MANU/WB/0076/1982

Equivalent Citation: AIR1982C al314, 86C WN793

IN THE HIGH COURT OF CALCUTTA

F.M.A.T. Nos. 540 and 588 of 1982
Decided On: 07.04.1982
Appellants: Ram Awatar Agarwal and Ors.
Vs.
Respondent: Corporation of Calcutta and Ors.
Hon'ble Judges/Coram:
M.M. Dutt and M.K. Mukherjee, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.D. Banerjee, D. Ghosh, Samarjit Gupta, Tapan
Kumar Sen and O.P. Jhunjhunwala, Advs.
For Respondents/Defendant: P.K. Ghosh, Barin Banerjee, Advs. and Ajit Basu, Chief
Law Officer, Corporation of Calcutta
Case Note:
Property - unauthorised construction - Section 392 of Calcutta Municipal
Act, 1951 - whether tenant entitled for stay of unauthorised demolition -
respondent no. 11 owner of property in dispute - petitioner tenant in
property - it is not disputed by parties that building constructed without
sanction plan and in violation of Act - respondent no. 11 filed writ before
this Court as well as Apex Court - both petition dismissed - property under
dispute admittedly unauthorised property and with violation of Act -
petitioner not entitled for stay in premises - time granted to petitioner to
vacate premises - petition dismissed.

JUDGMENT
M.M. Dutt, J.
1 . The appellants, who are 60 in number, have preferred this appeal against the
judgment of B. C. Ray J., whereby the learned Judge dismissed the application of the
appellants under Article 226 of the Constitution of India.
2. The appellants claim to be the tenants of premises No. 174, Chittaranjan Avenue,
Calcutta, which is a 14-storeyed building. It is not disputed that the said building has
been constructed without any sanctioned plan and in violation of the provisions of
the Calcutta Municipal Act, 1951, hereinafter referred to as the Act, and the Building
Rules under Schedule XVI of the Act. Admittedly, one Smt. Durga Devi is the owner
of the land, comprising the said building being premises No. 174, Chittaranjan
Avenue, Calcutta. The respondent No. 11, Shyam Lal Agarwalla, took a lease of the
land with an old structure standing thereon from the said Durga Devi on June 27,
1977. The old structure was demolished by him and, thereafter, he started the

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construction of the disputed building without any sanctioned plan and in violation of
the Building Rules. The Corporation of Calcutta tried to prevent the respondent No.
11 from constructing the building in defiance of the provisions of the Act and the
Rules, but all attempts of the Corporation were defeated by the respondent No. 11,
and he succeeded in erecting the building up to the sixth storey. After the service of
statutory notice, the Corporation started a demolition case and on May 15, 1978 the
Deputy Commissioner of the Corporation passed an order of demolition.
3 . The said order of demolition dated May 15, 1978 could not stop the respondent
No. 11, Shyam Lal Agarwalla, from going on with further constructions up to the 10th
storey and, thereafter up to the 14th storey. On April 21, 1981, the Corporation
passed two other demolition orders, one for the 7th to 10th storeys and the other for
the 11th to 14h stories. In the meantime, Shyam Lal Agarwalla filed an appeal before
the Building Tribunal of the Corporation against the first demolition order of the
building up to the sixth storey. He also filed two other appeals before the Building
Tribunal against the other two demolition orders, both dated April 21, 1981, relating
to 7th to 10th stories and 11th to 14th stories.
4 . On May 29, 1981, the Building Tribunal dismissed the appeal of the respondent
No. 11, Shyam Lal Agarwalla, filed against the first demolition order dated May 15,
1978 in respect of the demolition of the building up to the sixth storey. Against the
said order of the Building Tribunal, the respondent No. 11 filed a writ application in
this Court, which was dismissed by P. C. Barooah J. on June 22, 1981. Being
aggrieved by the said order of Barooah J., the respondent No. 11 preferred an appeal
before a Division Bench of this Court under Clause 15 of the Letters Patent. The said
appeal and an application for interim order were both dismissed by the Appeal Court
by its judgment dated November 16, 1981. A special leave petition was filed by the
respondent No. 11 before the Supreme Court against the judgment of the Appeal
Court dismissing the appeal. On February 15, 1982, the Supreme Court summarily
dismissed the special leave petition.
5 . While the appeal preferred by the respondent No. 11 against the judgment of
Barooah J. was pending before the Appeal Court, he filed an application before the
Building Tribunal of the Corporation praying for stay of the said two demolition
orders dated April 21, 1981. At the hearing of the said application for stay, it was
contended on behalf of the respondent No. 11 that the issue whether the construction
of the building up to the 6th storey was illegal or not was sub judice before the High
Court and as such, the Tribunal should not act on the assumption that such
construction up to the 6th storey was unlawful and unauthorised. Considering the
said contention, the President of the Building Tribunal by his order dated September
9, 1981 directed that the execution of the said two demolition orders would remain
stayed until further orders.
6 . After the special leave petition filed by the respondent No. 11 against the
judgment of the Appeal Court dismissing the appeal and the application for interim
order relating to the demolition of the building up to the 6th storey was dismissed by
the Supreme Court on February 15, 1982, the Corporation started demolition of the
14th storey of the building on February 17, 1982. On that day, the appellants moved
an oral application before B. C. Ray, J. at his residence at about 8-30 P.M. and
obtained an ex parte interim order of injunction restraining the Corporation from
demolishing the building. Thereafter, they filed the writ petition. Ultimately, B. C.
Ray, J., by his judgment dated March 1, 1982 dismissed the writ petition of the
appellants. Hence this appeal.

