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Petitioner: A. W. MALLIK VS Respondent: THE AUTHORIZED OFFICER, DACCA IMPROVE MENT TRUST AND OTHERS
P L D 1970 Dacca 178
P L D 1970 Dacca 178
Before S. M. Murshed, C. J. and Abu Md. Abdulla, J
A. W. MALLIK‑Petitioner
Versus
THE AUTHORIZED OFFICER, DACCA IMPROVE MENT TRUST AND OTHERS‑Respondents
Writ Petitions Nos. 627 of 1966 and 210 of 1967, decided on 27th June 1967.
(a) East Bengal Building Construction Act (II of 1951), S. 3‑Functions of Authorised Officer, limited to examination of building plan purely from constructional point of view‑Sanction to erect cinema house having been accorded by Improvement Trust under S. 75, East Bengal Improvement Act (XIII of 1953), not open to consideration by Authorised Officer while considering building plan.
Under the East Bengal Building Construction Act, 1952 rules have been formulated and they are known as Rules under the Fast Bengal Building Construction Act, 1952. The Rules provide for an elaborate procedure with regard to submission of a proposed plan for construction together with a number of requirements which the applicant is called upon to fulfil. The said section 3 of the Building Construction Act, read along with the Rules and the scheme of the said Act itself, leaves no room for any doubt, whatsoever, that the function exercised by the Authorised Officer is only limited to a consideration as to whether the proposed construction fulfils the Rules of building construction. The said Authorised Officer is not permitted to take any other matter into consideration in awarding or refusing such sanction. The question as to whether the plan should be approved must be examined exclusively from the point of view of principles of construction. The Authorised Officer is not allowed to travel beyond the confines to which he is required to stay by the mandate of law. It is no concern of his whether a Cinema House should be erected. The desirabi lity of sanctioning a cinema house is the concern of the Board and not that of the Authorised Officer. He has to guide applicants and to examine the plan submitted to him purely from a constructional point of view.
Proximity of a mosque to the proposed construction is a matter which could and should have been considered by the Board of Trustees, and there is no reason to suppose that the said Board had not considered the matter. In any event, the Authorised Officer is not sitting as an appellate Court over the order of the said Board and is not empowered to go into the question at all. Lastly, with regard to the ground that the cinema house would constitute a nuisance to surrounding dwelling houses, this again is a matter which has to be consi dered by the Board and is outside the province of the Authorised Officer to decide.
Having regard to the limited nature of his function under the Building Construction Act, 1952, the Authorised Officer must confine himself solely to matters which are entrusted to him under the Act. He is required to examine the building plan from the point of view of construction and to investigate whether there are defects in the plan purely from a constructional point of view. He is not allowed to embark upon an investi gation as to the desirability of such a building from the point of view of public policy. Public policy is something which is completely outside the province of the Authorised Officer. It is' the demand of law that he must disabuse his mind from any such consideration.
(b) East Bengal Building Construction Act (II of 1952), S. 3 Construction plan‑Refusal to sanction‑Order on grounds partly valid and partly invalid in law‑Valid grounds not separable from invalid grounds‑Order, held, wholly bad in operation.
(c) East Bengal Building Construction Act (II of 1952), S. 3‑Statutory functions cast upon authority‑Can be exercised by that authority only‑No other authority, how highsoever, can interfere with or influence exercise of such statutory functions unless expressly authorised by law‑Such authority bound to repel and dispel attempt to influence its decision.
When a statutory duty is cast upon an authority, it is for that authority, and that authority alone, to discharge such duty and no other, authority, how highsoever, is permitted to interfere with or to influence, the exercise of the said statutory function. Conversely, it is the duty of the above‑mentioned statutory authority to repel and dispel any attempt to influence his decision, even when such an attempt proceeds from a superior authority.
It was argued that the Provincial Government, in exercise of its executive authority, can give directions to the Authorised Officer, who is an officer appointed by it and is now, on deputa tion to the Trustees for the improvement of Dacca. Held this is a pompous and pretentious claim which is not counte nanced by law. In the discharge of an exclusive statutory duty, even by an officer, serving directly under, the Provincial Government, the latter is not permitted to interfere with the exercise of such statutory duty, unless the law expressly autho rises such interference. In the absence of such authorisation, it is the paramount duty of the Provincial Government to refrain from any such interference and to ensure the independence of the Authorised Officer. The East Bengal Construction Act, 1952 makes the Provincial Government the Appellate Authority against refusal to approve a plan, but until such an appeal is filed, the former is not in seisin of the matter.
