w w w . L a w y e r S e r v i c e s . i n



Saraf Infra Projects Ltd. & Another v/s The State of West Bengal & Others


Company & Directors' Information:- V S A INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400TG2011PTC074588

Company & Directors' Information:- K N INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058128

Company & Directors' Information:- SARAF CORPORATION INDIA PRIVATE LIMITED [Active] CIN = U55100MH2006PTC159103

Company & Directors' Information:- SARAF PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2003PTC123445

Company & Directors' Information:- WEST BENGAL PROJECTS LTD [Active] CIN = U51109WB1984PLC037183

Company & Directors' Information:- B L INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2014PTC266491

Company & Directors' Information:- SARAF COMPANY PVT LTD [Active] CIN = U67120WB1984PTC037464

Company & Directors' Information:- K. C. INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209NL1990PTC003414

Company & Directors' Information:- K K INFRA PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45200TG2007PTC056630

Company & Directors' Information:- A E INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2009PTC196191

Company & Directors' Information:- B K SARAF PRIVATE LIMITED [Active] CIN = U36921UP1995PTC018759

Company & Directors' Information:- S R R INFRA PROJECTS LIMITED [Strike Off] CIN = U45209TG2008PLC058571

Company & Directors' Information:- N R R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70200TG2010PTC067299

Company & Directors' Information:- K AND G INFRA PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200KL2010PTC027108

Company & Directors' Information:- SARAF PROJECTS PVT LTD [Active] CIN = U51109AS1998PTC005497

Company & Directors' Information:- R Y INFRA PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45400TG2013PTC091764

Company & Directors' Information:- BENGAL INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165832

Company & Directors' Information:- K C R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2009PTC064374

Company & Directors' Information:- M. D. INFRA - PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2009PTC193074

Company & Directors' Information:- V G INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2011PTC074184

Company & Directors' Information:- J S V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70200TN2010PTC078632

Company & Directors' Information:- S P SARAF PRIVATE LIMITED [Active] CIN = U74900PN2013PTC147703

Company & Directors' Information:- BENGAL PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB2002PTC095516

Company & Directors' Information:- S. G. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2009PTC192400

Company & Directors' Information:- D & G INFRA AND PROJECTS PRIVATE LIMITED [Active] CIN = U45203PN2009PTC133571

Company & Directors' Information:- G INFRA PROJECTS LIMITED [Active] CIN = U45400TG2015PLC102010

Company & Directors' Information:- SARAF PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB1997PTC086149

Company & Directors' Information:- D. K. INFRA PROJECTS (INDIA) LIMITED [Strike Off] CIN = U45400WB2011PLC170421

Company & Directors' Information:- J S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2011PTC163788

Company & Directors' Information:- B S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151174

Company & Directors' Information:- M R INFRA & PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC074858

Company & Directors' Information:- G-9 INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45202MP2021PTC054704

Company & Directors' Information:- S V V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2009PTC065498

Company & Directors' Information:- K M M INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2013PTC088878

Company & Directors' Information:- A R INFRA PROJECTS LIMITED [Active] CIN = U45400DL2010PLC198594

Company & Directors' Information:- N-INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2008PTC057620

Company & Directors' Information:- M. M. INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165005

Company & Directors' Information:- D R R INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2007PTC055772

Company & Directors' Information:- R V INFRA PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC158257

Company & Directors' Information:- U M T INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2013PTC244469

Company & Directors' Information:- R K B INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2009PTC132587

Company & Directors' Information:- A H V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74999WB2012PTC180309

Company & Directors' Information:- G. S. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC174931

Company & Directors' Information:- P B S INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC060836

Company & Directors' Information:- R M INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC224655

Company & Directors' Information:- M C W INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74120MH2013PTC244153

Company & Directors' Information:- S. A. INFRA PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400TG2015PTC099812

Company & Directors' Information:- C Z INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400TG2016PTC103916

Company & Directors' Information:- P AND C INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TN2014PTC096607

Company & Directors' Information:- U K PROJECTS AND INFRA PRIVATE LIMITED [Active] CIN = U45200TN2015PTC102111

Company & Directors' Information:- M N C INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058369

Company & Directors' Information:- K V P INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC073318

Company & Directors' Information:- L K D INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45209TG2013PTC085748

Company & Directors' Information:- B R S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2013PTC248023

Company & Directors' Information:- D V INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200AP2014PTC095005

Company & Directors' Information:- N V R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP2015PTC097985

Company & Directors' Information:- D. B. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201GJ2010PTC059696

Company & Directors' Information:- R A INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U29309RJ2021PTC075070

Company & Directors' Information:- V J INFRA PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45500AP2021PTC118892

    APOT No. 123 of 2015 & GA No. 1029 of 2015 & WP No. 704 of 2012

    Decided On, 19 August 2016

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE CHIEF JUSTICE DR.(MRS.) MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Appearing Parties: Shakti Nath Mukherjee, Senior Advocate, Tarique Quasimuddin, Sanchita Chaudhury, Sadhan Roychowdhury Govt. Advocate, T. M. Siddiqui, Advocate, L. K. Gupta, Addl. A. G, Biswajit Mukherjee, Gopal Chandra Das, Debangsu Mondal, A. Dey, Somnath Bose, Jatinder Singh Dutt, Advocates.



Judgment Text

Arijit Banerjee, J.

(1) The writ petitioners/appellants approached the Learned Single Judge by filing WP No. 704 of 2012 seeking a declaration that Sections 628 and 629 of the Kolkata Municipal Corporation Act, 1980 (In short the ‘KMC Act’) are ultra vires the Constitution of India and for a writ of prohibition prohibiting the respondent no. 4 (Union of India) from insisting on exercising its right under the said Sections. By a judgment and order dated 20 March, 2015, the learned Single Judge dismissed the writ application by holding that the reliefs sought in the writ petition including the declaration that Sections 628 and 629 of the KMC Act are ultra vires the Constitution of India cannot be granted.

Case of the appellants:-

(2) On the basis of an application dated 8 January, 2008 under Section 393 of the KMC Act, a building permit was issued in favour of the appellant company for construction of a multi-storied building for hotel purpose on Premises No. 5/1 Munsi Prem Chand Sarani, Calcutta. The building plan was sanctioned on 16 April, 2009. Prior to obtaining the said sanction the appellants obtained clearance from various Departments and authorities, namely, Ministry of Tourism, Govt. of India, Ministry of Commerce and Industry, Govt. of India, the West Bengal Pollution Board Control, Kolkata Police, West Bengal Fire Services, International Airport Authority, Bharat Sanchar Nigam Limited, and Survey of India. While according the sanction to the building plan, the KMC did not ask for any permission under Sec. 628 of the KMC Act.

(3) The appellants completed a 14 storied structure and started fitment work and for that purpose incurred expenditure in the region of Rs. 180 crores. Learned Counsel for the appellants contended that there exists total confusion between KMC and the Army Head Quarters, Bengal Region, as regards the identity of the area in respect whereof the provision of Sec. 628 of the KMC Act applies. Since 1984, when the KMC Act, 1980 became operative, till date there has been no clarification or understanding between the KMC and the Army Authorities in this regard.

(3) When the appellant company applied for beautification by barren land belonging to the Defence Department in front of the proposed hotel, the Army Authorities started raising objection with regard to the building constructed by the appellants company.