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7 . In the appeals, an application for interim order of stay of the demolition of the
building has been filed. We granted an ad interim order and fixed the hearing of the
application. The respondents Nos. 1 to 5 including the Corporation of Calcutta have
filed an affidavit-in-opposition to the application for interim order of stav. As the
disposal of the application would virtually mean disposal of the appeal, by our order
dated March 10, 1982 we directed the hearing of the appeal and the application
together.
8 . On behalf of the appellants, the appeal has been argued by Mr. Sankar Das
Banerjee, assisted by Mr. Dipankar Ghosh who, to a great extent, supplemented the
argument of Mr. Banerjee. The first point that has been urged on behalf of the
appellants is that in view of the order dated September 9, 1981 of the Building
Tribunal staying the two demolition orders of the building, one from 7th to 10th
stories and the other from 11th to 14th stories, the Corporation has no authority to
start demolition of the building as it did on February 17, 1982. It if not disputed that
the Building Tribunal has not yet vacated the said order for stay. It is, accordingly,
contended by the appellants that so long as the stay order remains operative, the
action of the Corporation to commence demolition of the building will be highly
illegal. In this regard, we may notice the contention of the Corporation as made in
paragraph 23 of the affidavit-in-opposition affirmed by Sri Debabrata Banerjee, the
City Architect and Special Officer, Multi-storeyed Building Cell of the Corporation. It
has been stated in paragraph 23, inter alia, that the last two demolition cases need
not have been initiated at all if the first demolition order dated May 15, 1978 had not
been under challenge in the appeal. The subsequent demolition proceedings were
initiated by way of abundant caution, so that even if the first demolition order was
set aside on any ground, further unauthorized constructions made upon the existing
unauthorized structure could not evade the process of law. Any construction made
upon an existing unauthorized structure is ipso facto unauthorized, and the additional
construction having merged in the original unauthorized construction is liable to be
demolished along with the same. No further demolition proceeding was necessary for
such additional unauthorized construction. It was only as a precautionary measure
against any possible violation of the first demolition order that the subsequent
demolition proceedings had to be initiated.
9 . Mr. Dipankar Ghosh, learned counsel for the appellants has criticised the
contention of the Corporation as made in paragraph 23 of the affidavit-in-opposition.
It is submitted by him that the merger of one unauthorized construction with another
is unknown in legal jurisprudence. The learned counsel submits that the Corporation
cannot rely on the first demolition order dated May 15, 1978 relating to the 1st to 6th
stories of the building. It is urged that in respect of every addition to an unauthorized
construction, a fresh demolition order is necessary under Section 414(1)(c) of the
Act. It is submitted that there is no substance in the contention made on behalf of the
Corporation that no further demolition proceeding was necessary for the demolition
of additional unauthorized constructions. The Corporation, counsel submits, is bound
to obey the order of the Building Tribunal and cannot ignore such order on the
ground that no further demolition order was necessary.
10. The further contention of the appellants in this regard is that the Corporation is a
statutory body, and when the statute lays down the manner in which the powers
conferred on it by the statute should be exercised, such powers can be exercised in
that manner only and in no other manner. Reliance has been placed on behalf of the
appellants on the decision of the Privy Council in Nazir Ahamed v. King Emperor,
MANU/PR/0020/1936. It has been observed by the Privy Council that where a power

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is given to do a certain thing in a certain way the thing must be done in that way or
not at all, and that, other methods of performance are necessarily forbidden. The said
principle has been followed by the Supreme Court in Ballabhdas Agarwala v. J. C.
Chakravarty, MANU/SC/0082/1960 : 1960CriL J752 and Gujarat Electricity Board v.
Girdharilal Motilal, MANU/SC/0380/1968 : [1969]1SCR589 . Relying on the above
principle of law, it has been contended on behalf of the appellants that the attitude of
the Corporation that in view of the first order of demolition of 1st to 6th stories of
the building, there is no need for any demolition order or to start any demolition
proceeding in respect of the 7th to 14th stories which are the subsequent
unauthorized constructions upon the original six storeyed unauthorized construction,
is illegal. It is submitted that the Corporation could only proceed for the demolition
of the 7th to 14th stories in accordance with the provision of Section 414 of the Act
and not in any other manner according to its sweet will.
1 1 . The learned counsel for the appellants has also placed much reliance on the
doctrine of election. It is contended that when the Corporation has taken recourse to
Section 414 of the Act, it cannot give the go-by to the procedure for demolition as
laid down in that section and proceed to demolish 7th to 14th stories without an
order of demolition, even assuming that such an order of demolition was not
necessary. In other words, the Corporation having a choice either to proceed under
Section 414 or not, and it having elected to proceed under Section 414 cannot now
proceed without conforming to the procedure laid down in the section.
12. We may now consider the above contentions of the appellants. We have already
noted the circumstances under which the Building Tribunal granted stay of the two
subsequent demolition orders dated April 21, 1981. As the first demolition order was
the subject matter of an appeal pending before this Court which was filed by the
respondent No. 11, the Building Tribunal, in our opinion, had some justification for
granting stay of the subsequent demolition orders dated April 21, 1981. After this
Court dismissed the appeal and the Supreme Court dismissed the special leave
petition regarding the first demolition order dated May 15, 1973, it became final. In
other words, the construction of the building up to the 6th storey was adjudicated as
unauthorized construction having been made in violation of the provisions of the Act
and the Building Rules. It is not disputed before us that all further constructions upon
the 6th storey are also unauthorized. As soon as it is conceded, the Corporation
become entitled to execute the two orders of demolition regarding the 7th t o 14th
storeys of the building. It is true that the Building Tribunal has stayed the subsequent
orders for demolition but, as the first demolition order was pending before this Court
in appeal, the Building Tribunal had no other alterative than to stay the subsequent
demolition orders. But, after the first demolition order was confirmed up to the
Supreme Court, the Building Tribunal will have no option in the matter, but has to
vacate the stay order. The Corporation has not, however, moved the Building
Tribunal for vacating the stay order but, in our opinion, that is not necessary. The
illegality and unauthorizedness of the construction of the building up to the 6th
storey having been confirmed up to the Supreme Court, the proceedings before the
Building Tribunal in respect of the subsequent unauthorized constructions up to the
14th storey and the stav order have become infructuous and inoperative. The
Building Tribunal will not have any jurisdiction to continue the stay order which will
defeat the order of this Court as affirmed by the Supreme Court.
13. The contention in this regard may be examined from another point of view. The
appeals before the Building Tribunal were filed and the stay order was obtained by
the respondent No. 11, Shyam Lal Agarwalla. The stay order bound the Corporation

