Kohinoor Builders vs Government of A.P. and Another

Sivaraman Nair, J.—This Writ Appeal is filed from the Judgment in Writ Petition No. 4564/1985 and Review W.P.M.P.2621 /86. The Writ Petition was dismissed as infructuous by judgment dt.28-1-1986. Appellant filed a Review application, which was dismissed on 26-3-1986.

Appellant claims that the firm which he represents had 8,000 square yards of land in between Ravindra Bharathi on the one side and Reserve Bank of India building on the other. The firm had applied for permission to construct two residential blocks and one office block in the above area. The residential blocks were to consist of 1+12 and 1+13 storeys each whereas the office block was to consist of ground and two upper floors. The Municipal Corporation of Hyderabad granted permission for construction of 1+11 and 1+12 floors in the two residential blocks and 1+1 floors in the office block. That permission was granted on 15-5-1981. It appears that there was some objection relating to the construction of the above building, in an area which was ear-marked for public and some public purposes. In the session of Legislature on 3-8-82 while answering a question by one of the local M.L. As., the Minister concerned stated that the permission to construct the building was granted by the Municipal Corporation, after due verification of title. It was also asserted that there was no violation of building rules in the grant of such permission. Appellant asserts that that reply was signed on behalf of the Government by Sri G. Venkata ramana Reddy, who was then the Secretary in the Department of Municipal Administration.

Apparently on the basis of the complaint, the Government examined the question of grant of permission for construction of the building and on some deliberation, which is evident from the files which the Government Pleader had produced, the Government issued an order on 26-8-82 pointing out a number of irregularities in the grant of permission to construct the building and required the Municipal Corporation of Hyderabad, to take necessary action. The Corporation issued a notice to the builder (appellant) on 4-9-82 to show cause as to why the permission should not be recalled for the alleged violations. The appellant/builder submitted the explanation on 13-9-82 maintaining that the Municipal Corporation was right in granting permission in strict compliance with the requirements of the statute, the rules and the Urban Development plans. On 25-9-1982, the Municipal Corporation issued an order requiring the builder to stop the construction. Promptly, appellant filed W.P.No. 7266/82 and obtained an interim order on 12-10-1982 against the proceedings issued by the Corporation u/s 450 of the Municipal Corporation Act. By virtue of those interim orders, appellant continued and completed the construction by January, 1984. We are informed by counsel for the appellant that the above Writ Petition was dismissed in 1986 as infructuous, because the construction, as we have mentioned above, had been completed by January, 1984. Appellant asserts that the residential block consisted of 92 flats and most of them had been sold out almost simultaneously with the completion of the construction, whereas it is asserted by the respondents that the sale of the flats were much prior to the issue of the completion certificate which was obligatory for any such sale and was therefore irregular and illegal. We are however not concerned with that controversy in this Writ Petition.

Later, the State Government issued G.O.Ms.No. 217 Municipal Administration dt.1-5-1985 appointing the 2nd respondent to conduct an enquiry into the construction of the building. Appellant filed W.P.4564/85 on 6-5-85. In W.P.M.P. 6418/85, appellant obtained interim order on 8-5-85 staying all further proceedings pursuant to the above order. One of the main grounds urged in the Writ Petition was that the 2nd respondent Sri G.V. Ramana Reddy who had signed the reply which was placed on the table of the house of the Legislature on 3-8-82 had also signed the order dt.26-8-1982 finding fault with the construction, being a person who was biased, should not conduct the enquiry into allegations of impropriety in the construction of the building. The other point urged was that the Government had no jurisdiction to initiate proceedings and direct an enquiry into the construction of the building, because such an order was beyond the powers of the Government u/s 679 of the Municipal Corporation Act.