(4) Learned Counsel for the appellants submitted that the short question that arises for consideration is whether or not the absence of permission as contemplated by Sec. 628 of the KMC Act will invalidate the building plan duly sanctioned by the KMC and consequently whether the construction already completed in accordance with the plan will require demolition under Sec. 629 of the KMC Act. Secs. 628 and 629 of the KMC Act provide as follows:-

'S. 628. Sanction of Central Government required for erection of masonry building.- The Corporation shall not give or be deemed to have given permission to erect a masonry building in that part of Hastings which is included in Kolkata unless and until the sanction of the Central Government has been obtained; and such sanction shall not be applied for unless the plan of the building and the site-plan of the land are approved by the Commissioner of Police.

S. 629. Demolition or alteration of buildings erected without such sanction._ (1) If the erection of any masonry new building in that part of Hastings which is included in Kolkata is, after the commencement of this Act, commenced, carried on or completed without obtaining the sanction of the Central Government, the Municipal Commissioner shall, if requested by the General Officer Commanding the Presidency District to do so,_

(a) by written notice direct the owner to demolish or alter the building, or

(b) himself cause the building to be demolished or altered at the expense of the owner.

(2) No person shall be entitled to any compensation on account of such demolition or alteration.'

(5) Before us, the appellants did not urge the point of vires of the said Sections of the KMC Act. The short point urged by the appellants is that in the absence of notification under Sec. 3 of the Works of Defence Act, 1903 (hereinafter referred to as ‘1903 Act’), Sections 628 and 629 of the KMC Act would not operate and cannot be implemented so as to affect the appellants’ right to property. Sec. 3 of the 1903 Act provides as follows:-

' S. 3. Declaration and notice that restrictions will be imposed._ (1) Whenever it appears to the (Central Government) that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders.

(2) The said declaration shall be published in the (Official Gazette) and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in Section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality.

(3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.'

(6) Learned Counsel submitted that there is no dispute that no declaration under Sec, 3(1) has been made by a duly authorised officer of the Central Government. Similarly, there is no dispute that there is no publication of any declaration in the Official Gazette together with specification of the area with reference to a sketch plan as required by Sec. 3(2) of the 1903 Act.

(7) Sections 4 and 6 of the 1903 Act confer power upon the Central Government to do certain acts only after publication under Sec. 3(2) of a declaration under Sec. 3(1) of the said Act. Sec. 9 of the Act provides for notice to be issued to all persons interested in the land in question. Sec. 12 provides for enquiry and award by the Collector. Section 6(2) provides that powers conferred by sub-Sec. (1) of Sec. 6 shall not be exercised before the making of an award under Sec. 12 excepting cases of emergency as contemplated by sub-Sec. (3) of Sec.6. Sub-Section (1) of Section 6 confers power on the Central Government to, inter alia, demolish any building or construction made on the notified land.

(8) Learned Counsel submitted that it is an admitted position that the protection of the places and works of defence and ensuring their safety and security is within the exclusive jurisdiction of the Central Government under entries 1 to 4 of List I of the 7th Schedule to the Constitution of India. In particular, entry 4 pertains to ‘Naval, Military and Air Force Works’. In this connection reference was made to Art. 246 of the Constitution of India which provides as follows:-

'Art. 246. Subject matter of laws made by Parliament and by the Legislatures of States._ (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule.

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1),the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule.

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule.

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.'

(9) Learned Counsel also referred to Art. 254 of the Constitution of India which provides as follows:-

'Art. 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States._ (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'

(10) Art. 372 (1) of the Constitution provides that notwithstanding the repeal by the Constitution of the enactments referred to in Art. 395 but subject to the other provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent Authority.

(11) Learned Counsel submitted that it is true that the Secretary of the Defence Department has determined that the plot in question is within the Hastings area. However, such determination by the defence Secretary could be made only after declaration under Sec. 3 of the 1903 Act and publication thereof in accordance with the said Section. Sub-sections (1) and (2) of Sec. 3 read together make it abundantly clear that the question of imposing any restriction can only arise only when there is publication of a declaration together with publication of a sketch plan and not otherwise. In this connection Learned Counsel relied on the well-known decision of the Privy Council in the case of Nazir Ahmad-vs.-King-Emperor, AIR 1936 PC 253, in support of his submission that when a statute confers a power on an Authority to do a certain thing in a certain way, the thing must be done only in that way or not at all. Other methods of performance are necessarily forbidden. (12) Learned Counsel then referred to six decisions of the Hon’ble Apex Court in which the aforesaid proposition of law laid down in Nazir Ahmad’s case (supra) has been followed without any dissent;

(i) State of U. P.-vs.-Singhara Singh, AIR 1964 SC 358 (361).

(ii) Dhananjaya Reddy-vs.-State of Karnataka, AIR 2001 SC 1512 (1518-19).

(iii) A. K. Roy-vs.-State of Punjab, AIR 1986 SC 2160 (2164).

(iv) Ram Phal Kundu-vs.-Kamal Sharma, (2004) 2 SCC 759 (773).

(v) Gujarat Urja Vikas Nigam Ltd.-vs.-Essar Power Ltd., (2008) 4 SCC 755 (para 35).

(vi) Ram Deen Maurya-vs.-State of Uttar Pradesh, (2009) 6 SCC 735 (para 41).

(13) Learned Counsel submitted that in the absence of a declaration under Sec. 3 of the 1903 Act, no administrative action by any officer of the Central Government or any State or any State Legislature can nullify the operation and scheme of the Central Legislation namely, 1903 Act.

(14) It was next submitted that the Learned Trial Judge has observed that ‘it is worth mentioning that the writ petitioners have not challenged the Constitutional validity of the Works of Defence Act, 1903 or the Cantonment Act, 2006 as unreasonable or interfering with their right to property’. Learned Counsel submitted that there is no question of applicability of the Cantonment Act, 2006 as admittedly the area is governed by the KMC Act. Further, there is no question of the appellants questioning the Constitutional validity of the 1903 Act. On the contrary, the whole case of the appellants challenging the validity and legality of Secs. 628 and 629 of the KMC Act is founded on the scheme and operation of the 1903 Act.

(15) Learned Counsel then submitted that a restriction on the right to use property is to be strictly construed. In this connection he relied on a decision in the case of Bhavnagar University-vs.-Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111. In particular he relied on paragraphs 27 and 40 of the judgment which are set out hereinbelow:-

'27. An owner of a property, subject to reasonable restrictions which may be imposed by the legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under the statute would not be presumed.

40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.'

He also relied on a decision in the case of State of Rajasthan-vs.- Basant Nahata, (2005) 12 SCC 77. At paragraph 59 of the judgment the Hon’ble Apex Court observed that in the absence of any substantive provisions contained in a Parliamentary or Legislative Act, a person cannot be restrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right of property as envisaged under Art. 300A of the Constitution of India. (16) Learned Counsel summarised the grievances of the appellants as follows:-

(i) The appellants being the owners of the property in question, they can be deprived of the user of the property only by authority of law.

(ii) As the property is alleged to be in an area of the works of defence as it is in the neighbourhood of Fort Willam, it comes within the exclusive legislative field of the Union of India under Entry 4 of List I of the 7th Schedule, to the Constitution and under Art. 246, Parliament alone and not the State Legislature has legislative competence.

(iii) The 1903 Act, a Central Government Act, as an existing law continues to remain in force, under Art. 372 of the Constitution until amended or repealed.

(iv) Under the 1903 Act a restriction or prohibition can be imposed under Sec. 3 only by a notification of the Central Government published in the Official Gazette and authenticated by the specifically authorised person.

(v) The area to be affected is to be identified by boundaries and indicated in a sketch by the Central Government under Section 3(2) of the 1903 Act.

(vi) Undisputedly there is no declaration or notification under Sec. 3 of the 1903 Act.