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vis-a-vis the respondent No. 11 and not the appellants. The appellants, therefore, in
our opinion, have no locus standi to rely on the stay order of the Building Tribunal in
respect of the subsequent unauthorized constructions up to the 14th storey.
14. The criticism of the appellants of the statements of the respondents Nos. 1 to 5
in paragraph 23 of the affidavit-in-opposition is not justified. It may be that the
contention of the respondents Nos. 1 to 5 that the subsequent unauthorized
constructions up to the 14th storey have merged in the original unauthorised
construction up to the 6th storey is not technically correct, but what has been meant
by the said contention is quite clear. The subsequent unauthorized constructions
being the extension of the original unauthorized construction, all these constructions
up to the 14th storey should be treated as one single unauthorized construction.
Indeed, the structure comprising 7th to 14th stories cannot have any separate and
independent existence without the first six stories of the building. Obviously, that is
what the respondents Nos. 1 to 5 went to mean by the said contention in paragraph
23.
1 5 . There is also justification for the Corporation to take steps against the
subsequent unauthorized constructions. The contention of the appellants is that the
Corporation cannot give the go-by to the subsequent demolition orders which are
now pending before the Building Tribunal in appeals and proceed to demolish the
building from the 14th storey relying on the first demolition order which has become
final and conclusive. It is submitted that the Corporation being a statutory body has
to proceed in accordance with the provisions of the Act and cannot adopt a procedure
of its own de hors the provisions of the Act and the Rules. It is true, as observed by
the Privy Council in Nazir Ahamad's case MANU/PR/0020/1936 (supra), where a
power is given to do a certain thing in a certain way the thing must be done in that
way or not at all, and that other methods of performance are necessarily forbidden,
We are, however, unable to accept the contention of the appellants that the
Corporation has been proceeding in violation of the provisions of the Act and the
Building Rules. It has been earlier observed that for the subsequent unauthorised
constructions no demolition order was required to be made by the Corporation. The
Corporation, in our opinion, can proceed on the basis of the first demolition order of
the building up to the 6th storey, regard being had to the fact that the subsequent
constructions are, admittedly, unauthorized having no separate and independent
existence apart from the original unauthorized construction up to the 6th storey. In
other words, the unauthorized constructions from 7th to 14th stories come within the
purview of the first demolition order.
16. It is difficult to accept the contention of the appellants that for each addition to
an unauthorized construction a fresh demolition proceeding has to be started. Section
414 does not lay down any such procedure. To accept the contention of the
appellants would be to defeat the purpose for which Section 414 has been enacted by
the legislature. To say that at each step of addition to an unauthorized construction a
demolition proceeding has to started would, undoubtedly, lead to a manifest
absurdity completely defeating the power of the Corporation and the provisions of the
Act. We, therefore, hold that the Corporation need not wait for the disposal of the
appeals before the Building Tribunal filed by the respondent No. 11 or to take any
step for the vacation of the stay order, for the said appeals and stay order, have
become infructuous and inoperative. The demolition of the building on the strength
of the first order would be quite consistent with the provisions of the Act and the
Building Rules. The contention of the appellants in this regard is unsound and is
rejected.

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1 7 . The doctrine of election which has been relied on by the appellants has no
manner of application to the instant case. The said doctrine will apply when two
courses are open to a party and, if he choses to follow one in preference to the other,
he cannot give up that course and take resort to the other. The Corporation being a
statutory body, it has to act in accordance with the provisions of the statute by which
it has come into existence. The provision of Section 414 does not lay down two
different procedures for demolition of an unauthorized structure and does not
empower the Corporation to pursue either of such procedures at its choice. There is,
therefore, no question of putting the Corporation to election. As has been already
observed by us, the Corporation has proceeded in accordance with the provision of
Section 414 by taking steps to demolish the unauthorized structure by virtue of the
first demolition order. We do not think that the legislature can put a statutory body to
election for the purpose of adopting one or other procedure for an action at its
volition or choice. Such a provision would be discriminatory and ultra vires Article 14
of the Constitution. There is, therefore, no substance in the contention made on
behalf of the appellants on the basis of the doctrine of election. The decision of the
Privy Council in Benjamin Scarf v. Alfred George Jardine, (1882) 7 AC 345, on which
reliance has also been placed on behalf of the appellants has no manner of
application to the Corporation, a statutory body.
18. The next point that has been urged on behalf of the appellants is based on the
ground of non-service of the copies of the two subsequent demolition orders in
regard to the 7th to 14th stories of the building. Before we consider the contention of
the appellants on the point, we may refer to the provisions of Sections 414 and 414A
of the Act which are set out below :
"414. If the Commissioner is satisfied-
(i) that the erection of any building-
(a) has been commenced without obtaining any permission
required to be obtained by or under this Act, or
(b) is being carried on or has been completed otherwise
than in accordance with the particulars on which such
permission was based, or
(c) is being carried on or has been completed in breach of
any provision contained in this Act or in any rules or bylaws
made thereunder or, of any direction or requisition lawfully
given or made under this Act or under such rules or by-laws,
or
(ii) that any alteration of, or addition to, any building or any other
work made or done for any purpose in, to or upon any building, has
been commenced or is being carried on or has been completed in
breach of, or otherwise than in accordance with, any sanction
granted under Section 387 in contravention of the provisions of
Section 396 or 397, or
(iii) that any alteration required by any notice issued under Rule 22
of Schedule XVI has not been duly made, he may, without prejudice
to any action that may be taken under any other provision of this
Act, by written notice require the person responsible to demolish.

