* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No. 29188 OF 2008 % Dated 01-06-2010 # Rajiv Trivedi …. Petitioner Vs. $ State of A.P. rep. By the Prl. Secretary to Government Transport, Roads and Buildngs Department, Hyderabad and 2 others …. Respondents ! Counsel for the Petitioner: Sri G.Vidyasagar ^ Counsel for the Respondents: Addl. Advocate General G.P. for Roads & Buildings <GIST: > HEAD NOTE: ? Cases referred [1] (1986) 4 SCC 632 2 AIR 1996 SC 11 3 (2006) 10 SCC 645 4 (2003) 4 SCC 579 5 (1991) 3 SCC 91 6 (1999) 6 SCC 464 7 (2003) 10 SCC 681 8 (2005) 5 SCC 181 9 1989 Supp (2) SCC 364 10 (1958) 356 US 86 11(1981) 1 SCC 568 121997(9) SCC 495 13(1989) 3 SCC 293 14AIR 1996 SC 11 HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29188 of 2008 ORDER: “Public Servants”, as the words imply, are those who hold offices under the State to serve the public at large. The no holds barred squabble in full public gaze by such officers, for retention/demolition of an extra-bedroom in the government residential quarters allotted to one of them or to continue to retain occupation of the government quarters without payment of arrears of rent due from them to the public exchequer, does not augur well for the bureaucracy and is yet another indicator of a rapid fall in the high ethical standards which public servants were hitherto known to maintain. While he was working as the Additional Director of the Andhra Pradesh Police Academy, the petitioner was allotted Flat No.2 at block no.4, Government Officers’ Flats, Road No.10, Banjara Hills, Hyderabad, vide G.O.Ms. No.385 dated 23.08.2005, for his residence. He occupied the flat in January, 2006. While the other flats in the said block have three bedrooms, the ground floor flat allotted to the petitioner has a fourth bed-room constructed by the R&B department pursuant to G.O.Rt. No.877 dated 07.10.2004. Like other blocks in the premises, block no.4 is a ground plus three (G+3) floors building and houses seven residential flats-one on the ground floor and two each in the first, second and third floors. While the petitioner wants to have the lift installed at the front of the block and thereby retain the extra bed room, the other officers, arrayed against him in this unseemly battle, seek to have the fourth bed room, in the ground floor flat, demolished and a lift installed thereat i.e., at the rear of the block. What is of ever greater concern is that precious time of the Court is sought to be consumed in resolution of the question whether a lift should be installed in front of the block or at its rear i.e., where the fourth bed room of the ground floor flat, allotted to the petitioner, is located. The petitioner, a temporary occupant of a government flat, has no legal right either to retain the fourth bed room or to insist that the government, which owns these buildings, should install a lift only in front of the block and not at its rear. Ordinarily, this Court would have refused to entertain such writ petitions as a writ of mandamus is not a writ of course or a writ of right but is, as a rule, discretionary; there must be a judicially enforceable right for the enforcement of which a mandamus will lie; the legal right to enforce the performance of a duty must be in the applicant himself and, in general, the Court would only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. (State of Kerala v. A. Lakshmikutty[1]). However as the petitioner alleges violation of statutory provisions if the lift were to be installed at the rear of the block, and has also raised a question of larger public importance regarding continued occupation of these government quarters by public servants without even paying the measly monthly rent prescribed for availing such a convenience, I do not consider it appropriate to throw the Writ Petition out at the threshold. The petitioner, along with the other six allottees of flats in block no.4, made a joint application to the R&B department on 05.10.2007 for installation of a lift. He would contend that, in the said joint application, he had mentioned that the lift should be erected keeping in mind the convenience of all residents and in co- ordination with the earlier activities of the R&B department. The government, vide G.O.Rt. No.1138 dated 26.07.2008, accorded administrative sanction for Rs.16.25 lakhs for providing lifts, with the framed structures, in block nos.4 and 6. The Executive Engineer, vide letter dated 10.10.2008, informed the Superintending Engineer that, during inspection, while the occupants had desired that the lift be erected at the rear of block no.4, after removing the additional room in the ground floor flat, the petitioner was not permitting them to do so. The District Fire Officer, on inspection of block nos.2 and 3 on 22.12.2008, informed the Chief Engineer (R&B) that erection of the lift at the rear of the blocks was in violation of the National Building Code, 2005 and the Revised Building Rules, 2006. The Chief Engineer, vide letter dated 25.11.2008, informed the Principal Secretary