(vii) When the mode of doing an act is specified by the 1903 Act, even the Central Government in exercise of its executive power cannot do it otherwise.

(viii) The Defence Secretary in exercise of his executive power cannot decide and declare that the property of the appellant company is within Hastings and Hastings is a protected area. Such an area is to be declared and identified by a notification and sketch which admittedly have not been done.

(ix) In such circumstances Sections 628 and 629 of the KMC Act cannot have any operation so as to affect the appellants’ right to property.

(x) The KMC Act is a State Act and is well within the legislative field of the State namely, entry 5 of List II of the 7th Schedule to the Constitution. It is true that incidental encroachment by a State law on the central field is permissible under the doctrine of pith and substance. However, this is not a case of incidental encroachment but of affection of Central law within the Central List by a State law which would render the State law void under Art. 246 of the Constitution.

(xi) The State Legislature cannot declare Hastings as an affected area when under the 1903 Act, the same can be done only by the Central Government by a notification with reference to a sketch and the restriction or prohibition can be imposed by the Central Government only by a notification. Neither, the specification of the area nor the imposition of the restriction can be done otherwise.

(xii) The effect of Sections 628 and 629 of the KMC Act is to affect, alter and/or amend the Central Act namely the Works of Defence Act, 1903 and for that reason the aforesaid provisions of the KMC Act are void.

(17) Learned Counsel referred to the decision in the case of Prof. Yashpal-vs.-State of Chattishgarh, (2005) 5 SCC 420, wherein at paragraph 48 of the judgment, the Hon’ble Apex Court observed that any State legislation which sets at naught an enactment validly made by Parliament would be wholly ultra vires.

(18) Learned Counsel then submitted that there is a difference between the doctrine of pith and substance and the doctrine of occupied field in the context of principles embodied under Arts. 246 and 254 of the Constitution of India and principles analogous thereto. The doctrine of pith and substance means that where a question arises for determination whether a particular law relates to a particular subject mentioned in one list or another, the Court looks to the substance of the matter. Thus, if the substance falls within the Union List, then the incidental encroachment by a Central law on the State List does not make it invalid. In the case of Prafulla Kumar-vs.-Bank of Commerce, Khulna, AIR 1947 PC 60, the Privy Council held that a State law dealing with money lending (a State subject under the Government of India Act, 1934) is not invalid merely because it incidentally affects promissory notes (Union List, Entry 46).

He submitted that the doctrine of pith and substance does not mean that a State law made under its own exclusive list can override a Central law made under List I (Central List) or List III (Concurrent List). Incidental encroachment upon the Central List is not the same thing as the affection of a Central Legislation falling within its own exclusive list. When a Central Act is occupying its own exclusive field, there can neither be an offensive encroachment or modificated affection by the State Legislation.

(19) Learned Counsel submitted that under Art. 246 (3) the exclusive power of the State Legislature even in respect of List II is subject to Clause (1) and Clause (2) of the said Article which confer legislative power upon Parliament in respect of List I. The operation of clause (1) of Art. 246 is not withstanding anything contained in clauses (2) and (3) and the operation of clause (3) is subject to clauses (1) and (2). Thus, from a constitutional point of view, the Central Act will be effective and the State Act to the extent of encroachment on the Central field will be ineffective and inoperative. In this connection, Learned Counsel relied on ‘Principles of Statutory Interpretation’ by G. P. Singh, 13th Ed., pages 594-596. Reliance was also placed on the decision of the Constitution Bench of the Hon’ble Supreme Court in the case of Association of Natural Gas-vs.-Union of India, (2004) 4 SCC 489. At paragraph 15 of the judgment it was observed as follows:-

'15. Although Parliament cannot legislate on any of the Entries in the State List, it may do so incidentally while essentially dealing with the subject coming within the purview of the Entry in the Union list. Conversely, State Legislature also while making legislation may incidentally trench upon the subject covered in the Union List. Such incidental encroachment in either event need not make the legislation ultra vires of the Constitution. The doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation. However, when there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the conflict.'

Learned Counsel submitted that the irreconcilable conflict between Sections 628 and 629 of the KMC Act on the one hand and the whole scheme of 1903 Act on the other is that in total disregard of the 1903 Act the State Legislation seeks to empower the Army Officer to approve or disapprove the building plan in the absence of a declaration with sketch map under Sec. 3 of the 1903 Act.

(20) Learned Counsel urged that ‘Hastings’ area referred to in Sec. 628 of the KMC Act has not been defined in the Act nor is the geographical extent of the Hastings known either to the KMC or the Army Authority. Reference was made to a letter dated 25 September, 2010 written by the Director General, Building, KMC to the Army Authority wherein it was stated, inter alia, that ‘………….in the absence of boundary of Hastings in the Calcutta Municipal Corporation record, this department is not able to supply you the documents asked for, for ascertaining the jurisdiction of the General Officer Commanding, Bengal Area, for the clearance required.’

Learned Counsel also referred to a letter dated 21 March, 2011 written by the same officer of KMC to the Army Authority wherein it was stated, inter alia, that ‘although the KMC Act, 1980 came into force in the year 1984, even after expiry of almost two and half decades, no official communication has been received from your end restraining sanction of building plan within the Hastings area’.

The Army Authority in their reply dated 18 April, 2011 stated, inter alia, that ‘KMC Act, 1980 pertains to your Department and all provision contained therein are required to be followed in letter and spirit at your end. We appreciate that flaws have been identified at your end and sincerely hope that desired actions will certainly be initiated to regularise all buildings constructed in Hastings Area violating provisions of the KMC Act, 1980’.

Referring to the aforesaid three letters, learned Counsel submitted that the geographical contours of the Hastings area was not even known either to the KMC or the Army Authority and to introduce a restriction what was required was a Gazette notification specifying the area in a sketch map under Sec. 3(2) of the 1903 Act.

(21) It was then submitted that while referring to Public Policy behind the restrictions under Sections 628 and 629 of the KMC Act, the Learned Judge failed to take into consideration the extent and the object of public purpose reflected and embodied in the 1903 Act and there cannot be any public purpose or policy that can be invoked by the State Legislature in disregard of the Central Act entirely occupying the field. He submitted that if a declaration is made under Sec. 3 of the 1903 Act, the provisions of Secs. 628 and 629 of the KMC Act may revive and become operative consistently with the declaration under Sec. 3 of the 1903 Act and until then the State provisions will remain in eclipse till the repugnancy persists.

(22) The Defence Department has issued two circulars in exercise of its executive power. Under the earlier circular dated 18 May, 2011, construction beyond 500 metres was exempted and under the subsequent circular dated 18 March, 2015 the 500 metres bar has been declared to be not applicable to constructions already made. It is submitted that in any case such executive or administrative circulars cannot affect the appellants’ right to property under Art. 300A which contemplates deprivation of the right only by valid law made by the Competent Legislature. In the instant case there is no such valid law.

(23) Further, the determination of the area of Hastings by the Defence Secy. apart from being without the authority of law cannot have retrospective effect so as to affect the constructions already made by the appellants.

(24) Learned Counsel relied on an observation of the Hon’ble Supreme Court in the case of Satwant Singh Sawhney-vs.-A.P.O, New Delhi, AIR 1967 SC 1836, to the effect that one of the aspects of Rule of Law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority (para 33).