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 such erection, alteration, addition or other work or to make the
alteration, as the case may be, or to show cause why such erection,
alteration, addition or other work should not be demolished or the
alteration should not be made.
(2) The Commissioner may issue a notice under Sub-section (1)
notwithstanding the fact that the valuation of such building has been made
under Chap. XI for the assessment of the consolidated rate,
(3) If the person responsible fails -
(a) to demolish such erection, alteration, addition or other work, or
to make the alteration, or
(b) to show sufficient cause to the satisfaction of the Commissioner
as the case may be, why such erection, alteration, addition or other
work, should not be demolished, or the alteration should not be
made, the Commissioner may order -
( i ) the demolition of the erection, alteration, addition or
other work, or
(ii) the making of the alteration :
Provided that a copy of the order shall be served upon the owner and the
occupier thereof and no such action shall be taken until the expiry o f thirty
days from the date of the service of the said order.
Provided further that where the structure does not contravene any of the
provisions of this Act or the Rules made thereunder, the Commissioner may,
without prejudice to any other action that may be taken against the person
concerned under the provisions of this Act or the Rules made thereunder,
allow him to submit proper plan under the rules referred to in Schedule XVI
and sanction such plan.
(4) Notwithstanding anything contained in the foregoing Sub-sections, no
action shall be taken under this section in respect of any erection, alteration,
addition or other work executed more than twelve years before the issue of
the notice under Sub-section (1) :
Provided that the onus of proving that the work was done more than
twelve years previously shall lie on the person responsible.
(5) In this section the expression "person responsible" include the owner,
the occupier and any other person who executes the erection, alteration,
addition or other work or who is liable to mark any alteration , required by
any notice issued under Rule 22 of Schedule XVI, 414A. Appeal. Any person
dissatisfied with the order of the Commissioner made under Sub-section (3)
of Section 414 may, within thirty days from the date of the order, present an
appeal accompanied by a copy of the order of the Tribunal constituted under
Section 391B, and the President of the Tribunal may stay the execution of the
order for such period or periods as he may think fit or until the disposal of
the appeal."
1 9 . Section 414 provides for demolition or alteration of building work unlawfully

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commenced, carried on or completed. Under Sub-section (1) of Section 414, the
Commissioner may by written notice require the person responsible to demolish such
erection, alteration, addition or other work or to make the alteration, as the case may
be, or to show cause why such erection, alteration, addition or other work should not
be demolished or the alteration should not be made. The written notice will be served
only on the person responsible. Under Sub-section (3) of Section 414, if the person
responsible fails to demolish or to show sufficient cause to the satisfaction of the
Commissioner, as the case may be, the Commissioner may order the demolition of
the erection, alteration, addition or other work, or the making of the alteration. Under
the first proviso to Sub-section (3), a copy of the order shall be served upon the
owner and the occupier thereof and no such action shall be taken until the expiry of
thirty days from the date of the service of the said order. Sub-section (5) of Section
414 defines the expression "person responsible". It is clear from the provisions of
Sub-section (1) and Sub-section (5) of Section 414 that the expression "person
responsible" only relates to a person who has something to do with the work of
construction or who is in a position to comply with an order of demolition. The said
expression does not include an occupier of the unauthorized construction, who has
nothing to do with the work of such construction or any addition to it. There is no
dispute with regard to the above interpretation of the expression "person
responsible". It is not also disputed by the appellants that none of them is a "person
responsible" within the meaning of Sub-section (5) of Section 414 of the Act. The
appellants claim to be the occupiers of the building in respect of all the floors
excepting the first floor of which the Rajasthan Bank of India Ltd. is the occupier. It
is also claimed by the appellants that they became tenants of the said building under
the respondent No. 11, Shyam Lal Agarwalla, before the first demolition order dated
May 15, 1978 was passed by. the Corporation.
2 0 . The contention of the appellants is that, as the copies of the subsequent
demolition orders dated April 21, 1981 were not served on them, the action of the
Corporation in proceeding to demolish the building is highly illegal and ultra vires the
first proviso to Sub-section (3) of Section 414 of the Act. It is submitted on behalf of
the appellants that if the copies of the demolition orders had been served on them
they could have preferred appeals before the Building Tribunal under Section 414A of
the Act. In this connection, it may be stated that although Section 414A provides that
the appeal shall be filed within thirty days from the date of the order, in our opinion,
on a proper construction of the provision, it should be held that the period of thirty
days should be computed not from the date of the order, but from the date of the
service of the copy of the order on the owner and the occupier or from the date of
knowledge of the. order of such owner and occupier. It is, accordingly, submitted on
behalf of the appellants that so long as the copies of the subsequent demolition
orders are not served on the appellants, the Corporation has no jurisdiction to
demolish the further unauthorized construction. It is urged that non-service of the
copies of the demolition orders on the appellants has deprived them of their valuable
right of appeal under Section 414A of the Act. On this ground, the appellants submit
that the Corporation should be prohibited from demolishing the building without
complying with the provision of the first proviso to Section 414 (3). The further
submission of the appellants is that the copy of the demolition order has to be served
not only on the occupier who was in occupation of the unauthorized structure at the
time when the demolition order was passed, but also on the occupier who came later.
In other words, the contention of the appellants is that whenever any occupier comes
to occupy the unauthorized structure before the execution of the demolition order,
the execution should be deferred until the expiry of thirty days from the date of
service of the order on such occupier.