The Government filed a counter affidavit on 26-7-85 stating that on receiving notice, the Government had consulted the Advocate General who advised them that it would not be proper to continue the enquiry with the 2nd respondent as the enquiry officer. The Government therefore changed the enquiry officer and appointed one Sri P.V. Choudary, in G.O.Ms. No. 338 Municipal Administration dt. 16-7-85. He completed the enquiry. It is admitted that he had submitted his report pursuant to such enquiry which he conducted.

When W.P.4564/85 came up for hearing on 28-1-1986, the learned single Judge had no occasion to consider the objections in detail. He found that notwithstanding the interim order of stay issued by this court on 8-5-85 in W.P.M.P.6418/85, the Government had changed the enquiry officer by issue of G.O.Ms.No. 338 Municipal Administrationdt.16-7-85. The learned single Judge also noted that the enquiry officer had completed his proceedings and submitted his report to the Government during the pendency of the Writ Petition. He however found that the State Government was not right in proceeding with the appointment of a substitute in the place of the 2nd respondent as enquiry officer and that the enquiry should not have been continued or completed in defiance of orders of this court. He however dismissed the Writ Petition as infructuous for the reason that the allegation of bias was no longer available, since an unbiassed person was appointed as the enquiry officer. The court held that all proceedings which were taken after 8-5-85 in the matter being in defiance of orders of this court, the 1st respondent was liable to contempt. Proceedings in contempt were initiated suomotu against the State Government. It is admitted that the concerned Secretary filed an affidavit in those proceedings explaining the circumstances under which the 2nd respondent was substituted by another individual and how he had completed the proceedings during the pendency of the Writ Petition before this Court. The Secretary expressed unconditional apology for what had transpired. There is no dispute that those proceedings were terminated accepting the apology tendered by the concerned Government Secretary in his affidavit in this court.

On 7-11-1985 the Municipal Corporation of Hyderabad issued a show cause notice to the appellant who submitted its explanation on 29-11-1985. Those proceedings also could not continue by reason of the interim order issued by this court on 8-5-85. Counsel submitted that the appellant had also filed an original suit against the Corporation and obtained an injunction restraining further proceedings in the matter. It is submitted that those proceedings have also been terminated.

Against the judgment dt. 26-3-86, appellant filed a review petition seeking adjudication on two points which it had urged in the Writ Petition. After a detailed hearing, the learned single Judge dismissed that application by order dt.26-3-86.

Counsel for the appellant submitted before us that the learned single Judge went wrong in assuming that the Writ Petition had become infructuous, because the point of jurisdiction as to whether the Government could have exercised power u/s 679 of the Municipal Corporation Act to institute an enquiry into the construction of a building had to be decided. He submitted further that the learned single Judge was wrong in assuming that even though the enquiry was continued in defiance of the orders of this Court, the evidence gathered thereby could be made use of in proceedings against the appellant. Counsel submitted further that these two points required adjudication by this court, and since the learned single Judge had not touched upon those aspects by reason of the disposal of the Writ Petition as infructuous, this court may consider those aspects on the point of jurisdiction.

We heard counsel at considerable length. The main submission urged by counsel for the appellant is that Section 679 of the Hyderabad Municipal Corporation Act enables the State Government only to exercise the power of revision so as to consider the correctness, legality, propriety or regularity "of any proceeding or order passed by the Commissioner or any officer subordinate to him", and in aid of that power to "call for and examine the record and pass such orders with reference thereto as he thinks fit". He submits that the terms of the above section indicate sufficiently that the power of the State Government to revise is confined only to "any proceeding or order" and cannot refer to the propriety of the construction of a building. He submits that the reply given by the Minister for Municipal Administration on 3-8-82 in the Legislature (which has been produced as one of the material papers) sufficiently indicates that there was no violation of any of the provisions of the Municipal Corporation Act or the building Bye-laws in the grant of permission to the appellant/builder on 15-5-81. He submits that if there was no question of ascertaining the correctness, legality, propriety or regularity of any proceeding or order of the Commissioner or any officer subordinate to him, it was not open to the Government to pass an order in the nature of G.O.Ms.No. 217 Municipal Administration dt.1-5-85 causing an inquiry to be conducted into the construction of the building or substituting the same by G.O.Ms.No. 338, Municipal Administration dt.16-7-85. According to him, the power of revision conferred in Government u/s 679 is confined only to cases where any proceeding has been issued or any order has been passed and the Government felt it necessary to examine the correctness, legality, propriety or regularity of such proceeding or order. He submits that construction of a building pursuant to an order passed competently by the Municipal Commissioner or any officer subordinate to him is not within the ken of the above provision. He submits therefore that whatever has been done by the State Government allegedly in exercise of its power u/s 679 of the Municipal Corporation Act is null and void, and any material which is the outcome of such invalid proceeding cannot be made use of against the appellant, as has been wrongly found by the learned single Judge.