District Magistrate, Lahore v. Sayyed Fayyazuddin P L D 1965 S C 371 distinguished.
Commissioner of Police v. Gordhandas A I R 1952 S C 16 and Motilal v. Uttar Pradesh Government A I R 1951 All. 25'7 ref.
(d) East Bengal Building Construction Act (II of 1952), S. 15‑Authorised Officer rejecting construction plan under direction of Government‑Writ petition, in circumstance, held, competent, even without resorting to remedy available under S. 15.
Syed Ishtiaq Ahmad and Akram Hossain Amin for Petitioner.
T. H. Khan, Senior Government Pleader with K. Harunur Rashid for Respondents Nos. 1 and 2.
A. R. Chowdhury for Respondent No. 3.
A. S. M. Mofakher with H. H. Rasul for Respondent No. 4.
Anwarul Huq Chowdhury for Respondent No. 5 (in Petition No. 627 of 1966).
S. A. Latif for Added Respondent No. 6 (in Petition No. 627 of 1966).
Dates of hearing : 3rd May, 26th and 27th June 1967.
JUDGMENT
MURSHED, C. J.---‑These two applications have been heard together by us and this judgment will dispose them of.
The applications have had a somewhat chequered career. The petitioner owns a piece and parcel of land in an area which is governed by a Master Plan prepared under the Town Improve ment Act, 1953 (East Bengal Act IIII of 1953). With the object of erecting a cinema house on his land he had applied to relevant authorities and had succeeded in obtaining their approval and sanction in this behalf. He has obtained the approval of police authorities from the point of view, whether the proposed cinema house would cause any traffic inconvenience. He has also obtained the approval of the Film Development Corporation which has approved the erection of such a cinema house having applied its mind to the technical aspect of the question. The said Film Development Corporation is headed by the Secretary of the Commerce and Industries Department of the Government of East Pakistan. He (petitioner) has finally, as we will see below, obtained the approval of Board of Trustees for Improvement of Dacca, which has examined the proposal from an over‑all policy question. Thus, the only thing left to be done by petitioner in this connection, is to get an approval for a building plan from a purely constructional point of view. It is normally a simple matter and the Authorised Officer concerned is not permitted to torpedo the scheme on consideration of matters which . the law enjoins him to disregard.
The aforesaid Master Plan emanated from a governmental proposal in pursuance of which an elaborate report has been submitted and the said report had been published in the Dacca Gazette on November 15, 1958. With regard to the question of making provisions for cinema houses it was realised that it was not convenient to make an anticipated provision to be incorpo rated in the said plan and it was suggested as follows: "It will be necessary to define the uses that will normally be permitted in the various zones, such as residential, commercial and industrial. Buildings which give rise to special sitting problems, like patrolling stations, cinemas and hotels, will require very careful consideration before they are permitted in any used zone". The above recommendation is incorporated in paragraph 297 of the report.
In pursuance .of the recommendation of the planner of the said Master Plan, the Town Improvement Act, 1953, was enacted. It is an elaborate statute which has created a Board of Trustees for the improvement of the town of Dacca and has also created the office of a Chairman of the said Board of Trustees. Exhaus tive powers have been given to the said Board. The following provisions of the Town Improvement Act, 1953, may be noticed. They may be quoted as follows:
"71. Whenever the Provincial Government sanctions a plan of a proposed public street or open space it shall announce the fact by notification, and the publication of such notification shall be conclusive evidence that the plan has been duly made and sanctioned; and the proposed public street or open space to which such notification refers shall be deemed to be a projected public street or open space, and shall be so deemed until‑
(a) such street or open space has been declared, under section 66, to be a public street or open space, or .
(b) the said notification has been cancelled
Provided that such cancellation shall not affect the validity of any action taken by the Board in pursuance of the said notification."