that originally there was no proposal to provide lifts in these blocks; subsequently, at the request of the residents, lifts had been sanctioned; the lift in block no.4 could be erected either at the front or at its rear; while erection of the lift in front of the block was acceptable, its erection at the rear would violate the National Building Code, 2005 and the Revised Common Building Rules as it would open the lift to the stair case. As the petitioner had objected to the lift being installed at the rear of block no.4, the government appointed a three member Committee; and, on receipt of its report dated 04.12.2008, issued proceedings dated 03.01.2009 for installation of the lift at the rear of block no.4 as was done in block nos.2 and 3. Sri G. Vidyasagar, Learned Counsel for the petitioner, would contend that construction of the fourth bed room at the rear of the ground floor flat in block no.4 was not at the petitioner’s behest; installation of the lift at the rear of the block would violate clause no.4.9.10(f) of the National Building Code, 2005, and para 7.2 of the Revised Building Rules, 2006, (as notified in G.O.Ms. No.86 dated 03.03.2006) since the lift would open in the mid-landing of the staircase instead of at each floor; erection of the lift, at the rear of block no.4, would not only result in wasteful expenditure as a sanctioned public asset, in the form of an additional room, would have to be demolished, it would also cause disturbance to the petitioner’s peaceful living as the room was an integral part of his accommodation; as installation of the lift at the rear of the block would result in its starting and stopping at the mid-landing of the staircase, it was not useful for three of the seven residents and only partially useful for the remaining four; and installation of the lift at the front of the block would ensure that the lift stopped at each floor; and the additional room constructed in the ground floor flat, in the year 2004, need not be demolished. Learned Counsel would further submit that the other occupants of block no.4 had defaulted in payment of monthly rent; they were in arrears of rent for several years; they continued to retain possession of the flats even though they were transferred and were employed outside the city; and the government could not, at the behest of such individuals, waste public money to demolish the additional room, constructed in the flat occupied by the petitioner, in the ground floor of block no.4. Learned Additional Advocate General, appearing on behalf of the respondents, would submit that the lifts erected in a few other blocks of the government quarters, at Road No.10, Banjara Hills, also had lifts installed at the rear of each block; the structural design forwarded to the government by the Chief Engineer, in his proposal dated 25.11.2008, was for installation of lifts at the rear of block nos.4 and 6; the new technical plan, prepared for erection of the lift, provided for a passage at mid- landing and for installation of the lift at a distance of four feet from the steps; installation of the lift at the rear of the block would ensure that the aesthetics of this and other blocks was not disturbed; the rules in G.O.Ms. No.86 are applicable only to high- rise structures and not for a ground plus three floor building; neither the Rules in G.O.Ms. No.86 dated 03.03.2006 nor the National Building Code have been violated; erection of the lift was for the convenience of all the occupants of the flats in the block; the petitioner, an occupant of a flat on the ground floor, could not deprive other officers, their old age parents and children, living in flats located on the upper floors, of the convenience of a lift; while all other flats in the block had only three bed rooms, the petitioner had an extra bed room on the ground floor; it is only to retain the 4th bed-room, and enjoy a convenience not available to the other occupants of the block, was the petitioner objecting to the installation of the lift at the rear of the block; the petitioner, who was merely a temporary occupant of a flat in a government building, did not have the locus standi to question installation of a lift thereat; the government, as the owner of the building, was entitled to provide amenities to its employees and modify the building in accordance with its requirements; having requested for a lift to be provided, the petitioner could not dictate that the lift should be erected at a particular place; these aspects had to be determined on the basis of technical sanction; in the instant case, technical sanction had been accorded for installation of the lift at the rear of the block; and whether a lift should be installed at the front, or at the rear, of the block were administrative matters not amenable to judicial review. The grounds on which administrative action is subject to judicial review are (1) illegality : this means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it; (2) irrationality, namely, Wednesbury unreasonableness; and (3) procedural