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21. On the other hand, Mr. Pradip Ghosh, learned counsel appearing on behalf of the
respondents Nos. 1 to 5 including the Corporation of Calcutta submits that on a
proper construction of tha first proviso to Sub-section (3) of Section 414 of the Act,
it should be held that only that occupier who was there in the unauthorized structure
at the time of passing of the demolition order is required to be served with a copy of
the demolition order, and not any other occupier who comes to occupy the
unauthorised structure subsequent to the demolition order. It is the case of the
respondents Nos. 1 to 5 that at the time the first demolition order dated May 15,
1978 was passed, there was only one recorded occupier viz., Shyam Lal Agarwalla,
the respondent No. 11, and a copy of the demolition order having been served on
him, the corporation is not required to serve copies of the subsequent demolition
orders on any other occupier or the appellants who were not in occupation of the
unauthorized structure before May 15, 1978. So it is contended on behalf of the said
respondents that there is no substance in the contention of the appellants about non-
service on them of the copies of the demolition orders.
22. One significant fact that may be noticed is that although the appellants claim to
be in occupation of the building from before the first demolition order, they have not
made any grievance on account of non-service of the copies of the first demolition
order. They are only insisting on the service of copies of the two subsequent
demolition orders, both dated April 21, 1981. The first proviso to Sub-section (3) of
Section 414 clearly provides for the service of a copy of the demolition order on the
owner and the occupier and enjoins that no action shall be taken untill the expiry of
thirty days from the date of service of the order. The object of the service of the copy
of the demolition order on the owner and the occupier is clear, namely, it will enable
them to vacate the structure within thirty days of such service.
23. It is contended on behalf of the appellants that if the copies of the demolition
orders had been served on them, they could have preferred appeals under Section
414A of the Act. Section 414A confers a right of appeal to the Building Tribunal on
"any person" dissatisfied with the order of demolition. The expression "any person",
in our opinion, will undoubtedly Include an occupier. But, where an occupier is not a
person responsible, he cannot, in our opinion, challenge the demolition order on the
ground that the construction is authorized and lawful as having been made in
accordance with the provisions of the Act and the Building Rules. In such an appeal
preferred by an occupier, other than a person responsible, the only relief that can be
sought for by him is some more time so as to enable him to vacate the unauthorized
structure. In any event, in the instant case, the building being admittedly
unauthorized, there will be no scope for any argument in any appeal by an occupier
in justification of the construction of the building.
24. It is, however, submitted by the learned counsel for the appellants that as the
appellants and other occupiers are persons affected, they should be given an
opportunity of being heard before the enforcement of any demolition order. Section
414 including the first proviso to Sub-section (3) does not provide for such hearing
being given to the occupiers. As tias been observed before, an occupier not being a
person responsible will have no say against an order of demolition of the
unauthorized structure, except that he can ask for some time to vacate. The first
proviso to Sub-section (3) of Section 414 in effect gives a period of thirty days to the
owner and the occupier. We are unable to accept the contention of the learned
counsel for the appellants that no demolition order can be enforced without giving
the occupier an opportunity of being heard. The decision of the Supreme Court in the
Municipal Corporation of Greater Bombay v. Lala Pancham, MANU/SC/0284/1964 :

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[1965]1SCR542 , on which much reliance has been placed by the learned counsel for
the appellants, is not applicable to the facts and circumstances of the case for the
reasons stated hereafter. Sub-section (4) of Section 354R of the Bombay Municipal
Corporation Act, 1888 confers powers on the Commissioner of the Bombay Municipal
Corporation to order demolition of a building in the area declared to be a clearance
area. Clause (b) of Sub-section (4) of Section 354RA provides for the service of
notice, inter alia, on every person whose name appears in the assessment book as
primarily liable for payment of property tax and for specifying the time within and the
manner in which the objection to the demolition order can be made to the
Commissioner Clause (b) of Sub-section (4) of Section 354A of the said Act does not
provide for service of any notice on the tenants of the building ordered to be
demolished. On a construction of the said provision and the provision of Section
354R and in view of the fact that the tenants of the building are persons who would
be affected by the order of demolition, it has been held by the Supreme Court that
they are also entitled to lodge an objection to the order of demolition. Further, under
the provision of Section 354R, a demolition order can be passed on the ground that
the residential buildings are by reason of dis-repair not fit for human habitation or
for like reason dangerous or injurious to the health of the inhabitants of the area, and
that the conditions in the area can be effectually remedied by the demolition of all
the buildings in the area without making an improvement scheme. When, therefore, a
demolition order is passed under the said Act the tenants of the building which has
been ordered to be demolished, may have many things to say against the order of
demolition. It may be shown by them that the building is not unfit for human
habitation or dangerous or injurious to the health of the inhabitants. In the instant
case, however, the occupiers of the building in question will have nothing to say
against the demolition order. If the legislature had intended to give such an
opportunity to the occupier, it would have specifically provided for the same as it has
provided in the case of a person responsible in Section 414 (1) of the Act. So, in our
opinion, there is no question of giving the occupiers an opportunity of being heard
before the enforcement of the demolition order.
25. In support of his contention that the occupiers should be given an opportunity of
being heard by the Corporation before the enforcement of any demolition order, the
learned counsel for the appellants has drawn our attention to clause (b) of Section
557 (1) and Section 560 (1) of the Act. Section 557 confers on the Commissioner
power of entry into any premises, inter alia, for the purpose of execution of any work
which is authorized by the Act. Clause (b) of Section 557 (1) provides, inter alia, that
no dwelling-house and no public building or hut which is used as dwelling place shall
be entered without giving the occupier at least twenty-four hours' previous written
notice of the intention to make such entry. Section 560 (1) provides, inter alia, that
when any requisition or order is made under the Act or any rule or by-law made
thereunder, a reasonable period shall be prescribed In such notice for carrying such
requisition order into effect, and a reasonable period shall be prescribed in such
notice within which any written objection thereto shall be received by the municipal
authority or the municipal officer issuing the notice. We fail to understand how these
provisions are of any help to the contention of the appellants. So far as Section 557
(1) (b) is concerned, it is conceded by Mr. Pradip Ghosh, learned counsel for the
respondents Nos. 1 to 5 that at the time of actual demolition of the building in
enforcement of the demolition order, written notice mentioned in Section 557 (1) (b)
will be given to the occupiers of the dwelling units in the building. He, however,
submits and, in our opinion, rightly that Section 560 (1) has no bearing on the
question with which we are concerned. Section 560 (1), as has been noticed already,
only provides for specifying a reasonable period in the notice for carrying the