Counsel appearing for the respondent submits that Section 679 is only one of the provisions contained in Chapter XXI, which deals with control vested in the Government of Municipal Administration. He invited our attention to the provisions of Section 675 dealing with Government''s power to call for records, Section 676 - Government''s power to cause inspection to be made, Section 677 - enabling the Government to require the performance of duties, Section 678 dealing with the Government''s power to appoint a person to take action in default, Section 679 - the power of revision and the provisions of Section 679-A to 679-D which according to him are consequential provisions which the Government is competent to initiate on the basis of exercise of its revisional power u/s 679 of the Act.

The question which we are concerned with is as to whether the appellant is right in the submission that Section 679 of the Municipal Corporation Act did not authorise, or empower the State Government to exercise the power of revision except in cases where any proceeding or order was passed by the Commissioner or any of his subordinates and it was felt necessary to ascertain whether that proceeding which was issued or that order which was passed was correct, or legal or proper or regular.

What we find on a reading of Section 679 is that the power of revision is granted to the Government in wide terms and without any restriction. As pointed by counsel for the respondent, the power of the Government in Section 679 is a part of Chapter XXI which deals with Control of the Government over municipal administration. On a reading of other provisions viz., Sections 675 to 678 and 679-A to 679-D we are of the opinion that what is granted to the Government u/s 679 is a power in unrestricted terms. It is not stated that such power shall be exercised only in respect of proceedings issued or order if any, passed by the Commissioner or any officer subordinate to him. The word ''proceeding'' used in Section 679 of the Act sufficiently indicates that the State Government is entitled to revise even such matters as have not reached any finality, in addition to orders which have already been passed by the Commissioner. Even if no order is passed or no proceedings is issued, the Government has got the power to call for the records in revision and examine its correctness, propriety, legality or regularity. It also comprehends revision of actions which have already been taken under colour of authority of the Municipal Corporation or Commissioner or any subordinate officer. It is too much to insist that even if the Government finds irregularity or impropriety or illegality in any action of the officers, it shall either wait till such actions terminate in illegal or improper orders or that it shall shut its eyes to whatever has transpired after the order of proceedings is issued. That will be too restrictive a meaning to be given to Section 679 of the Act. It will also be self-defeating.

When a power is granted in general terms, that power shall be effectuated to its fullest extent. It shall not be the anxiety of courts to cut down or restrict the power by interpretative exercises except when it transgresses constitutional or other rights of citizens. It is for the Legislature, subject to the above limitation, to decide whether the power shall be granted in wide or in restricted terms. The policy of the legislature in granting the power in wide terms cannot ordinarily be nullified by courts except in very exceptional cases. On a reading of the provisions contained in Chapter XXI of the Hyderabad Municipal Corporation Act, we are satisfied that wide powers have been designedly and advisedly granted to the State Government. We are not persuaded to hold that there is any express restriction nor are we persuaded to hold that restrictions shall be read into that provision as is urged by counsel for the appellant. It is not the function of courts to scuttle legislative policy by interpretation, if the language used by the legislature is sufficiently indicative of the amplitude of the power.