Section 74 runs thus:
"74.‑(1) When the Provincial Government approves the. Master Plan submitted under section 73, it shall announce the fact by notification and the publication of such notification shall be conclusive evidence that the Master Plan has been duly made and approved, and thereafter it shall be unlawful for any person to use any land for any purpose other than that laid down in the Master Plan, unless he has been permitted to do so under section 75.
(2) The Board may, from time to time, with the approval of the Provincial Government and the Provincial Government may at any time, amend or alter any specific provision of the Master Plan. Any such amendment or alteration shall be published in the official Gazette.
(3) All future developments and construction, both public and private, shall be in conformity with the Master Plan or with the amendment thereof.
(4) The Master Plan, or an amendment thereof, shall neither before nor after it has been approved, be questioned in any legal proceedings whatsoever and shall become operative on the day it is approved by the Provincial Government and published in the official Gazette."
Section 75 is couched in the following terms:
75.‑(1) If any person desires to use any land for any purpose other than that laid down in the Master Plan approved under subsection (5) of section 73 he may apply in writing to the Chairman for permission so to do.
(2) If the Chairman refuses permission to any person, such person may, within sixty days of the Chairman's refusal, appeal to the Board against such refusal.
(3) The decision of the Board on any appeal under sub section (2) shall be final."
The aforesaid provisions will indicate the scheme the Act in respect of the distribution of powers and duties under the Act and, if we pause here for a moment, it would be patent that a major scheme to cover development of areas in the town of Dacca has been called the Master Plan. The duty of working out the plan has been cast on the Board of Trustees subject to the approval of the Provincial Government in case of amendments regarding the scheme. Under section 74 of the Town improve ment Act, 1953, amendment to the Master Plan by alternative schemes requires the approval of the Provincial Government, that is to say, replacement of the Master Plan by any alternative scheme requires the approval of the Provincial Government. The statute has advisedly left the question of any particular user of a specific land to be decided by the Chairman and finally by the Board itself. This has been provided in section 75 which has been quoted above.
It is, therefore, clear that, under the scheme of the Act, planning is a matter for the Board, subject to the approval of the Provincial Government. In case of departures by way of amendments of any scheme in the Master Plan itself such approval is also called for. The question of a specific permission to use any particular land in a manner which is not authorised by the plan has been left to the Chairman and, finally, to the Board. This is the Under the said Building Construction Act rules have been for mulated and they are known as rules under the East Bengal Building Construction Act, 1952. The rules provide for an elaborate procedure with regard to submission of a proposed plan for construction together with a number of requirements which the applicant is called upon to fulfil. The said section 3 of the Building Construction Act, read along with the rules and the scheme of the said Act itself, leaves no room for any doubt, whatsoever, that the function exercised by the Authorised Officer is only limited to a consideration as to whether the proposed 4 construction fulfils the rules of building construction. The, said Authorised Officer is not permitted to take any other matter into consideration in awarding or refusing such sanction. The question as to whether the plan should be approved must be examined exclusively from the point of view of principles of construction. The Authorised Officer is not allowed to travel beyond the confines to which he is required to stay by the mandate of law. It is no concern of his whether a Cinema House should be erected. The desirability of sanctioning a Cinema House is the concern of the Board and not that of the Authorised Officer. He has to guide applicants and to examine the plan submitted to him purely from a constructional point of view.
In this background, the applicant submitted a plan to the Authorised Officer, namely, respondent No. 1, for obtaining sanction of the proposed plan. The application was first made on 20‑2‑1966, that is, more than a year ago. The Authorised Officer, had, for a long time, relegated the application into cold storage and did not either give the sanction asked for or reject the application. The petitioner was, therefore, compelled to come to this Court for giving a direction to the Authorised Officer to dispose of the application of the petitioner in accordance with law. A‑Rule nisi in Petition, No. 627 of 1966 was accordingly issued by this Court on 28‑1 I‑1966.
