On 17 November 2022, the Hon'ble High Court at Calcutta ("HC"), in its decision in Falguni Mukherjee (Appellant) v. State of West Bengal and Ors. (Respondents), MAT 1022 OF 2022 and IA CAN 1 of 20221 deliberated on the judicial intent behind Section 23 of the West Bengal Panchayat Act, 1973 ("the Act") and whether it envisages a provision for grant of post-facto sanction of a building plan submitted to the permission granting authority after completing construction of the building?
Brief Background
The Appellant, Falguni Mukherjee, a resident of Medinipur Gram Panchayat, Bankura, West Bengal, constructed buildings without sanction plan from the concerned authority. The buildings so constructed stand on an undivided plot in excess of her share and also without having the land covered into bastu. Subsequently, the Appellant applied for a post-facto sanction before the Pradhan, Medinipur Gram Panchayat, which was then rejected by the said Pradhan.
The matter was then sent before the Sub Divisional Officer ("SDO"), Bankura for taking appropriate action on the matter. The SDO provided the Appellant with an opportunity to be heard but she failed to appear on two occasions citing medical grounds. The SDO, after considering the materials before him, issued an order to demolish the structures constructed by the Appellant.
Thereafter, the Appellant filed a writ petition being No 5513 of 2022 before a learned Single Judge of the HC praying for issuance of a mandamus to direct the Pradhan, Medinipur Gram Panchayat to set aside the rejection order issued by the said Pradhan against the post-facto application for sanction made by the Appellant and also to compel the SDO to cancel his order of demolishment. Prayer was also made for issuance of a mandamus commanding the Pradhan to grant the post-facto approval.
The learned Single Judge disposed of the writ petition by holding that there is no reason to interfere with the demolition order passed by the SDO and hence the Appellant preferred an appeal before a Division Bench of the HC.
Decision and Analysis
The central question posed before the HC in this case was whether the Appellant was entitled under law to post facto sanction after completion of construction under the Act for which the HC delved into the scope of Sections 23(1) and (6) of the Act.
The concerned provisions are stated below for ease of reference:
Section 23(1) – "No person shall erect any new structure or new building or make any addition to any structure or building having plinth area of not more than 150 square meters and height not more than 6.5 meters in any area within the jurisdiction of a gram panchayat except with the previous permission in writing from the gram panchayat."
Section 23(6) - "Where any new structure or new building or any addition to any structure or building is being or has been erected or made, as the case may be, in contravention of the provisions of Sub-section (1), the authority may, after giving the owner of such building an opportunity of being heard, make an order directing the demolition of the building by the owner within such period as may be specified in the order and in default the authority may itself effect the demolition and recover the cost thereof from the owner as a public demand."
The HC observed that in absence of any ambiguity in the letters of the statute, the literal meaning of the words used therein is required to be taken into account. To that effect, the HC relied on the Supreme Court judgment in Gurudevdatta v. State of Maharashtra2 wherein it was held that the golden rule of interpretation is that the words of a statute must prima facie be given their ordinary meaning and when the words of a statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences.
The HC also observed that its jurisdiction to interpret a statute can only be invoked when the language of the statute is ambiguous in nature. The court cannot rewrite the law and in the same process undermine the scope of the legislation. It further observed that wherein negative words are used in a statute, the courts will presume that the intention of the legislature was that the provisions are mandatory in nature and the same cannot be done away with at the whims and fancies of the public at large.
The HC, while considering the scope of Section 23 (1) of the Act, observed that the provision does not only contain the word 'permission' but is qualified by the word 'previous' therefore, the legislature by adding 'previous' with the word 'permission' has clearly conveyed that requirement of 'prior permission' or 'previous permission' is essential in respect of any proposed construction within the area of a Gram Panchayat. The court deduced that had the provision contained the word 'permission', instead of 'previous permission', there would have been a scope for interpretation but in the present scenario, there was no scope for the court to interpret that previous permission also includes subsequent permission or that the competent authority can grant ex post-facto sanction after the construction was already over. To that effect, the HC held that by inserting the word 'previous permission' in Section 23(1) of the Act, the legislature has unambiguously specified the mandate of obtaining 'previous permission' in writing from Gram Panchayat for any such proposed construction.