impropriety. (Tata Cellular v. Union of India[2]). The Court will be slow to interfere with the exercise of administrative functions by the Executive unless the decision is tainted by illegality, irrationality and procedural impropriety. Whether the action falls within any of these categories has to be established. Mere assertion in this regard will not suffice. (Ganesh Bank of Kurundwad Ltd. v. Union of India[3]; Indian Rly. Construction Co. Ltd. v. Ajay Kumar[4]). A technical committee, constituted by the government, examined the feasibility of installation of the lift both in the front and at the rear of block no.4. While it found certain advantages and disadvantages at both the locations, the government, based on its recommendations, decided to install the lift at the rear of block no.4. Can this Court, on the touchstone of “unreasonableness”, decide whether the lift should be installed at the front, or the rear, of block no.4? A thing is not unreasonable in the legal sense merely because the Court thinks it is unwise. (G.B. Mahajan v. Jalgaon Municipal Council[5]) . Two reasonable persons can reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. A decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called ‘Wednesbury unreasonableness’. (M.I. Builders (P) Ltd. v. Radhey Shyam Sahu[6]). “Unreasonableness covers not only sheer absurdity or caprice, but also illegitimate motives and purposes, a wide category of errors commonly described as ‘irrelevant considerations’, and mistakes and misunderstandings which can be classified as self- misdirection, or addressing oneself to the wrong question. (K. Vinod Kumar v. S. Palanisamy[7]) . To arrive at a decision on ‘reasonableness’ the Court has to find out if the administrator has left out relevant factors or has taken into account irrelevant factors. The decision of the administrator must be within the four corners of the law, and not one which no sensible person could have reasonably arrived at having regard to the above principles, and must be bonafide. (Ganesh Bank of Kurundwad Ltd.3; State of NCT of Delhi v. Sanjeev[8]). To characterise a decision of the administrator as ‘irrational’ the Court has to hold, on material, that it is a decision ‘so outrageous’ as to be in total defiance of logic or moral standards. (Ganesh Bank of Kurundwad Ltd.3). Public administration, in accordance with the laws, has been entrusted to the Executive and not to the Court. Though our Constitution does not envisage a rigid separation of powers, the respective powers of the three wings of the State are well defined to ensure that each wing functions within the field earmarked for it. The object of such demarcation is to exclude the possibility of encroachment on the field earmarked for one wing by the other or others. As long as each wing of the State functions within the field carved out and shows due deference for the other two branches, there would arise no difficulty in the working of the Constitution. (A. Lakshmikutty1). No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion strictly following the procedure prescribed therein. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive. While exercise of powers by the legislature and the executive is subject to judicial review, the only check on exercise of power by Courts is the self-imposed discipline of judicial restraint. (Asif Hameed v. State of J & K[9]). The Court must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what the executive branch do. (Trop v. Dulles[10]). Unless the restriction on its power is observed the Court would, under the guise of preventing the abuse of power, be itself guilty of usurping power which does not belong to it. (Prof. Dias in Jurisprudence (5th Edn. at p. 91). The Court does not sit in judgment on the action of a coordinate branch of the government. The Constitution does not permit the Court to direct or advise the executive in administrative matters or to sermonize qua any matter which under the Constitution lies within the sphere of the executive, provided these authorities do not transgress their constitutional limits or statutory powers. (Asif Hameed9). The Court cannot usurp or abdicate, and the parameters of judicial review must never be exceeded. Even if the government has faltered in its wisdom the Court cannot, as a super-auditor, take it to task. Its function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by the rules of public administration. (Fertilizer Corpn. Kamgar Union v. Union of India[11]). To ascertain unreasonableness and arbitrariness, in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise to find out the wisdom in the administrative decision of the government. It is immaterial whether a better or more comprehensive decision could have been taken. It is equally immaterial if it can be demonstrated that the decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any Statute or provisions of the Constitution, the decision cannot be struck down. (Krishnan Kakkanth v. Government of Kerala[12]). It is not within