(25) Learned Counsel referred to the Supreme Court decision in the case of Prof. Yashpal-vs.-State of Chhattisgarh , (2005) 5 SCC 420, and in particular to paragraph 48 thereof which runs as follows:

'32. Any State legislation which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. We are fortified in our view by a Constitution Bench decision in R. Chitralekha v. State of Mysore AIR 1964 SC 1823 where power of the State under Entry 11 List II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for consideration. Subba Rao, J. after quoting the following passage from Gujarat University vs. Shri Krishna AIR 1963 SC 703:

"The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the coordination of such standards either on an All India or other basis impossible or even difficult."

enunciated the following principle defining the contours of the legislative powers of States vis-a-vis Union so as to steer clear of any overlap or collision:

"This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the import of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case."'

(26) He then relied on a decision of the Hon’ble Supreme Court in the case of ITC Ltd.-vs.-Agricultural Produce Market Committee, (2002) 9 SCC 232, wherein at paragraph 94 of the judgment it is observed as follows:-

'94. Although Parliament cannot legislate on any of the entries in the State List, it may do so incidentally while essentially legislating within the entries under the Union List. Conversely, the State Legislatures may encroach on the Union List, when such an encroachment is merely ancillary to an exercise of power intrinsically under the State List. The fact of encroachment does not affect the vires of the law even as regards the area of encroachment. This principle commonly known as the doctrine of pith and substance, does not amount to an extension of the legislative fields. Therefore, such incidental encroachment in either event does not deprive the State Legislature in the first case or Parliament in the second, of their exclusive powers under the entry so encroached upon. In the event the incidental encroachment conflicts with legislation actually enacted by the dominant power, the dominant legislation will prevent.'

(27) The last decision relied on by learned Counsel for the appellants is that of the Supreme Court in the case of State of Orissa-vs.-M/s. Tulloch and Co., AIR 1964 SC 1284, wherein at paragraph 15 of the judgment it was held as follows:-

'15. …………………The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed compression of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of S. 18(1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no suppression of the State Act.'

(28) On the basis of the aforesaid submissions, Learned Counsel for the petitioner prayed that the appeal be allowed.

Submissions made on behalf of KMC:-

(29) Learned Addl. Advocate General appearing on behalf of the KMC submitted that the Works of Defence Act, 1903, a pre-constitutional law, is protected by Art. 372 subject to other provisions of the Constitution. The said Act is not repugnant to any constitutional provision and on the contrary, fits well in the scheme of entries 1, 2, 3 and 4 of List I of the 7th Schedule to the Constitution. On the principles of distribution of legislative business as contained in Art. 246 of the Constitution, keeping in mind the federal structure of our Constitution, the Parliament is the supreme legislative authority in respect of the fields assigned to it by List I while the State legislature is supreme in enacting laws within the fields allocated to it by List II of the 7th Schedule. The plea of the appellants regarding ‘covered’ or ‘occupied’ field is misconceived in the context of a challenge to the vires of Secs. 628 and 629 of the KMC Act. Such plea is available only for legislations under List III (Concurrent List) and not for legislations under List I or List II. In this connection reliance was placed on a decision of the Hon’ble Supreme Court in the case of Hindustan Levervs.- State of Maharashtra, AIR 2004 SC 326, wherein at paragraph 35 of the judgment it wa s observed as follows:-

'35.If the matter is within the exclusive competence of State Legislature, i.e., List II then the Union Legislature is prohibited to make any law with regard to the same. Similarly, if any matter is within the exclusive competence of the Union, it becomes a prohibited field for the State Legislatures. The concept of occupied filed is relevant in the case of laws made with reference to entries in List III. The doctrine of covered field has to be applied only to the Entries in List III. This proposition of law is well settled in a number of decisions of this Court including State of A.P. & Ors. Vs. Mcdowell & Co. & Ors., 1996 (3) SCC 709; State of Rajasthan & Ors. Vs. Vatan Medical & General Store & Ors., 2001 (4) SCC 642 and Shri Krishsna Gyanoday Sugar Ltd. & Anr. Vs. State of Bihar, 2003 (2) Scale 226.'

Learned Counsel also relied on a decision of the Hon’ble Supreme Court in the case of Security Association of India-vs.-Union of India, (2014) 12 SCC 65. In that case the Hon’ble Supreme Court observed that it is a well-established principle that there is a presumption towards the constitutionality of a statute and the courts should proceed to construe a statute with a view to uphold its constitutionality. The question of repugnancy arises only in connection with the subjects enumerated in the Concurrent List i.e. when a State law and Central law pertain to the same entry in the Concurrent List. Prior to determination whether there is any repugnancy or not, it has to be determined that the State Act and the Central Act both relate to the same entry in List III and there is a direct and irreconcilable conflict between the two in the sense that both the provisions cannot stand together. Art. 254 of the Constitution is only applicable when the State law is in its ‘pith and substance’ a law relating to an entry in the Concurrent List on which Parliament has legislated. The Court while examining the pith and substance of a statute must examine the whole enactment, its objects, scope and effect of its provision. Only if it is found that the two enactments cover substantially the same matter, and that there is a direct and irreconcilable conflict between the two, the issue of repugnancy arises. Learned Counsel then submitted that the fields of legislature in enacting the KMC Act may be traced to entries 1, 5 and 6 of List II. Entry 1 is public order excluding the use of any Naval, Military or Air Force or any other Armed Force of the Union or of any other Force subject to the control of the Union or of any contingent or unit thereof. Entry 5 is local Government i.e. the constitution and powers of Municipal Corporations, improvement trusts, District Boards, Mining Settlement Authorities of and other local authorities for the purpose of local self-Government or village administration. Entry 6 is public health and sanitation, hospitals and dispensaries. He submitted that one Act may come under many entries and in this connection he relied on a decision of the Hon’ble Supreme Court in the case of M/s. Ujagar Prints-vs.-Union of India, AIR 1989 SC 516, para 25.

(30) Mr. Gupta, then submitted that entries 1, 5 and 6 of List II permit State Legislature to legislate without touching upon entries 1, 2, 3 and 4 of List I. Sections 628 and 629 of the KMC Act derive their authoritative field from entry 1 of List II. The State Legislature is supreme in this field and not dependent on anything done or not done by a Central Legislation. He submitted that there are some areas in the constitutional scheme where a field assigned to a State legislature is made ‘subject to’ some specified entries in List I, e.g. entry 24 of List II which is ‘industries subject to the provisions of entry 7 to 52 of List I’. In those situations though ‘covered field’ concept is unavailable, the question of repugnancy may arise and in that case, the Central legislation will prevail. Entry 1 of List II is not such a restricted legislative field. ‘Public order’ is entirely a State subject. It is a concept of wide import and control on construction in strategic areas or generally to maintain public order is a permissible legislative exercise.

As regards the meaning of ‘public order’, Learned Counsel relied on four decisions of the Hon’ble Apex Court:

(i) In the case of Kanu Biswas-vs.-The State of West Bengal, AIR 1972 SC 1656, at paragraph 5 of the judgment the Hon’ble Apex Court observed that any contravention of law always affects order, but before it could be said to affect public order, it must affect the community at large. Public order is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order is whether or not it leads to disturbance of the collective life of the community so as to amount to a disturbance of the public order or whether it merely affects an individual leaving the tranquillity of the society undisturbed.

(ii) In the case of Kishori Mohan Bera-vs.-The State of West Bengal, AIR 1972 SC 1749, at paragraph 7 of the judgment the Hon’ble Supreme Court referred to its earlier decision in Dr. Lohia-vs.-State of Bihar (1966 (1) SCR 709). In that case, the Hon’ble Supreme Court explained three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law and order may not necessarily affect the public order and likewise, an act may affect public order but not necessarily the security of the State.