We have compared this provision with provisions in similar statutes where power of revision is conferred on the Government or other revisional authority. In all such cases where restrictions were meant, such restrictions were expressly included in the statutory provisions. u/s 90 of the Motor Vehicles Act, which deals with the power of revision of the State Transport Appellate Tribunal to call for the record of any case, the restrictions are specifically spelt out by addin - "in which an order has been made by a State Transport Authority or Regional transport authority and against which no appeal lies". These two conditions which are specifically mentioned restrict the power of revision to such cases where the State Transport Authority or the Regional Transport Authority had passed "orders and such orders are those from which no appeal lies. The restriction is that the power of revision is not available in cases where no orders have been passed or such orders as have been passed are appealable. Section 397 of the Code of Criminal Procedure, provides that-

"the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he released on bail or on his own bond pending the examination of the record."

It is clear from the above provision that what has been granted is a wide and general power. It is not confined to the examination, of the correctness, or legality, or propriety of any finding, sentence or order recorded or passed. It also comprehends a review of any proceeding of any inferior court. ''Proceeding'' in that provision as in Section 679 of the Municipal Corporations Act means only ''prescribed method or course of action''. It cannot be confined to orders only. Nor can the power of the Government be confined to any stage prior to the passing of an order. It may comprehend stages subsequent thereto as well.

On a comparison of the above provisions, we find that Section 679 of the Municipal Corporations Act is almost in similar terms to Section 397 of the Code of Criminal Procedure and is entirely different from the provisions contained in Section 90 of the Motor Vehicles Act. For this reason also, we are of the opinion that the power granted to the Government u/s 679 being wide, it has to be given effect to in its full amplitude.

Counsel for the appellant invited our attention to Allampati Ramanaiah v. The Revenue Divisional Officer, Nellore 1988 (2) ALT 437, in support of his submission that only authorities on whom suo motu power to call for records of subordinates could exercise that power. The question which fell for consideration in that decision was as to whether an authority which was constituted as an appellate authority under the A.P. (A.A.) Inams (Abolition and Conversion into Ryotwari) Act, 1956 had any power of suo motu revision. The court held that the power of suo motu revision has to be specifically conferred by the statute, and an authority which was constituted only as an appellate authority to decide appeals which were filed before it invoking its appellate jurisdiction could not exercise the power of suo motu revision. We are afraid that the above decision is far off the point which we have to decide in this appeal. It cannot be assumed, nor was it argued before us, that Section 679 does not specifically confer suo motu power of revision on the State Government. The only dispute is as to the amplitude of that power and the circumstances under which the power may be exercised. We have found that the State Government was fully within its right in issuing the impugned orders.

Counsel for the appellant invited our attention to Mulraj Vs. Murti Raghonathji Maharaj, in support of the second point. It was a case where the execution court continued the proceedings in defiance of the orders of stay issued by a superior court. The Supreme Court held that such proceedings which were continued after knowledge of the order of stay of the superior court were null and void and could not be used for any purpose at all. Mohd. Burhanuddin Vs. Savitri Bai, followed the above decision in almost similar circumstances.

We need not consider this point at any length because the learned singel Judge, in the judgment dt.28-1-1986 and again in the order dismissing the review petition on 26-3-1986 proceeded on the basis that the State Government acted illegally in substituting Sri P.B. Choudary by G.O.Ms. No. 338 dt.16-7-1985 in the place of the 2nd respondent who was appointed as the enquiry officer in G.O.Ms. No. 217 dt. 1-5-1985. The learned single Judge also held that whatever transpired subsequent thereto in defiance of orders of this court were to be considered as inconsequential. However, he held that whatever be the manner in which the evidence was collected, such evidence may be relevant material in other competent proceedings, he referred to the judgment of the Supreme Court in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, with specific reference to the provisions of Code of Criminal Procedure relating to search and seizure. The court held that even though the search was illegal, the material collected pursuant thereto could be made use of in competent proceedings. Reference was also made to the decision of the Calcutta High Court in Dwarka Prosad Agarwalla Vs. Director of Inspection, to almost the same effect. The learned single Judge therefore held that the report of the second enquiry officer Sri P.B. Choudary being relevant, the materials collected by him and contained in his report would not be excluded for the only reason that he had conducted the enquiry not with stanidng the interim order issued by this court on 8-5-85. We do not find any reason why we should interfere with the above finding of the learned single Judge. We are of the opinion that even if the source of the evidence or the manner in which it was gathered was tainted, if it was relevant material, there is no absolute rule excluding such evidence for all purposes. Exclusion may be advisable depending on the facts and circumstances in some cases, but no universal rule of such exclusion is indicated.

