A. W. MALLIK Versus THE AUTHORIZED OFFICER, DACCA IMPROVE MENT TRUST AND OTHERS
1. MURSHED, C. J. ---‑These two applications have been heard together by us and this judgment will dispose them of.
2. 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.
3. 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.
4. 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:
5. "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
6. Provided that such cancellation shall not affect the validity of any action taken by the Board in pursuance of the said notification."
7. Section 74 runs thus:
8. "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."
9. Section 75 is couched in the following terms:
10. 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."
11. 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.
12. 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.
13. 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.
14. 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:
15. "Subject:‑ Permission for construction of a Cinema House on Plot No. 2251 (new) in Mouza Dhanmandi, Dacca.
16. 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."
17. 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.
18. 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:
19. "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.
20. 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:
21. "Sub:‑Permission for construction of a Cinema Hall on the Elephant Road, Dacca.
22. 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.
23. 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:"
24. 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
25. "Dacca Improvement Trust
26. Office of the Authorised Officer,
27. Dacca.
28. Memo. No. 2407 T. P.‑Dated 29‑6‑66
29. From: Lt: Col. A. W. Qazilbash,
30. Authorised Officer, Dacca.
31. To: The Secretary,
32. Works (Buildings) Department,
33. Eden Buildings, Dacca.
34. Sub: Permission for construction on the Elephant Road,
35. Dhanmandi, Dacca.
36. Ref: Your Memo. No. Sec:/VII/MOIM‑40/66/487, dated
37. 8‑6‑66.
38. 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.
39. 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.
40. No building plan for construction of the Cinema Building has yet been submitted by the party nor approved.
41. 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.
42. (Sd.) Lt.‑Col. A. W. Qazilbash,
43. Authorised Officer,
44. Dacca. 27‑6‑66."
45. 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 behalf of the Provincial Government, by asking the writer of the letter to desist from addressing such unrelevant and impertinent letter to him. Instead of doing so, he has totally surrendered his statutory discretion to anticipated commandments of the Provincial Government which have nothing to, do, at this stage, with matters relating to approval of a plan for construction of a building.
46. It is in the light of the aforesaid letter that the refusal by respondent No. 1 ‑to approve the plan submitted by the petitioner must be construed: It is obvious that the letter dated 11‑3‑1967 (Annexure `L') is an attempt to confer an abortive legal form to a total surrender to an extraneous authority, as expressed in the letter, marked Annexure `It' to the affidavit‑in‑opposition of respondent No. 2.
47. We are fortified in the view that we have taken by the contents of the letter (Annexure `L') dated 11‑3‑67 in which an array of eleven grounds have been taken for withholding the approval of the plan. We have already quoted the said letter. We may particularly mention paragraphs 8; 9, 10 and 11 thereof, which in our opinion are matters which must not be considered by the said Authorised Authority. Whether the plan is against the scheme of the Master Plan is a matter which is beyond the province of the Authorised Officer to consider. It is a matter which was required to be considered by the Board of Trustees. It is the Board, and no other authority, except, at an earlier stage, the Chairman of the Dacca Improvement Trust, which could deal with a matter like this.
48. Section 74 of the Town Improvement Act, as quoted above, expressly authorises the said Board to allow a plan for a con struction which is not within the scheme of a residential area. It will be seen that the plot in question appertains to a zone which is not exclusively residential, but "is also marked as appertaining to ancillary purposes. It is not for the Authorised Officer to investigate and examine matters which are entrusted, by law, to the Board.
49. With regard to paragraph 9 of the letter, it is not for the Authorised Officer, but for a Court of law, to consider the legal right of the applicant with regard to the aforesaid plot of land. The Authorised Officer cannot refuse approval of a plan on the ground that the applicant has failed to produce any registered document showing his legal right to possess and build the structure. This is again a matter which is wholly extraneous to the Act. . We may now take ground No. 10 of the, letter. Proxi mity 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 C and is not empowered to go into the question at all. Lastly, with regard to paragraph 11 in which it is stated that the Cinema House would constitute a nuisance to surrounding dwelling houses, we may repeat that this again is a matter which has to be considered by the Board and is outside the province of the Authorised Officer to decide.