(iii) In the case of Ram Ranjan Chatterjee-vs.-The State of West Bengal, (1975) 4 SCC 143, at paragraph 8 of the judgment, the Hon’ble Supreme Court observed that the distinction between ‘law and order’ and ‘public order’ is one of degree and extent of the reach of the act in question on the society. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. The concentric concepts of ‘law and order’ and ‘public order’ may have a common ‘epicentre’, but it is the length, magnitude and intensity of the terror wave unleashed by a public eruption of disorder that helps distinguish an act affecting ‘public order’ from that concerning ‘law and order’.

(iv) In the case of Arun Ghosh-vs.-State of West Bengal, (1970) 1 SCC 98, the Hon’ble Supreme Court observed that ‘public order’ embraces more of the community than ‘law and order’. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity.

(31) Referring to the aforesaid decisions, Learned Senior Counsel submitted that there can be no doubt that providing for statutory restrictions and conditions on the construction of buildings, particularly high rise buildings, comes within the broad sweep of public order. Public order as a field of legislation is exclusively assigned to the State legislature which is supreme to make legislation thereon and the plea of lack of legislative competence of the State legislature is not available. In making law as in Secs. 628 and 629 of the KMC Act, the State legislature has not touched upon a Central field even remotely or incidentally. Thus, the doctrine of pith and substance is not necessary to be resorted to in order to protect Secs. 628 and 629 of the KMC Act.

(32) Learned Senior Counsel then submitted that an administrative/executive action, like sanctioning of a building plan in total disregard of Secs. 628 and 629 of the KMC Act, is void for its illegality and a plea of estoppel against statute is not available. The fact that the property in question is within Hastings area cannot and has not been disputed in the writ petition. The address of the property also shows that it is in Hastings. In this connection, Learned Counsel referred to the affidavit dated 15.03.2016 affirmed on behalf of the KMC by the Deputy Chief Engineer (Building), Somnath Boral. In the said affidavit the deponent referred to the Smarts Map of Kolkata and the aerial photography of the Kolkata and by superimposing the same on the Kolkata Police notification dated 6 June, 2002 on Hastings Area, he has asserted that the premises in question is located well within the boundaries of Hastings area. Learned Counsel submitted that the superimposition of the aerial map on the Police Gazette is the most logical way to demarcate the Hastings area since Sec. 628 obviously has that object inasmuch as it requires as a condition precedent to sanction of a building plan, the approval of the site plan by the Commission of Police.

He submitted that an erroneous grant by a statutory functionary does not bind the statutory authority. Art. 14 of the Constitution does not confer a negative right. In this connection he relied on a decision of a learned Single Judge of this Court in the case of P. H. Avari-vs.- The State of West Bengal, 62 CWN 278. In that case it was observed that there can be no estoppel against Government on a point of law and construction of a statute. This court referred to the House of Lords decision in Howell-vs.-Falmouth Boat Construction Ltd. (1951 A.C. 837), wherein it was observed that the fact that the Government Officer in his dealings with the subject may have assumed an authority, which he did not possess, to grant licence, does not debar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no infraction of it. This court held that the Government and the administration cannot like an ordinary person be estopped by the acts of its numerous agents and officers which perform their work in a limited sphere and with their specially limited authority imposed by their very nature of work.

(33) In conclusion, Learned Addl. Advocate General submitted that Secs. 628 and 629 of the KMC Act are valid legislative provisions and do not suffer from lack of legislative competence. KMC is not only legally authorized but is legally obliged to enforce the said provisions. In the face of such statutory provisions the grant of sanction of the building plan was erroneous and the developers or the owners of the property in question are not entitled to hold on to the benefits of an illegal grant. They must also realize that as responsible citizens they have the obligation to follow the norms fixed by the statute. The object of ensuring public order being foremost in the mind of the legislature in legislating Sec. 628 is clearly decipherable from a plain reading of the provision. By a legislative fiction, even the actual sanctioning of a building plan in violation of Sec. 628 shall not be construed or deemed to be a grant of permission to erect a masonry building. Hence, in the eye of law the sanction granted in the present case shall not be deemed to be a grant.

Submissions made on behalf of Union of India:-

(34) Learned Senior Counsel appearing on behalf of UOI submitted that the KMC had no jurisdiction to grant sanction to the building plan in question without adhering to the mode prescribed by Sec. 628 of the KMC Act. The sanction obtained by the appellants being without jurisdiction is non-est in the eye of law and void ab initio and no right could have accrued to the appellants under such sanction. He submitted that the appellants have failed to establish that the State Legislature has transgressed into the field of Central Legislature in enacting Secs. 628 and 629 of KMC Act or that the said provisions have affected any legal, vested, fundamental or constitutional right of the appellants. The fundamental right to carry on business by exploiting the land forming part of the Hastings area is subject to the restrictions imposed by the Works of Defence Act, 1903 and subject to control by the Central Government as contemplated in Art. 19(6) of the Constitution of India. The impugned provisions of the KMC Act do not offend Art. 19(1)(g) of the Constitution in any manner.

(35) The building in question has been constructed in the immediate vicinity of the Fort William posing threat to the safety and security of Defence and is opposed to public policy of India. Hence the appellants are not entitled to seek any relief to protect the said building from demolition.

(36) Learned Counsel referred to as many as 24 decisions which are noted below:-

(i) Pt. Rishikesh & Anr.-vs.-Salma Begum (Smt), (1995) 4 SCC 718, paras 17 and 22.

(ii) State of Kerala & Anr.-vs.-M/s. Mar Appram Kuri & Co. Ltd. & Anr., (2012) 7 SCC 106, Paras 5, 6 and 97.1.

(iii) Reserve Bank of India-vs.-Peerless General Finance, (1987) 0 Supreme (SC) 83, para 33.

(iv) Commissioner of Wealth Tax-vs.-Smt. Hashmatunnisa Begum, (1989) 0 Supreme (SC) 26, paras 9, 10, 11 and 12.

(v) Tinsukhia Electric Supply Co. Ltd.-vs.-State Of Assam & Ors., (1989) 0 Supreme (SC) 234, paras 49.

(iv) Namit Sharma-vs.-Union of India, (2013) 1 SCC 745, paras 8-14, 18-21, 49-52 and 61.

(vii) J. K. Cotton Spinning and Weaving Mills Company Ltd.-vs.-State of UP, (1960) 0 Supreme (SC) 352, para 7.

(viii) Shiv Shakti Cooperative Housing Society, Nagpur-vs.-Swaraj Developers, (2003) 0 Supreme (SC) 474, paras 19-29.

(ix) Central Bank of India-vs.-State of Kerala, (2009) 4 SCC 94, paras 24, 25, 26 and 27.

(x) K. T. Plantation Private Ltd.-vs.-State of Karnataka, (2011) 9 SCC 1, paras 107, 108, 109, 110 and 205.

(xi) The State of Bombay & Anr.-vs.-F. N. Balsara, (1951) 0 Supreme (SC) 37, para 8.

(xii) India Cement Ltd. & Ors-vs.-State of Tamil Nadu & Ors., (1989) 0 Supreme (SC) 536, para 18.

(xiii) Jijubhai Nanbhai Kachar-vs.-State of Gujarat, (1994) 0 Supreme (SC) 677, paras 7 and 8.

(xiv) Bharat Hydro Power Corporation Ltd.-vs.-State of Assam, (2004) 2 SCC 553, paras 17 and 18.

(xv) Zameer Ahmed Latifur Rehman-vs.-State of Maharashtra & Ors., (2010) 5 SCC 246, paras 40-44.

(xvi) V. K. Sharma & Anr.-vs.-State of Karnataka, (SC)-1990-2-51, para 45.

