWERS OF THE CORPORATION - REMEDY AVAILABLE TO THE PERSON AGAINST WHOM THE NOTICE IS ISSUED - INTERPRETATION OF THE PROVISIONS.
Fact of the Case:
The petitioner was granted permission to carry out certain works on his building, as per the Calcutta Municipal Buildings Rules, 1990. However, the Calcutta Municipal Corporation issued a notice under Section 401 of the Calcutta Municipal Corporation Act, 1980, directing the petitioner to stop all construction work, including addition and alteration.
Finding of the Court:
The court held that the Corporation has the power to issue a notice under Section 401 if it has reason to believe that there has been a contravention of the provisions of the Act. However, the Corporation must have some material before it to satisfy itself of the necessity of invoking the power under Section 401. The court further held that the person against whom the notice is issued has a remedy to apply for recalling, rescinding, or varying the order under Section 401, within a reasonable time, usually two weeks.
Issues: 1. Whether the Corporation has the power to issue a notice under Section 401 without any material to support its belief that there has been a contravention of the Act? 2. What is the remedy available to the person against whom the notice under Section 401 is issued? 3. How should the provisions of Sections 400 and 401 be interpreted in light of the Bengal General Clauses Act?
Ratio Decidendi: 1. The court held that the Corporation has the power to issue a notice under Section 401 if it has reason to believe that there has been a contravention of the provisions of the Act. However, the Corporation must have some material before it to satisfy itself of the necessity of invoking the power under Section 401. 2. The court held that the person against whom the notice is issued has a remedy to apply for recalling, rescinding, or varying the order under Section 401, within a reasonable time, usually two weeks. 3. The court held that Sections 400 and 401 should be interpreted together, and that the opportunity provided in Section 400 may be implicit in Section 401 until and unless Section 400 is resorted to, however without the right of appeal.
Final Decision: The court directed the Corporation to give the petitioner an opportunity of hearing and to take appropriate steps under Section 400 if it finds any unauthorized construction, or to drop the notice if it does not so find.
( 1 ) THE petitioner was granted permission to carry on the works with regard to sub-clauses (c), (d), (g), (i) and (j) of Cl. (2), sub-rule (2) of Rule 3 and repairing the wooden beams where necessary. On 24th January, 2000 a notice under S. 401 of the corporation Act, 1980 was issued to the petitioner to stop all construction including addition and alteration. This has since been challenged.
( 2 ) THE learned counsel for the petitioner contends that in the meantime his client has completed the work as permitted without deviation from the sanctioned plan in terms of the clauses as contained in Annexure 'a' to the petition, being dated 12th January, 2000. Still the notice under S. 401 has been issued.
( 3 ) ). Mr. L. C. Behani, learned Advocate appearing with Mr. Mihir Kundu on the contrary contends that there was a report that the petitioner had carried on certain construction works which are beyond the scope of sub-rule (2) of R. 3 of the Calcutta Municipal Buildings Rules, 1990. Therefore, the notice was issued. According to him the writ petition is premature inasmuch as the petitioner has an opportunity to show cause that no illegal construction or no unauthorised construction is being carried out.
( 4 ) I have heard the learned counsel appearing for both the parties at length.
( 5 ) RULE 3 of the Buildings Rules under sub-rule (1) require every person to obtain prior sanction for erection, re-erection addition to alteration of a building. However, sub-rule (2) provides for the exceptions where such permission/sanction is not required. This sub-section begins with a non obstante clause. By reason thereof despite sub-rule (1) no sanction will be necessary for carrying on any of the works in relation to a building as enumerated in Cls. (a) to (l) of sub-rule (2 ).
( 6 ) THE petitioner in the present case submits that he is carrying on the works strictly within the scope and ambit of sub-rule (2) of R. 3. Therefore, the issue of the notice is without jurisdiction and void.
( 7 ) SECTION 401 empowers the Municipal authority to stop work if it is carried on in contravention of any of the provisions of the Act. This Act prohibits carriage of work in contravention of the provisions of the Act. Therefore, S. 401 can be resorted to at any time whenever the authority receives an information and acting on such information it has reason to believe that there has been contravention it may issue a notice under S. 401.
( 8 ) SINCE such notice brings about certain civil consequences therefore before such notice is issued, the Corporation is required to satisfy itself on certain materials that there are reasons to believe that there has been a deviation. Such satisfaction may be based on a report of the building inspector or such officer of the Corporation. It cannot issue such notice mechanically. The Corporation must have some material before it so as to enable it to satisfy itself the necessity of invoking the power under S. 401.
( 9 ) ONCE such notice is issued the person at whose instance the work is being carried on is supposed to stop work. Section 401 does not step further than stopping work. Nowhere in the Act or the Rules any provision is made or any procedure has been provided for this purpose. At the same time it has not provided anything as to what would happen after such notice is issued and the Corporation does not proceed further.
( 10 ) ON the contrary if the stop work continues it would bring about civil consequences on the person who had commenced the work. At the same time he may also be saddled with the cost of posting of police or employee of Corporation since such cost is recoverable from him under sub-section (5) of S. 401. Such person becomes remediless in view of sub-section (2) which bars the jurisdiction of Civil Court. Section 401 does not provide for any appeal.
( 11 ) THE consequence of deviation or erection without sanction or in contravention of the Act, is demolition of the unauthor