50. The aforesaid observations made it clear that the above mentioned letter by which the Authorised Officer communicated his disapproval of the plan is based on considerations other than those prescribed bylaw and is, as such, illegal and without lawful authority. We may repeat that some of the grounds are prima facie tenable but the illegal grounds cannot be separated from the final order of rejection which is the purpose of the impugned letter. It would not, however, serve the purpose of this application to merely declare that the Authorised Officer has‑acted illegally.
51. What, then, is the duty of the Authorised Officer? When 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, D 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. Having regard to the limited nature of his function under the Building Gon struction 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 E of construction and to investigate whether there are defects in the plan purely from a constructional point of view. He is clot allowed to embark upon an investigation 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 o If the Authorised Officer. It is the demand of law that he must disabuse his mind from any such consideration.
52. If the Act is examined, it would be seen that his plain duty is to give such an approval subject to reasonable alterations from the constructional point of view, as we have already stated. He should allow the applicant reasonable time to fulfil any reasonable suggestion made by him. This is why plans are often approved subject to such reasonable corrections. He is not permitted to impose any unreasonable and impracticable conditions, and, if the applicant is prepared to modify the plan in accordance with any reasonable requirement made by him, his duty is togrant such application and he cannot withhold the same on. unwarranted grounds. His plain duty is not to stile the plan but to allow it subject to reasonable requirements in aid of well‑understood principles governing such construction.
53. It has been argued by Mr. T. H. Khan 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 deputation to the Trustees for the improve ment of Dacca. This is a pompous and pretentious claim which is not countenanced 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 authorises 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 Act 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. The argument was adorned with a platitude that the Authorised Officer was not a mere automaton. Trite, he is not a mere automaton; but his power and duty is defined by law. He is called upon to investigate the plan submitted to him from the technical point of view of building construction and he must not travel beyond the scope of such purpose. In such investigation he is required to apply his own independent mind, uninfluenced by any direction from any quarter, even if such a quarter is a governmental agency. Mr. T. H. Khan then referred to the provisions; of section 3‑A of the Act ;which reads follows:
54. "3‑A.‑(1) No owner or occupier of a building shall, without obtaining previous permission from the Authorised, Officer or the Committee, as the case may be, use the. building for the purpose other than that mentioned in the sanction.;
(2) When the Provincial Government' is satisfied that the existing use of any land or building does not conform to the scheme of land utilisation indicated in the Master Plan, the Provincial Government may, by an order in writing, direct the owner, occupier or the person in charge of the land or : building to discontinue such use and, in the case of a building, also to remove or dismantle such building Provided, however, that the owner, occupier or the, person in charge of the land or building shall be given six months' time before effect is given to the order of discontinuance of such use and twelve months' time before effect is given to the order of removal or dismantlement of the building Provided further that no existing or future use of any land or building for combined residential and commercial purpose shall be discontinued or prohibited unless in any particular case, such use imitates against the dominant character of the scheme of land utilisation as indicated in the Master Plan and constitutes a nuisance generally to the zone and particularly to the neighbourhood in which the land or building is situated."
55. A reading of this section would show that the power has been vested in the Authorised Officer to investigate and rectify any nuisance of any existing building. If, for instance, a budding which was sanctioned for the purpose of residence in a residential area, is used for another purpose, the Authorised Officer can interfere in respect of such user. This section contemplates a use of existing buildings. The Provincial Government is expressly authorised to give directions in this behalf. But, such a situation does not arise in the present case. Moreover, it is patent that section 3‑A, as quoted above, cannot override the provisions of section 75 of the Town Improvement Act, under which the petitioner obtained sanction from the Board.