(xvii) K. K. Baskaran-vs.-State of Tamil Nadu & Anr., (2011) 3 SCC 793, paras 9 and 17-27.

(xviii) Union of India-vs.-Dharmendra Textile Processors, (2008) 0 Supreme (SC) 1442, paras 11-16 and 17 to 20.

(xix) Gajraj Singh Etc.-vs.-The State Transport Appellate Tribunal & Ors., (1996) 0 Supreme (SC) 1452, para 23.

(xx) The Commissioner of Income Tax-Madras-vs.-Urmila Ramesh, (1998) 0 Supreme (SC) 111, para 9.

(xxi) UCO Bank & Anr.-vs.-Rajinder Lal Capoor, (2008) 0 Supreme (SC) 565, para 20.

(xxii) Ittianam & Ors.-vs.-Cherichi alias Padmini, (2010) 0 Supreme (SC) 628, paras 17 and 18.

(xxiii) Nandlal Wasudeo Badwaik-vs.-Lata Nandlal Badwaik & Anr., (2014) 0 Supreme (SC) 15, page 574, 2nd para.

(xxiv)Dipanwita Roy-vs.-Ronobroto Roy, (2014) 0 Supreme (SC) 754, para 18.

(37) In the case of Pt. Rishikesh & Anr. (supra), the Hon’ble Supreme Court observed inter alia that if law made by the State Legislature is reserved for consideration and receives assent of the President though the State Law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. In the case of State of Kerala & Anr.-vs.- M/s. Mar Appram Kuri & Co. Ltd. & Anr. (supra), the Hon’ble Court observed, inter alia, that Art. 254 (1) of the Constitution gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Art. 254(1) and both the Acts would prevail. Thus Art. 254 is directed only when legislations covering the same matter in List III made by the Centre and by the State operate on that subject. In the case of Reserve Bank of India-vs.-Peerless General Finance (supra), at paragraph 33 of the judgment the Hon’ble Supreme Court observed that interpretation of a statute must depend on the text and context. If the text is the texture, context is what gives colour. A statute is best interpreted when we know why it was enacted. No part of a statute and no word of a statute can be construed in isolation. The statutes have to be construed so that every word has a place and everything is in its place. In the case of Commissioner of Wealth Taxvs.- Smt. Hashmatunnisa Begum (supra), the Hon’ble Supreme Court discussed the rules of construction of a statute. In the case of Tinsukhia Electric Supply Co. Ltd.-vs.-State Of Assam & Ors.(supra), the Hon’ble Apex Court observed that the courts strongly lean against any construction which tends to reduce a statute to a futility. The provisions of a statute must be so construed as to make them effective and operative. In the case of Namit Sharma-vs.-Union of India (supra), the Hon’ble Apex Court, inter alia, dilated on the grounds on which a statute or a statutory provision can be declared to be unconstitutional and hence void. In the case of J. K. Cotton Spinning and Weaving Mills Company Ltd.-vs.-State of UP (supra), the Hon’ble Apex Court, inter alia, observed that in applying the rule of harmonious construction we have to remember that to harmonize is not to destroy. In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. In the case of Shiv Shakti Cooperative Housing Society, Nagpur-vs.-Swaraj Developers (supra) the Hon’ble Apex Court recounted the principles of statutory construction. In Central Bank of India-vs.-State of Kerala, (supra), the Hon’ble Apex Court, inter alia, discussed the effect of Arts. 246 and 254 of the Constitution. In the case of K. T. Plantation Private Ltd.-vs.-State of Karnataka (supra) the Hon’ble Apex Court inter alia, held that the plea of repugnancy can be urged only if both the legislations fall under the Concurrent List. That question arises under Art. 254 when the provisions of both laws are fully inconsistent or absolutely irreconcilable or conflicting results are produced when both the statutes covering the same field are applied to the same set of facts. In the case of The State of Bombay & Anr.-vs.-F. N. Balsara (supra), the Hon’ble Supreme Court observed that it is well-settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field, and therefore, it is necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature. In the case of India Cement Ltd. & Ors-vs.-State of Tamil Nadu & Ors. (supra), the Hon’ble Apex Court observed that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Art. 246 and other articles of the Constitution. The entries in the three lists demarcate the area over which appropriate Legislature can operate. Widest amplitude should be given to the language of these entries. Some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the Court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. In the case of Jijubhai Nanbhai Kachar-vs.-State of Gujarat (supra), the Hon’ble Apex Court referred to its decision in India Cement Ltd. (supra), and observed that the language of the respective entries in the three Lists should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved as far as possible, in favour of the legislature, putting the most liberal construction upon the legislative entry so that it may have the widest amplitude. When the court is called upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense and must adopt such construction which will be beneficial to the amplitude of legislative powers. In the case of Bharat Hydro Power Corporation Ltd.-vs.-State of Assam (supra), the Hon’ble Supreme Court observed, inter alia, that to examine whether a legislation has impinged on the field of other Legislations, in fact or in substance, or is incidental, keeping in view the true nature of the enactment, the courts have evolved the doctrine of ‘pith and substance’ for the purpose of determining whether it is legislation with respect to matter in one list or the other. Where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment. Thus, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This principle came to be established by the Privy Council when it determined appeals from Canada or Australia involving the question of legislative competence of the Federation of the States in those countries. This doctrine came to be established in India and has its genesis in the approach adopted by the Courts including the Privy Council in dealing with controversies arising in other Federations. In the case of Zameer Ahmed Latifur Rehman-vs.-State of Maharashtra & Ors. (supra), and in the case of K. K. Baskaran-vs.-State of Tamil Nadu & Anr. (supra,) the Hon’ble Apex Court restated the principle of pith and substance in deciding a challenge to legislative competence. In the case of Union of India-vs.- Dharmendra Textile Processors (supra),the Hon’ble Apex Court reiterated that while interpreting a statutory provision, the court only interprets the law and cannot legislate. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretation process, save in some case of strong necessity. In the case of Gajraj Singh Etc.-vs.-The State Transport Appellate Tribunal & Ors. (supra), the Hon’ble Apex Court discussed, inter alia, the effect of repeal of an Act. Whenever an Act is repealed it must be considered, except as to transactions past and closed, as it if never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed, as if it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. In the case of UCO Bank & Anr.-vs.-Rajinder Lal Capoor (supra), the Hon’ble Apex Court referred to its earlier decisions and observed that a legal fiction must be given full effect but it is equally well-settled that the scope and ambit of a legal fiction should be confined to the object and purport for which the same has been created. The Hon’ble Apex Court referred to its earlier decision in the case of Imagic Creative Pvt. Ltd.-vs.-The Commissioner of Commercial Taxes and Ors. ( JT 2008 (1) SC 496), wherein the Hon’ble Apex Court observed that a legal fiction should be applied only to the extent for which it was enacted. It although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the Legislature or which would lead to an anomaly or absurdity. The Hon’ble Apex Court further observed that while interpreting a statute one must bear in mind that the Legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and Legislative Act comes up for consideration, endeavours should be made to see that provisions of both the Acts are made applicable. In the case of Ittianam & Ors.- vs.- Cherichi alias Padmini (supra), the Hon’ble Apex Court observed that when legislature uses a deeming provision to create a legal fiction, it is always used to achieve a purpose. When a legal fiction is created one is led to ask at once for what purpose it is created. A legal fiction must be carried to its logical end. In the case of Nandlal Wasudeo Badwaik-vs.-Lata Nandlal Badwaik & Anr. (supra), the Hon’ble Apex Court held that there is a distinction between a legal fiction and the presumption of an fact. Legal fiction assumes existence of a fact which may not really exist. However, presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. The decision in this case was referred to and relied upon by the Hon’ble Supreme Court in the case of Dipanwita Roy-vs.-Ronobroto Roy (supra).