We must also take note of the fact that the issue of the orders impugned in this Writ Petition did not in any manner affect any of the rights of the appellant. If the enquiry revealed any material adverse to the appellant, either the Municipal Corporation or the State Government may be competent to take action against him. It is at that stage that he may be aggrieved and not earlier. According to us, the appellant was not entitled to invoke the extraordinary jurisdiction of this court in anticipation of any administrative action appointing an officer to conduct an enquiry into a matter of public importance. Those orders did not in any manner affect any right of the petitioner. Invocation of the jurisdiction in those circumstances amounted to an abuse of the process of this court. Unfortunately, the petitioner was able to stall the proceedings for a period of a decade pursuant to the interim orders of this court and complete, in the meantime, construction of the building, notwithstanding orders issued by the Municipal Authorities. The Corporation had issued a notice to him on 4-9-82 and had passed an order on 25-9-82 in exercise of the power of the Corporation u/s 450 of the Municipal Corporation Act. That order requiring the appellant to stop construction was assailed in this court. Appellant obtained an interim order, continued and completed the construction and ultimately represented that the Writ Petition had become infructuous in 1986, because the construction had been completed in 1984 and most of the flats had been sold away by that time. When enquiry was ordered by order dt.1-5-85, appellant came back to this court, obtained an interim order on 8-5-85 and tried to stall the entire proceedings thereafter. In the meantime, he had filed a suit, obtained an injunction against the Corporation proceeding in accordance with the provisions of the Municipal Corporation Act for alleged violations. In other words, he had stultified the proceedings successfully for a period of over a decade by a rank abuse of processes of this Court.

Yet another aspect which we have to consider is the effect of the orders impugned in this Writ Petition. The objection of the appellant is about an enquiry into the construction of the building to ascertain whether it violated any of the relevant provisions of Municipal Corporation Act or the relevant Bye-laws or Regulations or the construction proceeded in contravention of the terms of the permission granted to it. If the appellant had nothing to hide, there is absolutely no reason why for the last one decade or more, he had been trying to stultify the proceedings and scuttle the process of law by approach to courts repeatedly, obtaining interim orders and then proceeding with the construction so as to report later that those proceedings had become infructuous. This conduct of the appellant disentitles him from any discretionary relief in exercise of the extraordinary jurisdiction of this court under Article 226 of the Constitution of India.

We are in agreement with the learned single Judge that in relation to matters which are relevant, any material which has been collected irrespective of the source or whether it is tainted or not, may be made use of by the State Government or the Corporation as the case may be to institute proceedings which are sanctioned by law. The only limitation will be the obligation to comply with the principles of natural justice. The only fact that the appellant could successfully complete the construction under cover of interim orders of this court shall not be a reason to condone irregularities in the construction. Law shall take its course irrespective of the impact of the same on the individual fortunes of the adventurers. That shall be more so in cases where they stalled, stifled and scuttled competent proceedings by abuse of processes of this Court.

For all these reasons, we do not find any justification to interfere with the judgment under appeal or the order dismissing the review petition. We therefore dismiss the appeal. The only manner in which we can indicate our disapprobation of the conduct of the appellant is by requiring it to pay costs along with Advocate''s fee of Rs. 1,000/-.