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requisition or order into effect and for the submission of any written objection
thereto. Section 560 (1) has, therefore, no manner of application to the facts and
circumstances of the instant case. The contention of the appellants, in our opinion, is
not tenable and is rejected.
26. In this connection, we may consider one contention of Mr. Pradip Ghosh, learned
counsel for the respondents Nos. 1 to 5. He has drawn our attention to Rules 59 and
60 of the Building Rules contained in Schedule XVI of the Act. Rule 59 directs the
owner of a building to send to the Commissioner a written notice by registered post
with acknowledgment due informing him of the fact of the completion of the
building: Rule 60 provides for the issuance of an occupancy certificate by the
Commissioner after he is satisfied on inspection that the building has been
constructed strictly in accordance with the Building Rules. Section 392 of the Act
enjoins that no new building or part of a new building shall be occupied for use until
and unless a certificate of completion of the building or that part of it has been
submitted to the Corporation. The cumulative effect of Section 392 and Rules 59 and
60 is that so long as the Corporation does not issue an occupancy certificate no one
can occupy the building. It is not disputed that no notice was served by the
respondent No. 11 on the Commissioner as to the completion of the building and,
consequently no occupancy certificate has been issued. Indeed, there is no question
of the granting of any occupancy certificate inasmuch as the building has been
constructed in defiance of the provisions of the Act and the Building Rules. The
learned counsel for the. respondents Nos. 1 to 5 submits that the occupation of the
appellants and others is wholly illegal and unlawful. It is contended by him that the
first proviso to Section 414 (3) does not contemplate the service of the copy of the
order of demolition on an occupier whose occupation is unlawful. We are unable to
accept this contention. The demolition order can be passed only in respect of an
unauthorized construction. When a construction is unauthorized, no occupancy
certificate can be issued by the Corporation under Rule 60 of the Building Rules, and,
accordingly, the occupation of any occupier of such construction will be unlawful. In
spite of that, the first proviso to Section 414 (3) provides for the service of a copy of
the demolition order on such occupier. As has been already observed, the first
proviso, in effect, gives the owner and the occupier of an unauthorized construction
in respect of which a demolition order has been passed, a period of thirty days to
vacate the same, so that the demolition order can be enforced. It is, therefore, not
correct to say that because the occupation of the appellants of the building in
question is unlawful the Corporation is not required to serve the copies of the
demolition orders on them under the first proviso to Section 414 (3) of the Act.
2 7 . Now the question is whether each and every occupier who is found in the
unauthorized building at the time of the execution of the demolition order should be
served with a copy of the order. It is the contention of the appellants that if any
person comes to occupy the building before the execution of the demolition order, he
has to be served with a copy of the order and, consequently execution will have to be
deferred for thirty days as provided in the first proviso to Section 414 (3) of the Act.
This will mean that each time the Corporation proceeds to demolish the building, if a
new occupier is found in the building, he will have to be served with a copy of the
demolition order and the work has to be postponed for thirty days from the date of
service in our opinion, if such a contention is accepted, it will defeat the purpose and
object of Section 414 of the Act In that case, a demolition order may be defeated by
the owner of an unauthorized building or structure or a person responsible by
inducting a new occupier each time the Corporation starts the demolition work. A
statutory provision should not be interpreted in such a way as will render it nugatory.

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The interpretation should be such as to make the provision workable and consistent
with the object and purpose for which it has been enacted. On a proper construction
of the first proviso to Section 414 (3) of the Act, it seems that after a demolition
order is passed and copies of which are served on the owner and the occupiers for
the time being of the unauthorized structure, the Corporation will be entitled to start
the demolition work after the expiry of thirty days from the date of service of the
demolition order. No further copy of the demolition order is required to be served by
the Corporation on any person who comes to occupy the unauthorized structure
during the period of thirty days or during the period between the service of the
copies of the demolition order and the execution of the work of demolition. Any other
interpretation of the first proviso to Section 414 (3) of the Act will frustrate the very
object and purpose of the provision and the intention of the legislature. In other
words, the provision of Section 414 will be rendered inoperative.
28. The appellants have not admittedly been served with the copies of the demolition
orders as mentioned in the first proviso to Section 414 (3) of the Act. It is urged on
behalf of the appellants that, in any event, the Corporation cannot execute the
demolition work without serving copies of such orders. We have already discussed
the object of service of the copies of the demolition order on the occupiers. It has
been held by us that the only object is to give the occupiers a reasonable time to
vacate the unauthorized structure. The appellants are quite aware of the demolition
orders that have been passed and they have got plenty of time to vacate the building.
For the last few months litigations are going on and from time to time, there had
been publications in almost all the newspapers of the city of the reports of Court
proceedings. Indeed, on Feb. 17, 1982 the Corporation actually started the
demolition of the 14th Storey. The appellant No. 60 also filed a suit in the City Civil
Court, Calcutta on Feb. 5, 1982. From the above facts, it can be reasonably inferred
that all the other occupiers of the building ere quite aware of the demolition orders
and they have got plenty of opportunity to vacate the building. The question,
therefore, is whether the Corporation shall be directed to serve on the appellants and
other occupiers of the building copies of the demolition orders. In the circumstances
stated above and, in view of the object of the service of the copy of the demolition
order, we do not think the Corporation should be directed to serve copies of the
demolition orders on the occupiers of the building.
29. It is contended on behalf of the appellants that the occupiers have a statutory
right to claim service of the copies of the demolition orders on them. Technically it
may be correct, but the grant of any relief under Article 226 of the Constitution is
discretionary with this Court. Nobody can claim as a matter of right that he must be
given the relief he asks for in his writ petition. After considering the facts and
circumstances of the case, we are of the view that it is a fit case where we should not
exercise our discretion by issuing a mandate on the Corporation to serve copies of
the demolition orders on the occupiers of the building.
30. The next contention of the appellants is that even assuming that the Act does not
make any provision for giving an opportunity of being heard, rules of natural justice
require such opportunity being given to the occupiers of an unauthorized structure
before the structure can be demolished. To substantiate this contention, the learned
counsel for the appellants has placed reliance on some English and Indian decisions
which will be stated presently.
31. In Cooper v. Wandsworth Board of Works, (1863) 143 ER 414, the 76th Section
of the Metropolis Local Management Act empowers the District Board to alter or