(38) Learned Counsel also adopted the submissions made by the Learned Addl. Advocate General and prayed for dismissal of the appeal.

Court’s View:-

(39) Two questions fall for determination by us. First is whether Secs. 628 and 629 of the KMC Act are ultra vires the Constitution. The second is whether in the absence of a notification under Sec. 3 of the Works of Defence Act, 1903, Secs. 628 and 629 of the KMC Act would operate so as to affect the appellant’s right to property.

(40) Generally, the constitutionality or validity of a statute is challenged on the following grounds:

(i) Contravention of any fundamental right specified in part III of the Constitution.

(ii) Legislating on a subject which was not assigned to the relevant legislature by the distribution of powers made by the 7th Schedule to the Constitution read with the connected Articles.

(iii) Contravention of any mandatory provision of the Constitution which imposes limitations upon the powers of a legislature.

(iv) In the case of a State law, if it seeks to operate beyond the boundaries of the State.

(v) The legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body.

(vi) Reasonableness of the legislation.

(41) There is a presumption in favour of the constitutionality of statutes. The law Courts can declare a legislative enactment to be an invalid piece of legislation only in the event of gross violation of constitutional sanctions. In Namit Sharma-vs.-Union of India (supra), the Apex Court referred to Author Jagdish Swarup’s book Constitution of India (2nd Ed.) wherein after referring to various judgments and particularly to the decision in Ram Krishna Dalmia-vs.-Justice S. R. Tendolkar (AIR 1958 SC 538), the principles for adjudicating the constitutionality of a provision have been stated as follows:-

(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstance or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

(c) It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.

(d) The legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest.

(e) In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.

(f) While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

(42) In the present case, Learned Senior Counsel for the appellants has contended that the protection of the places and works of defence and ensuring the safety and security thereof is within the exclusive jurisdiction of the Central Government under entries 1-4 of List I of 7th Schedule to the Constitution of India. In particular he has referred to entry 4 of List I which relates to ‘Naval, Military and Air Force Works’. According to him, Secs. 628 and 629 of the KMC Act seek to encroach upon a Central legislative field and are accordingly void. In the absence of a notification and declaration under Sec. 3 of the 1903 Act, Secs. 628 and 629 of the KMC Act cannot impose any restriction on the user of a property in the Hastings area, is the submission of Learned Senior Counsel. The question of obtaining permission of the Central Government under Sec. 628 of the KMC Act can only arise after the area in question in notified under Sec. 3 of the 1903 Act, submitted Mr. Mukherjee. Secs. 628 and 629 in total disregard of the scheme of the 1903 Act seeks to empower the Army Officer to approve or disapprove the building plan in the absence of a declaration with Sketch Map under Sec. 3 of the 1903 Act, which is impermissible.

(43) Per contra, the Learned Addl. Advocate General submitted that there is absolutely no conflict or repugnancy between the Central Act and the State Act in question. The KMC Act including Secs. 628 and 629 thereof relates to a subject in List II of the 7th Schedule which is exclusively within the legislative domain of the State. He submitted that there is no encroachment by the KMC Act or any provision thereof on the Central legislative field and hence it is not necessary to resort to the doctrine of pith and substance to uphold the vires of Secs. 628 and 629 of the KMC Act.

(44) We have given our anxious thought to the submissions made on behalf of the parties. The Works of Defence Act, 1903 is a Central Act and no doubt continues to be in force by virtue of Art. 372 of the Constitution. The subject matter of the said Act can be traced to Arts. 1, 2 or 4 of List I of the 7th Schedule. The said Articles read as follows:-

'Art. 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilisation.

2. Naval, Military and Air Forces; any other Armed Forces of the Union.

4. Naval, Military and Air Forces works.'

Mr. Gupta also relied on Art. 3 of List I. However, in our view, the same is not germane to our context since that Article relates to Cantonment areas. Admittedly, the area where the property in question is situated, is not a cantonment area and is within the KMC area. The 1903 Act was enacted to provide for imposing restrictions upon the use and enjoyment of land in the vicinity of Works of Defence in order that such land may be kept free from buildings and other obstructions and for determining the amount of compensation to be paid on account of such imposition. The said legislation has been brought into existence in the interest of national safety and security. Sec. 3 of the Act empowers the Central Government to put restrictions upon the use and enjoyment of land in the proximity of Works of Defence or of any site intended to be used or to be acquired for such work. The procedure that the Central Government must follow is prescribed in sub-Sections 1 and 2 of Sec. 3 of the 1903 Act.

(45) The KMC Act no doubt relates to a subject matter covered by Art. 5 of List II of the 7th Schedule which reads as ‘local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.’ The question is, whether Secs. 628 and 629 of the KMC Act relate to a subject enumerated in the State List. We are of the opinion that it does. Art. 1 under the State List reads as ‘Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil powers)’. In our view, providing for restrictions and conditions on construction of buildings, comes within the purview of the term ‘Public Order’. In the cases of Jijubhai Nanbhai Kachar (supra) and India Cement Ltd (supra), the Apex Court observed that the language of the entries in the three Lists under Schedule 7 to the Constitution should be given the widest possible meaning. Each general word should extend to all ancillary or subsidiary matters which can reasonably be comprehended in it. The words should be construed so that they will be beneficial to the amplitude of legislative powers. Keeping those principles in mind we are of the view that the subject matter of Secs. 628 and 629 of the KMC Act can be fairly and reasonably comprehended within the expression ‘Public Order’ which is entry 1 in the State List.

(46) The State Legislature in its wisdom thought it expedient to enact Secs. 628 and 629 of the KMC Act in the interest of preservation and maintenance of the public order in the Hastings area which is included in Kolkata and this is possibly because the part of the Hastings area which is in Kolkata is located in close proximity to the ‘Fort William’. Hence, the State Legislature made it obligatory for the KMC to obtain sanction of the Central Government prior to granting permission to construct a building in the area of Hastings which is included in Kolkata. Further, Sec. 628 of the KMC Act makes it clear that one may not even apply for sanction of the Central Government unless the building plan and the site plan are approved by the Commissioner of Police. It is nobody’s case that the State Legislature lacked legislative competence to enact Secs. 628 and 629 of the KMC Act.

(47) The question is whether Secs. 628 and 629 of the KMC Act encroaches upon a field occupied by the 1903 Act and/or whether there is any repugnancy between the provisions of the 1903 Act and Secs. 628 and 629 of the KMC Act? In our opinion, the answer must be in the negative. The provisions of 1903 Act relate to the subject matters mentioned in Arts. 1, 2 and 4 of List I. Secs. 628 and 629 of the KMC Act relate to Art. 1 of List II. The Parliament and the State Legislature were fully competent to enact the 1903 Act and the KMC Act respectively. Even assuming there is incidental encroachment by the State Legislature on the Union subject while enacting Secs. 628 and 629 of the KMC Act, in our view, there is no repugnancy between the provisions of Secs. 628 and 629 on the one hand and the provisions of the 1903 Act on the other hand. Art. 254 of the Constitution comes into play only when there is repugnancy or inconsistency between a law made by the State Legislature and a law made by the Parliament and to the extent of such repugnancy the State law shall be void.

The word repugnancy has been defined by the Pocket Oxford Dictionary of current English (1969) as ‘aversion, disinclination, (to, against); inconsistency or incompatibility of ideas, statements tempers’.