In this context, the position taken by the Apex Court in Life Insurance Corporation of India v. Escorts Limited3 was also discussed wherein the court deduced that the "Parliament made a distinction between permission simpliciter and previous permission from the use of the qualifying word in some provisions while its non-use in some other provisions of the Act. The significance of such use and non-use of the qualifying word should not be disregarded. This shows that the Parliament deliberately avoided the qualifying word previous in Section 29(1)".
The HC considered the submission of the counsel for the Appellant that since Section 23(6) gives the power to hear the applicant who has violated conditions of section 23(1) of the Act it can condone the violation. The counsel suggested that the intention of the legislature, hidden in the said provision, is to enable the authority to grant ex post facto sanction in suitable cases, particularly if it is found that the construction was raised as per parameters of the construction rules.
Responding to such contention of the counsel the HC observed that scope of interpretation of the provisions would arise only when there is an apparent ambiguity or conflict between the provisions or letters of a statute, but in the present case there was no such requirement to depart from the plain meaning rule. It was reiterated that 23(1) began with a negative command which implied that it was to be mandatorily complied with by the persons concerned. The court recorded that there was no conflict between the two provisions of the same section. Section 23(1) mandates prior permission from the concerned Gram Panchayat for any construction and Section 23(6) provides for such scenarios when there is a violation of Section 23(1) and lays out the next steps to be taken by the competent authority in such cases.
The counsel for the Appellant had also referred to the decision of the Apex Court in Electrosteel Steels Limited v. Union of India4 where the court invoking the principle of proportionality and relying on the views taken in Lafarge Union Mining Private Limited v. Union of India5 had taken a rather balanced approach. The court had imposed hefty fines on the industries, holding them accountable for the environmental degradation and for noncompliance with the law. But the Apex Court reversed the order of closure of the industries and directed the government to consider the application for post facto clearance considering the consequences of closure of an integrated steel plant with a work force of 300 regular and 700 contractual workers. But in the instant case, no such greater public good seemed to be achieved by allowing the post-facto sanction as the appellant was only interested in her own individual construction rather than the larger interest of the society. However, the HC noted that the above case law was not applicable to the facts of the present case since the Appellant herein was largely concerned with her individual construction rather than the interest of the society.
Based on the foregoing, the HC dismissed the contention that the opportunity for being heard under Section 23(6) can be interpreted as a provision for grant of post-facto sanction in subsequent violation of Section 23(1) and clarified that Section 23 does not envisage grant of post-facto sanction of a building plan after construction of the building is completed.
The HC further held that misusing the canons of construction must be diminished to the greatest extent possible and thus, literal interpretation of the said Section 23(1) will discourage people from taking law into their own hands. Accordingly, a building constructed in violation of the said provision must be held to be illegal and unauthorized and incapable of being regularized. The HC strongly upheld that flouting of the law with impunity deserves no sympathy and that unauthorized construction has become a major problem in the society which has to be tackled with iron hands.
This decision of the Hon'ble High Court has its impeccable strength in as much as it has given prime consideration to the interpretation of the statutory provision in itself. The stringent interpretation opted for by the HC can be heeded as a warning for promoters who often take a rather cavalier approach in regard to obtaining all sanctions and permissions before commencing of work. This judgment will act as a great reminder to promoters and help curb unauthorized construction which appears to be a great challenge to control in the recent times. However, the stance taken by the HC in the matter has not reached finality since there is a possibility of this judgment being challenged in appeal before the Apex Court.
Footnotes
1. 2022 SCC OnLine Cal 3612
2. (2001) 4 SCC 5347
3. (1986) 1 SCC 264
4. 2021 SCC OnLine SC 1247
5. (2011) 7 SCC 338
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