56. Mr. T. H. Khan drew our attention to a decision of the Supreme Court in the case of District Magistrate, Lahore v. Sayyed Fayyazuddin (PLD 1965 SC 371). This is a case where under the Cinematograph Act the District Magistrate of Lahore had stopped the completion of a cinema hall with regard to which, on a previous occasion, he had given a No‑Objection Certificate. It WAS contended that the impugned order could not be given because the District Magistrate himself had given the No‑Objection Certificate on a prior occasion. The Supreme Court has held that the impugned order was under section 3 of the Cinematograph Act and the previous No‑Objection Certificate was a mere certifi cate given by the District Magistrate in his executive capacity as the head of the administration of the district, whereas the impugned order was one which was made in obedience to a statutory duty. In the impugned order the District Magistrate stated that in compliance with a direction by the Provincial Government he was asking that the cinema hall be not completed. The statute in this case expressly empowered the Provincial Government authority to give such a direction. This case does not support the contention of Mr. T. H. Khan in the present case. Turning again to the said decision of the Supreme Court P L D 1965 S C 371, it would be seen that the Supreme Court has elaborately discussed the Cinematograph Act and has noticed the power of control vested in the Provincial Government. It is thus clear that the Cinematograph Act, 1918, itself expressly authorises the Provin cial Government to control the granting of licences to Cinema Houses. In pursuance of the statutory powers of the Provincial Government a direction was given which was binding upon the District Magistrate. Therefore, the impugned order was strictly in accordance with the Act and not ultra vires of the powers of the Provincial Government. The District Magistrate in passing the impugned order was acting in accordance with the law.
57. In the present case the Building Construction Act, 1952, does not authorise the Provincial Government to give any such direction as have been given by the respondent No. 4 in the letter quoted above. It may be noted that the letter refers to two otter letters, addressed by the Provincial Government to the Authorised Officer: These letters have been placed before us. It is sufficient to note that the aforesaid letters cannot be con strued as any circular issued by the Government and, furthermore, such letters and circulars are unauthorised by law. It is extremely undesirable that such letters should have been written to the Authorised Officer because they constitute an illegal attempt to influence the decision of the Authorised Officer upon whom alone a duty has been imposed by the statute, specially in view of the fact that provision for appeal to the Provincial Government has been made in section IS of the Building Construction Act from an adverse decision made by the Authorised Officer. This is enough to indicate the pernicious effect which such letters tend to produce in the context of the Act itself.
58. On the contrary, the cases which have been cited by Mr. Ishtiaq Ahmed are more appropriate to the points which have been raised before us. Mr. Ishtiaq Ahmed has referred to the case of the Commissioner of Police v. Gordhandas (AIR 1952 S C 16). This is a case in which the Commissioner of Police, Bombay, refused to grant licence under section 22 of the City of Bombay Police Act, 1902, on the ground which was stated thus:‑
59. "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter . . . . . dated 16th July 1947 is hereby cancelled."
60. It was held that the aforesaid section had cast a duty to be performed exclusively by the Commissioner of Police and that it was not competent to the Provincial Government to give any direction to him in this behalf. This illustrates the point which we have enunciated above, namely, that the Provincial Government cannot give any direction whatsoever with regard to approval or disapproval of a plan under the Building Construction Act by the Authorised Officer.
61. To the same effect in the case of Motilal v. Uttar Pradesh Government (A I R 1951 All. 257). Interpreting section 58 of the Motor Vehicles Act, 1939, it was held that the Provincial Government was incompetent to give any, direction with regard to exercise of powers by the Regional Transport Authority and, furthermore, that section 58 of the Act did not empower the Provincial Government to do so. This is enough to dispose of the point discussed above.
62. Coming back to the merits of the case, we may note that in the light of the allegations made in the petition against respon dent No. 4, and having regard to the affidavit‑in‑opposition submitted by the said respondent, we are of opinion that there is a good deal of substance in the allegations made by the petitioner which, on analysis, would, probably, be held to have been substantiated. We, however, refrain from giving any final decision on this point, having regard to the fact that Mr. Mofakher, who has appeared before us for the said respon dent, has stated that the said officer has no, personal animus against the petitioner and it has also been stated to us that the said officer is now working in some other capacity in the Provincial Government and will have nothing to do with questions relating to building and planning. Since we are assured that he will refrain from showing any further undue interest in the matter, we can leave the point here.
63. So far as the Provincial Government is concerned Mr. T. H. Khan has expressed his willingness to convey to the relevant authority that Government Officers must keep to the letter and spirit of law and must conform not merely to the requirement of law, but to legal forms, as well. We do not anticipate that the Provincial Government will any longer arrogate to itself such dangerous usurpation of power which the law confers exclusively on another authority. If it is felt that the Provincial Government should exercise an over all control over such matters, suitable legislation may be enacted in this behalf.