The Black’s Law Dictionary (9th Ed.) defines the word repugnant as ‘inconsistent or irreconcilable with; contrary or contradictory to’. The Wharton’s Law Lexicon (16th Ed.) defines repugnant as ‘inconsistent with and when they cannot stand together at the same time and one law is inconsistent with another law when the command or power or provision in the one law conflicted directly with the command or power or provision in the other; that which is contrary to what is stated before’.

In Biswas on Encyclopaedic Law Dictionary (2nd Ed.) the doctrine of repugnancy is explained as follows:-

‘Repugnancy between two pieces of legislation means that conflicting results are produced when both the laws are applied to the same facts. There is a case of repugnancy when one statute says ‘do’ while the other says ‘don’t’ in regard to the same set of facts. Art. 254 of the Constitution of India provides for a solution. The marginal note of the Art. uses the expression ‘inconsistency’, while the body of the Art. uses the expression ‘repugnancy’. Hence, two expressions are identical. ‘Inconsistency’ connotes the idea of incompatibility. The etymological things are inconsistent when they cannot stand together at the same time and one law is inconsistent with another law’.

(48) From the above, it is clear that repugnancy between two pieces of legislation means that conflicting results are produced when both the laws are applied to the same set of facts. Repugnancy arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and that it is impossible to obey one without disobeying the other.

(49) In the instant case, there is no repugnancy between the provisions of the 1903 Act and Secs. 628 and 629 of the KMC Act. In fact, the provisions of Secs. 628 and 629 of the KMC Act are complementary to and in furtherance of the objects of the provisions of the 1903 Act. Sec. 3 of the 1903 Act confers power on the Central Government to regulate the user of land in the vicinity of the Works of Defence by making a declaration and issuing a notification in the manner pr

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escribed. This power is in no way affected or curtailed by the provisions of Secs. 628 and 629 of the KMC Act which on the other hand recognise the power of the Central Government to impose restrictions on construction of buildings in the part of the Hastings which is in Kolkata and thus reinforces the object of the 1903 Act. (50) We also note the observation in the case of Hindustan Lever-vs.- State of Maharashtra (supra), wherein the Supreme Court held that the concept of occupied field is relevant in the case of laws made with reference to entries in List III. The doctrine of covered field has to be applied only to the entries in the Concurrent List (Emphasis is ours). Such observation of the Supreme Court was in reiteration of this proposition of law laid down in a number of earlier decisions of the Apex Court referred to at paragraph 35 of the judgment in the case of Hindustan Lever (supra). In the instant case, the two concerned legislations are under the Central List and the State List respectively and the Concurrent List does not come into picture. Hence the concept of covered field or occupied field is not germane in the facts of this case. (51) It is also settled law that there is a presumption of constitutionality of a statute enacted by the Parliament or the State Legislature. The Legislating Authority is supposed to know the law and the need to meet for which a particular piece of legislation is enacted. The presumption of a statute being intra vires the Constitution of India is not easily rebuttable. The burden of displacing such presumption is a heavy one and the onus lies on the person who challenges the vires of the statute. In our view, in the present case, the writ petitioners have not been able to discharge such onus. The only ground on which the vires of Secs. 628 and 629 of the KMC Act has been challenged is that the same encroaches on a subject matter covered by the Works of Defence Act, 1903 and the said provisions of the KMC Act are repugnant to the provisions of the 1903 Act. However, as we have held there is no such encroachment and even assuming there is an incidental encroachment, there is no repugnancy between the said provisions of the two statutes. It may also be noted that in the case of K.T.P Plantation Pvt. Ltd.-vs.-State of Karnataka (supra), the Supreme Court held that the plea of two legislations being repugnant to each other can be urged only if both the enactments fall under the Concurrent List, which is not the case here. (52) The Learned Judge has held that on a holistic reading of Secs. 628 and 629 of the KMC Act it is clear that the State Legislature has not transgressed into the exclusive area covered by the Union List or that by legislating Secs. 628 and 629 the State Legislature in no way journeyed into a foreign field. The learned Judge held that these two sections do not legislate but merely require a p ermission of some authority who has the prerogative to legislate on certain matters. These two sections recognize the law made by the Central Government as supreme. We cannot find fault with the decision of the learned Judge. (53) For the reasons aforesaid, the first issue is decided against the writ petitioners. We hold that Secs. 628 and 629 of the KMC Act are perfectly valid legislations which are not in conflict with or in violation of any of the constitutional mandates. (54) Now, we come to the second question i.e. whether in the absence of a notification under Sec. 3 of the Works of Defence Act, 1903, Secs. 628 and 629 of the KMC Act would come into operation. (55) In our considered view, the operation of Secs. 628 and 629 of the KMC Act does not depend on the existence of a notification under Sec. 3 of the 1903 Act. Since in our view, the said sections of the KMC Act are valid legislations, they would operate in their field independently whether or not a notification has being issued under Secs. 3 of the 1903 Act. (56) It was sought to be urged on behalf of the appellants that it is the Central Government alone which has the power and authority to impose restrictions upon the use and enjoyment of land in the vicinity of any works of defence and such restriction can be imposed only in the manner and following the procedure prescribed in sub-Secs. (1) and (2) of Sec. 3 of the 1903 Act. It was urged that in the absence of a Sketch Plan of the land where restriction is proposed to be imposed, it is not possible to say whether or not the property in question is situated in a part of Hastings which falls within Kolkata and hence, Secs. 628 and 629 of the KMC Act cannot have any operation in respect of the property in question. We are unable to agree with the above contention. Learned Addl. Advocate General has drawn our attention to the Smarts Map of Kolkata and other documents which we have noted above from which it is clear that the property in question is situated in that part of Hastings which is included in Kolkata. Moreover, there does not appear to be any confusion in the mind of anybody concerned that the property in question is in a part of Hastings which in included in Kolkata and definitely the writ petitioners did not have any doubt regarding the same as otherwise they would not have applied to the KMC for sanction of the building plan. The very fact that they approached the KMC for building permit amply demonstrates that they had no confusion in their mind that the plot in question is situate in a part of Hastings which is included in Kolkata. (57) Once it is held that Secs. 628 and 629 of the KMC Act are valid legislations and they applied to the property in question, it must be held as a logical corollary and consequence that the building plan sanctioned by the KMC in favour of the writ petitioners without prior permission of the Central Government is bad in law. It is an age old principle laid down in innumerable cases starting from Nazir Ahmad’s case (supra) that when a statute confers power on an authority to do something in a certain manner, the thing must be done only in that manner or not at all. Strict adherence to the procedure prescribed by the statute is a sine qua non for according validity or legality to the act of the authority. A permission granted by an authority to a citizen without complying with the necessary procedural requirements is nonest in the eye of law. The citizen who is the beneficiary of such illegal permission cannot legitimately contend that since on the basis of the permission he has spent huge sums of money or has otherwise changed his position to his detriment, the permission cannot be cancelled. It is trite law that there is no estoppel against statute. In any event, it is not a question of cancellation of permission to build, since in the eye of law there was never any such permission. The permission is void ab initio. Hence, the consequences must follow including actions under Secs. 628 and 629 of the KMC Act. (58) We are conscious that the view that we have taken will cause hardship to the writ petitioners/appellants. However, it cannot be gainsaid that private interest must give way to public interest. If there is a conflict, public interest must prevail. In our view, it is in the interest of the public at large that Secs. 628 and 629 of the KMC Act are allowed to operate with full effect. Protecting the safety and security of the country and all parts thereof and preserving ‘Public Order’ is of paramount importance and the same cannot be comprised at any cost. (59) In view of the aforesaid, the appeal stands dismissed. There will, however, be no order as to costs. (60) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I Agree.
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