During the pendency of the said Petition No. 627 of 1966, petitioner received a letter, being Memo. No. D. I. T. 1089‑T. P. dated 11‑3‑67 from Lt.‑Col. A. W. Qazilbash, Authorised Officer, Dacca; Dacca Improvement Trust, stating that the permission for construction of a Cinema House applied for by the petitioner could not be granted. It is an astounding letter and it constitutes a typical instance of abuse of powers. The contents of the said letter, which have been marked as Annexure 'L' to Petition No. 210 of 1967, runs thus:
"Subject:‑ Permission for construction of a Cinema House on Plot No. 2251 (new) in Mouza Dhanmandi, Dacca.
Your application for the above said permission has been duly examined. Permission applied for cannot be granted on the grounds stated below :‑
(1) That the alignment for widening of the Elephant Road as fixed by the Government in their 1961 survey shows that the plot is affected by 20 feet:
(2) The measurements of the site shown on the lay out plan differ from the measurements on the site plan (Monza Map 165'1" scale) furnished by you, and that measurements on the plan are not correct according to the scale given by you, and physically obtained at the site.
(3) That the shape of the plot shown on the site plan and building plan do not tally.
(4) That the proposed constructions have not been set back 50 ft. from the final alignment of the Elephant Road. Accord ing to your plan the proposed construction are only 5' ft. away from the existing road boundary including the part of plot jutting out on the Elephant Road.
(5) That space provided for parking of cars is not adequate. Minimum parking space is required at the scale of one car for every 35 seats, exclusive of the space required for manouvering of cars, rickshaws etc. near the movement of the visitors.
(6) That the details of the septic tank and soak pit have not been shown by you. It is also found that the provision made by you in this respect will not meet the actual requirements.
(7) That the drainage for the rain water etc. as required by rule 3(a) of application form has not been shown.
(8) That the existing building shown on the plan is purely a residential one in a residential area, and the other existing residential structures on the plot have not been shown on the plan. As such a residential area cannot be converted into a commercial or industrial plot at will.
(9) That you are not the owner of the land at present, and you have not produced any legally valid registered document to show that you have legal right to possess and build structures of your own on the land.
(10) That there is a mosque near the proposed Cinema site abutting Elephant Road. This Cinema is likely to cause inconvenience and disturbance to the people saying their prayer in the mosque and also injured their religious sentiments.
(11) That the proposed site is situated in a residential area surrounded by dwelling houses. This Cinema would constitute a nuisance to its surrounding and therefore, its permission would be against the purpose of section 3‑A(2) of the E. B. B. C. Act, and it would also constitute an infringement of the specific provisions and purpose of the Master Plan approved by the Government."
The aforesaid letter is, at least a compliance, in form, with the Rule n1si which was initially issued by this Court and therefore, the former Petition No. 627 of 1966 has become infructuous and no order need be passed in so far as that petition is concerned. But the said letter while formally complying with the rule that was issued by this Court has, in its effect and substance, disregarded the provisions of law‑which the Authorised Officer is required to follow. It is a plain refusal on grounds some of which are within the purview of the relevant law and some are totally outside the province of the Authorised officer' The refusal is not, like a parson's egg, which is partly good and partly bad, but wholly bad in its operation because the valid grounds cannot be separated from these which are invalid.
On receipt of the aforesaid letter petitioner filed another petition which has been marked as Petition No. 210 of 1967, and obtained another Rule nisi in the following terms:
"Let a Rule nisi issue calling upon the respondents to show cause why the impugned order of the Authorised Officer, respondent No. 1, contained in his Memo. No. D. I. T. 1089 T. P., dated 11‑3‑67 refusing to grant permission to the Building Plan of the Cinema House (Annexure 'G') should not be declared to have been made without lawful authority and of no legal effect and why the Authorised officer should not be directed to deal with and dispose of the said Building Plan, in accordance with law, or such other or further order or orders passed as to this Court may seem fit and proper.