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demolish a house, where the builder has neglected to give a notice of his intention to
build seven days before proceeding to lay or dig the foundation. Willes, J. observes
"I apprehend that a tribunal which by law invested with power to affect the property
of one of Her Majesty's subjects is bound to give such subject an opportunity of
being heard before it proceeds : and that that rule is of universal application, and
founded upon the plainest principles of natural justice." The principles of law laid
down in Cooper's case has been followed in Hopkins v. Smethwick, (1890) 24 QBD
712, where it has been observed by Wills, J. that in condemning a man to have his
house pulled down, a judicial act is as much implied as in fining him 51; and as the
local board is the only tribunal that can make such an order, its act must be a judicial
act, and the party to be affected should have a notice given him; and there is no
notice, unless notice is given at time when, and place at which the party may appear
and show cause. The decisions in Cooper's case and in Hopkings's case have been
followed in Urban Housing Co. v. Oxford City Council, (1940) 1 Ch. 70. It has also
been followed by the House of Lords in Ridge v. Baldwin, 1964 A- C. 40, where Lord
Morris observes that it is well established that the essential requirements of natural
justice at least include that before someone is condemned he is to have an
opportunity of defending himself, and in order that he may do so that he is to be
made aware of the charge or allegation or suggestion which he has to meet.
3 2 . So far as the Indian decisions are concerned, the learned counsel for the
appellants has placed reliance on a decision of Panckridge, J., in Indumati Debi
Chaudhuri v. Bengal Court of Wards, MANU/WB/0271/1937, where the learned Judge,
relying on the principles of law in Cooper's case and Hopkings's case and some other
English decisions, held that the making of en order of the Court of Wards declaring
that a female was incompetent to manage her property without notice to or hearing
the person affected by it constituted a breach of the principles of natural justice and
was in excess of any jurisdiction conferred by the Court of Wards Act and the Court
of Wards should be restrained from acting under it Now we may refer to two
Supreme Court decisions which have been relied on by the appellants. In State Bank
of India v. Rajendra Kumar Singh, MANU/SC/0260/1968 : 1969CriL J659 , the High
Court directed disposal of property consisting of some currency notes under Section
517 read with Section 520 of the Criminal Procedure Code without giving notice to
the person to whom the property was directed to be delivered by the Sessions Court.
In setting aside the order of the High Court, the Supreme Court observed that though
the statute, i.e., the Criminal Procedure Code was silent and did not expressly require
issue of any notice, there was in the eye of law a necessary implication that the
parties adversely affected should be heard before the Court makes an order of return
of the seized property. In State of J & K v. Haji Vali Mohammed,
MANU/SC/0536/1972 : [1973]1SCR801 , the Municipality sought to demolish the
structures in question which were in a dilapidated and dangerous condition by
serving 24 hours' notice Under Section 129 of the Jammu & Kashmir Municipal Act. It
was held by the Supreme Court that the time of 24 hours which was given for
demolition was so short that it could not be held to be a reasonable time. The
respondents had to make some arrangements for removal of either their goods or
business equipment or whatever articles that were lying in these buildings or
structures. So it was held that notices issued to the respondents did not comply with
the provision of Section 238 of the said Act, and that the time which was granted was
so short that it was not possible for the respondents either to comply with the notices
or to take any effective steps in the matter of filing any appeal or revision to the
appropriate authorities.
33. We have already discussed above that Section 414 (1) provides for the service of

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a notice on the person responsible so as to give him an opportunity of being heard.
The appellants who are the occupiers of the building in question and having no
connection whatsoever with the construction of the building have no right to claim an
opportunity of being heard against the demolition orders of the building. They are
only entitled to a reasonable time to shift to some other place. The first proviso to
Sub-section (3) of Section 414 has prescribed a period of thirty days from the date of
service of a copy of the order of demolition on the occupier during which the
demolition order will not be enforced. This really means that the occupier is given a
reasonable time to vacate the unauthorized structure. In the circumstances, we do
not think that the above decisions cited on behalf of the appellants are of any help to
them. In the Supreme Court decision in Haji Vali Mohammed's case (supra) 24 hours'
notice for the purpose of vacating the buildings or structures in question were
considered to be not reasonable. But, in the instant case, the first proviso to Sub-
section (3) of Section 414 of the Act gives to the occupier a period of thirty days to
leave the building or structure in question. So we do not find any merit in the
contention of the appellants based on the ground that the principles of natural justice
have been violated.
34. In challenging the action of the Corporation in the enforcement of the demolition
order, the appellants also take resort to fundamental rights guaranteed by the
Constitution. It is submitted on behalf of the appellants that the action of the
Corporation interferes with their fundamental rights to carry on business under Article
19(1)(g) and their personal liberty under Article 21 of the Constitution of India. They
also rely on right to property under Article 300A of the Constitution. It is contended
that as some of the appellants have been carrying on their business in the building in
question, the Corporation cannot interfere with their fundamental right to carry on
business save in accordance with law. Further, it is submitted that the demolition of
the building will deprive them of their personal liberty and, as such, the action of the
Corporation in enforcing the demolition order is ultra vires Article 21 of the
Constitution of India unless such demolition is carried out according to the procedure
established by law.
35. The further contention of the appellants is that they are not trespassers, but they
have lawfully acquired their tenancy right in the building, and that such right to
property of the appellants cannot be interfered with save by authority of law as
provided in Article 300A of the Constitution. In support of the above contentions, the
appellants have placed reliance on the decision of the Supreme Court in Kharak Singh
v. State of U. P. MANU/SC/0085/1962 : 1963CriL J329 . In that case, the
constitutional validity of Regn. 236 of U. P. Police Regulations came up for
consideration before the Supreme Court. By virtue of the said regulation, the
petitioner was subjected to surveillance by the police. The police constable entered
his house, knocked and shouted at his door, waked him up during the night and
disturbed his sleep. On a number of occasions the police had compelled him to get
up from his sleep and to accompany them to the police station to report his presence.
The majority, view of the Supreme Court was that Regulation 236 (b) which
authorizes "domiciliary visits" was ultra vires Article 21 of the Constitution and was
struck down. Reliance has also been placed on behalf of the appellants on the
decision of the Supreme Court in Smt. Maneka Gandhi v. Union of India,
MANU/SC/0133/1978 : [1978]2SCR621 . In that case, the petitioner's passport was
impounded. It was held by the Supreme Court that there was no good reason for
impounding the passport of the petitioner and, furthermore, the petitioner had no
opportunity of showing that the grounds for impounding it, either did not exist or had
no bearing on public interest.