64. So far as the Authorised Officer is concerned, we direct him not to allow any extraneous matters to influence his decision because he is not permitted to do so. It is his duty to approve the plan subject to reasonable modifications suggested by him from the point of view of the Building Construction Act. It is not his function to subvert the plan because he may think that it is undesirable to allow a cinema house to be erected in that particular locality. He must not stifle the working of the Act. It is his duty to act in aid of the Act.
65. The petitioner has stated, in the petition filed in this Court, that he is ready and willing to comply with the requirements specified in paragraphs 4, 5, 6 and 7 of the letter dated 11‑3‑67 (Annexure 'L') quoted above.
66. Some amount of apprehension was expressed in this Court that the Authorised Officer may travel beyond the grounds indicated in the aforesaid letter. It is obvious that such apprehension need not be entertained in view of the fact that any extra burden which the Authorised Officer may seek to impose on the petitioner would constitute a strong prima facie evidence of the mala fide nature of such additional burden. Since the requirements already imposed by the Authorised Officer are substantially capable of fulfilment and having regard to the fact that the applicant is willing to alter the plan accordingly, it seems that the Authorised Officer would have nothing else to do but to approve the plan subject to the alterations suggested by him. However, we direct the Authorised Officer to consider the revised plan and to dispose of the plan submitted by the petitioner in accordance with law and with due diligence. Already the matter has been unnecessarily delayed for over one year.
67. In the aforesaid premises, Rule No. 627 of 1966 is discharged and Rule No. 210 of 1967 is made absolute. Mr. Ishtiaq Ahmad has addressed us in respect of the costs of these applications. We are impressed by the force of his argument, but, having regard to the trend of events taken before us, we refrain from awarding any costs to the petitioner.
68. Before parting with the case, I would like to deal with a point which arises out of the petition itself. We are glad to note that Mr. T. H. Khan has not taken the point and has apparently disowned it. The point may be stated thus: This writ petition is incompetent inasmuch as the petitioner has not availed himself of a remedy by way of preferring an appeal under section 15 of the Building Construction Act. The question is, would the said remedy be considered to be adequate under the special circum stances of this case? The provisions of section 15 of the said act are as follows:‑
69. "An appeal, if presented within thirty days from the date of the order appealed against, shall lie to the Provincial Govern ment against every order under section 3 or section 3‑A or section 4 or section 5 or section 6 or section 9, and the decision of the Provincial Government on such appeal shall be final and shall not be called in question in any Civil Court."
70. In answer to any anticipated argument that this application is incompetent because the petitioner has not availed himself of the remedy as provided by the said section 15, Mr Ishtiaq Ahmed has drawn our attention to the fact that the Provincial Govern ment, which has been constituted as the appellate authority, has itself expressed its mind in this case and has illegally given direc tions by way of letter which has been challenged by the petitioner. Respondent No. 4 is a duly competent officer to act by and on behalf of the Provincial Government. In the aforesaid circum stances, the said right of preferring an appeal can, at best, be described as an appeal from Caesar to Caesar, as observed by Harries, C. J., in the case of Assistant Collector of Customs v. Soorajmull (A I R 1952 Cal. 656). Such an appeal, to our mind, is useless, and we hold that the application to this Court without resorting to the remedy available under section 15, is competent, under the Q circumstances, of the present case. Any such appeal, under such circumstances, would be merely an act of supererogation and cannot be described as adequate remedy and, far less, as an alternative remedy.
71. In view of the fact that the Authorised Officer has wasted a good deal of time previously in not giving any approval to the plan, certain reasonable apprehension has been raised in the mind of the petitioner. We, therefore, direct the Authorised Officer to re‑consider the plan. In the light of the observations we have made above, and to dispose of the application as speedily as possible. Any undue delay in the matter would be a breach of the statute. It is obvious that the petitioner is at liberty to come with a fresh application to this Court against any unreasonable act which may have aggrieved him, if so advised. The question of costs can then be examined.
72. Lastly, we may reiterate, that we have already stated, that if the Provincial Government thinks that it should exercise a general supervision with regard to matters relating to the giving of approval to proposed construction of cinema houses, an appropriate legislation may be passed to that end.
73. ABDULLAH J.‑-- I agree.
74. A. B./S. A. H. Rule made absolute.