At the hearing of this rule (Petition No. 210 of 1967) Mr. Syed Ishtiaq Ahmad, appearing on behalf of the petitioner, has argued that the letter dated 11‑3‑1967, quoted above, should be read in the context of an earlier letter which was written by the Authorised Officer to a Section Officer, namely, respondent No. 4 M. Siddique Ali, Section Officer, Works Department, Government of East Pakistan, Eden Buildings, Dacca. It will be seen that the said respondent, M. Siddique Ali, as admitted by his lawyer before us, lives in the neighbourhood of the land upon which the said cinema house is proposed to be erected, and, furthermore, that the said respondent, M. Siddique Ali and the petitioner were involved in a dispute between them which ended in favour of the petitioner. It is alleged that as a result of the aforesaid incident as well as because of certain private and personal interest, the said respondent, M. Siddique Ali, has travelled beyond his normal official functions and duties and has addressed unwarranted and undesirable letters to the Authorised Officer in order to influence his decision. One of such letters has been appended as Annexure `Q' to the affidavit‑in‑opposition of respondent No. 2. The letter is dated 8‑6‑1966 and its contents read thus:
"Sub:‑Permission for construction of a Cinema Hall on the Elephant Road, Dacca.
Government have come to know from reliable source that a public Cinema Hall is going to be started very soon on a plot of land owned by one Mr. Abdul Wadud Mallik situated on the Elephant Road, Dhanmandi, (East of Government New Market), Dacca, building plan for which is reported to have already been approved by him without reference to Government in contravention of instructions conveyed to him in this Department Memo. Nos. 890 dated 23‑10‑65 and 999 dated 2‑12‑65. The area in question is a thickly populated one inhabited by highly respectable citizens who are deadly against the Installation of a Public Cinema Hall there for various obvious reasons. To allow a cinema hall in a residential area will mean marring the peace, tranquillity and decency of the locality whereby it will be turned into a randazvous, resulting in unhealthy and baneful impart on the future lives of young boys and girls of the locality.
Keeping the aforesaid facts in view, the Authorised Officer is requested to submit a detailed report as to the correctness of Government information in this regard immediately. If, any permission has already been given, it should be withheld until further orders from this department:"
In the said affidavit‑in‑opposition filed bar respondent No. 2 another letter, has been annexed and marked as Annexure `B' thereto, which is a copy of the reply, given by the Authorised Officer to‑the said letter to the Section Officer. The letter is 'an illuminating one and reads thus
"Dacca Improvement Trust Office of the Authorised Officer, Dacca.
Memo. No. 2407 T. P.‑Dated 29‑6‑66 From: Lt: Col. A. W. Qazilbash,
Authorised Officer, Dacca.
To: The Secretary, Works (Buildings) Department, Eden Buildings, Dacca.
Sub: Permission for construction on the Elephant Road, Dhanmandi, Dacca.
Ref: Your Memo. No. Sec:/VII/MOIM‑40/66/487, dated 8‑6‑66.
With reference to the subject noted above, I have the honour to state that one Mr. A: Wadud Mallick submitted an appli cation for clearance, certificate for construction of a Cinema Building on C. S. Plot Nos. 225.1 and 2252 (New) of Mouza Dhanmandi, Dacca and it was refused by D. I. T. under Authorised Officer's Memo. No. 3528‑T: P., dated 20‑8‑64.
The applicant made an appeal for reconsideration of the matter and it was put up in the Board's meeting. The Board referred it to the sub‑committee formed for re‑consideration of the same. The sub‑committee recommended clearance for construction of the Cinema House and the Board of Trustees accepted the recommendation of the site in question.
No building plan for construction of the Cinema Building has yet been submitted by the party nor approved.
However, no plan for the construction of the Cinema Building will be approved by the undersigned until the Government decision is received on the matter.
(Sd.) Lt.‑Col. A. W. Qazilbash, Authorised Officer, Dacca. 27‑6‑66."
The underlining has been done by us and it is sad to reflect that an Officer of responsibility, such as the Authorised Officer, undoubtedly is, has pledged his unconditional surrender to Governmental direction which is nakedly shown in the last paragraph of the letter quoted above. The law does not permit him to do so. He is required to apply his unfettered and independent mind to the plan in order to scrutinise whether there is any constructional defect in the plan. It is also his duty to allow, with reasonable diligence, the applicant to correct any defect which can be cured. It is the duty of the Authorised Officer to fulfil his function under the East Bengal Building Construction Act, 1952, strictly in accordance with the Act and the powers thereby conferred upon him. He must not allow any extraneous matter to influence his decision, ' however, highly placed the source may be. One would have expected that the Authorised Officer would have replied to a presumptions letter addressed, on…
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