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3 6 . We are unable to accept the above contentions of the appellants. The
fundamental rights cannot be availed o f in justification of an unlawful act or in
preventing a statutory authority from lawfully discharging its statutory duty. The
occupation o f the appellants in the unauthorized structure is unlawful in view of
Rules 59 and 60 of the Building Rules read with Section 392 of the Act. In Kharak
Singh's case or in Maneka Gandhi's case referred to above, it has not been laid down
by the Supreme Court that a citizen can conveniently rely on his fundamental right in
defending his illegal act A citizen whose occupation of a place is unlawful cannot
claim fundamental right to carry on business in such place. Personal liberty as
contemplated by Article 21 of the Constitution does not include any liberty to b e in
unlawful occupation. Even assuming that there is any such liberty, there cannot be
any grievance of the appellants that they are being deprived of such liberty by the
Corporation without following the procedure established by law. The procedure laid
down in Section 414 including the f i rs t proviso to Sub-section (3), is quite
reasonable, fair and just from the point of view of Article 21 of the Constitution and,
consequently, satisfies the test of reasonableness, a s laid down by the Supreme
Court in Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746
and in Nand Lal Bajaj v. State of Punjab, MANU/SC/0190/1981 : 1981CriL J1501
relied on by the appellants. It is, however, significant to be noticed that the
appellants have not challenged the constitutional validity of Section 414 on any
ground. So the question of reasonableness of the procedure provided in Section 414
of the Act does not arise. Be that a s it may, the Corporation has, in our opinion,
acted in accordance with the procedure prescribed by Section 414 of the Act and,
accordingly, there can be no question o: infringement of Article 21 of the
Constitution. The same reason applies with equal force to the contention of the
appellants based on their purported right to property under Article 300A of the
Constitution. In our opinion, there is no merit in the contention of the appellants that
their fundamental rights or their right of property are being interfered with by the
Corporation, and we overrule the same.
37. Lastly, it is argued on behalf of the appellants that before enforcing the order of
demolition, the Corporation should have provided the appellants with alternative
accommodation. It is submitted that although the Corporation has the power to
demolish an unauthorized structure, such power is coupled with a duty, that is to
say, the duty to provide alternative accommodations or, at least, to grant
compensation to the occupiers of the building, who will be dispossessed therefrom.
This argument seems to be an argument of despair. The Act does not make any
provision for alternative accommodation. The Corporation is a statutory body and it
has to act in accordance with the provisions of the statute. As the Act does not make
any provision for alternative accommodation, the Corporation has no right to provide
alternative accommodation to the occupiers, who will be displaced from the said
building.
38. As regards the claim of the appellants to compensation, our attention has been
drawn to Section 568 of the Act which provides, inter alia, that the Corporation may
pay compensation to any person who sustain damage by person of the exercise of
any of the powers vested by the Act, or by any rule or by-law, in any municipal
authority or in any mu nicipal officer or servant. A person to whom compensation
may be given by the Corporation under Section 568 refers to a per son who is a
stranger to the act in respect of which a municipal authority or municipal officer
exercises any of the powers vested in him by the Act. When such a person suffers
damage, the Corpo ration may pay compensation to him, but a person who is directly
or indirectly connected with an illegal act for which the municipal authority or officer

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has to exercise the powers under the Act, such a person cannot claim compensation
on the ground that he has suffered damage. The owner of an unauthorized structure
cannot insist on payment of compensation under Section 568 on the ground that the
un authorized structure having been demolished he has suffered damage. The
appellants are in unlawful occupation of the unauthorized building in question, and in
our opinion , they do not come within the purview of Section 568 for the purpose of
maintaining a claim for compensation for the damage that they may suf fer on
account of their dispossession from the unauthorized structure. There is, therefore,
no substance in the above contention of the appellants.
39. It is pointed out in the letter of the Chief Law Officer of the Calcutta Corporation
dated December 31, 1981 to the respondent No. 11, Shyam Lal Agarwalla (Annexure
H/1 to the affidavit-in-opposition) that the building is standing practically on the
support of the two adjoining premises on both sides of it and it may fall to the
ground at any moment on the slightest change in the soil structure in the foundation
and, as such, it is unsafe. Further it is pointed out that besides the building being
insecure and exposed to fire-hazard, it is really a deathtrap for the inmates of the
building as well as the passers-by. Cracks have already developed in the adjoining
premises and the building itself may crumble down at any moment like a pack of
cards. It appears also from the report of Shri R. S. Gupta, the Adviser (Fire),
Government of West Bengal, that there is no fire detecting or extinguishing system in
the building, as also no Fixed Fire-Fighting Installation, in the form of Rising Mains,
being kept charged with water by means of pump, for all time, with Hydrant
outlets/hose reels connecting all the floors. There are also no portable fire
extinguisher for first-hand fire fighting on any of the floors. The existing water tank
on the ground floor with a small electrical pump as was found, is totally insufficient
to meet the fire-fighting requirements There is also no alternative means of escape in
the building, in the form of an additional stair-case, connecting all the floors, as also
no "Fire Lift" for use by Fire Services Personnel, in the event of any fire, with the
exception of only one stair-case and lift, located at one end on the southern side. The
occupants including those in the adjacent buildings are likely to be affected by hot
air, smoke and heat in case of a fire. It has been observed that the building is
considered to be unsafe.
40. It, therefore, appears that not only that the building was constructed in violation
of the provisions of the Act and the Building Rules, it is also unsafe for human
habitation.
41. After considering the facts and circumstances of the case and the submissions
made on behalf of the parties, we are of the view that there is no merit in this
appeal. The appeal, therefore, fails and is dismissed. There will, however, be no
order as to costs. No order need be made on the application for interim order which
shall be deemed to have been disposed of along with the appeal.
4 2 . We, however, direct that the Corporation shall not enforce or execute the
demolition order for a period of thirty days from date so as to enable the owner and
the occupiers of the building to vacate the same. On the expiry of the period of thirty
days the Corporation will be at liberty to execute the demolition order.
F.M.A.T. No. 588 of 1982.
-44. In this appeal, the same arguments have been made by Mr. Dipankar Ghosh,
learned counsel for the appellant, the Bank of Rajasthan Ltd., and by Mr. Pradip

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Ghosh, learned counsel for the respondents Nos. 1 to 4 including the Corporation of
Calcutta as in Ram Awtar Agarwal v. The Corporation of Calcutta, F.M.A.T. 540, of
1982. For the same reasons as in Ram Awtar Agarwal's appeal, this appeal is
dismissed. There will, however, be no order for costs.
45. The respondents Nos. 1 to 4 shall not execute the order for demolition for thirty
days from date so as to enable the appellant to vacate the first floor of the building in
question being premises No. 174, Chittaranjan Avenue, Calcutta.
M.K. Mukherjee, J.
I agree.

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