Section 177(1) of the Howrah Municipal Corporation Act, 1980, is not arbitrary as it provides guidelines for the exercise of power by the Commissioner and further checks and balances are in place, such as the right of appeal to the Municipal Building Tribunal and the writ jurisdiction of the High Court.

( 1 ) THESE two matters are taken up for disposal together as they involve common questions of law and fact which are. more or less similar.

( 2 ) IN both these two matters, notices issued by the Howrah Municipal Corporation under section 177 (1) of the Howrah Municipal Corporation Act, 1980, have been challenged as being ultra vires, on the ground that it vests certain powers in the Commissioner without laying down any guidelines for exercise of such powers, giving scope for arbitrary exercise of such powers in identical cases.

( 3 ) APPEARING in support of the writ application filed by Smt. Atari Pal, Mr. Mukul Prokesh Banerjee, learned advocate, firstly submitted that is the absence of any guidelines, the powers vested in the Commissioner under subsection (1) of section 177 of the aforesaid Act gave him the absolute and unfettered discretion to take recourse to any of the measures provided for therein. Mr. Banerjee pointed out that under the aforesaid provisions, the Commissioner could is identical circumstances either make an order directing that a construction be stopped or demolished or such addition or alteration therein be made as considered necessary. Mr. Banerjee submitted that in the absence of any guideline, the Commissioner was free to choose any of the three measures, entirely according to his whims and fancy, which could lead to arbitrary and discriminatory exercise of power.

( 4 ) MR. Banerjee submitted that such uncanalised power was arbitrary and ultra vires the provisions of Article 14 of the Constitution, being contrary to the concept of fairness in executive action.

( 5 ) IN support of his aforesaid submissions, Mr. Banerjee referred to a Special Bench decision of this Court in the case of S. M. Nawab Aria v. The Corporation of Calcutta and Others, reported in 64 CWN at page 1. In the said case, certain provisions of the Calcutta Municipal Corporation Act, 1951, relating to recovery of consolidated rate from defaulters was, struck down by a Special Bench of this Court as ultra vires Article 14 of the Constitution, on the ground that no principle or policy had been laid down for guiding the exercise of discretion by the Municipal Authorities under section 251 of the said Act. Pointing out to the reference made in the said judgment to the case of R. K. Dalmia v. S. R. Tendolker, reported in AIR 1958 SC at page 538. Mr. Banerjee pointed out that the Supreme Court had in the said case observed that in determining the question of the validity or otherwise of a statute, the Court would have to scrutinise and see whether the statute has laid down any principle or policy for the guidance of and the exercise of a discretion vested in the Government. If after such scrutiny, it is found that no principle has been laid down for the exercise of such discretion by the Government, then the Court will strike down the statute on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government, so as to enable it to discriminate between persons or things similarly situated.

( 6 ) IN this behalf, Mr. Banerjee also referred to a decision of the Supreme Court in the case of S. G. Jaisinghani v. Union of India and Others, reported in AIR 1967 SC at page 1427, wherein the Hon'ble Supreme Court observed that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by the rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.

( 7 ) MR. Banerjee also referred to the decision of the Supreme Court in the case of M/s. Devi Das Gopal Krishnan v. State of Punjab and Others, reported in AIR 1967 SC at page 1895 where, inter alia, similar sentiments were expressed.

( 8 ) MR. Banerjee then submitted that the doctrine of fairness in all State action has since been explained in several decisions of the Supreme Court, as also thi