the purview of the Court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one. (Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay[13]). The need for judicial restraint in interference with administrative actions of the Executive branch cannot be overemphasized. The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, the Court would be substituting its own decision without the necessary expertise which itself may be fallible. A fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. (Tata Cellular v. Union of India[14]). This Court would lay itself open to the criticism of usurping the executive power of the State if it were to take upon itself the task of determining whether a lift should be installed at the front or the rear of block no.4. It cannot be said that the decision of the government to install the lift at the rear of the block is demonstrably capricious or is so arbitrary as to be in violation of Article 14 of the Constitution. As this Court, in exercise of its powers of judicial review, ought not to sit in judgment over the wisdom of the executive or substitute its decision for that of the government, the administrative decision taken by the state government to locate the lift at the rear of block no.4 cannot be set aside on the ground of “unreasonableness”. On the question whether or not demolition of the fourth bed- room, of the ground floor flat in block no.4, is necessary for installation of a lift thereat, or such demolition is desirable to provide uniform facilities of three-bed rooms in each flat of the block, this Court would defer to the wisdom of the Executive. Suffice it to hold that the expenditure involved in demolition of the fourth bed room in the ground floor flat of block no.4, and for installation of a lift thereat, is not of such a magnitude as to render the administrative decision “so outrageous” as to be in total defiance of logic. As the petitioner does not allege procedural impropriety, the next question which necessitates examination is whether installation of the lift at the rear of block no.4 suffers from illegality. On the question of legality, the concern of the Court should be (1) Whether the decision-making authority has exceeded his powers; (2) committed an error of law; (3) committed a breach of the rules of natural justice; (4) reached a decision which no reasonable tribunal would have reached; or (5) abused its powers. (Tata Cellular14). As the petitioner alleges violation of Clause 4.9.10(f) of the National Building Code, 2005, and Para 7.2 of the Revised Building Rules, 2006, if a lift were to be installed at the rear of block no.4, it is useful to briefly note the statutory provisions to the extent they are relevant to the case on hand. Section 2(3) of the Greater Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as the 1955 Act) defines a “building” to include a platform and any other metal structure. The 1955 Act requires permission to be obtained for construction of a building, and the rules and building bye-laws made thereunder prescribe the building specifications and the manner in which permission should be obtained before a building, or a part thereof, is constructed. Section 585(1) enables the Government, by notification in the A.P. Gazette, to make rules for carrying out all or any of the purposes of the Act. Section 592 confers power on the government to modify or repeal bye-laws. Section 2(c) of the A.P. Urban Areas (Development) Act, 1975 (hereinafter referred to as the Urban Areas Act) defines a “building” to include any structure made of metal, or any other material, and a structure resting on the ground without foundation. Section 13 of the Urban Areas relates to declaration of development areas and development of land in these and other areas. Section 14(1) requires every person or body, including a department of the government, desiring to obtain the permission referred to in Section 13, to make an application to the authority in respect of the development to which the application relates. Section 32 prescribes the powers of the Authority in case of default in providing amenities in relation to any land in a development area. Section 46 relates to composition of offences and Section 58 confers power on the government to make rules to carry out the purposes of the Act. In exercise of the powers conferred by Section 585 read with Section 592 of the 1955 Act and the proviso to sub-section (1) read with sub-section (2) of Sections 14, 32, 46 and 58 of the Urban Areas Act, the Government made the “Hyderabad Revised Building Rules, 2005”, (hereinafter called the 2005 Rules) which was notified in G.O.Ms. No.86 dated 03.03.2006. Rule 7.2 (ii) of the 2005 Rules requires construction of buildings to be undertaken by its owners engaging registered architects/licenced builders/developers and licenced structural engineers. The designs and building plans are required to be countersigned by the owner/licenced developer, registered architect, licenced engineer and a qualified & licenced structural engineer who is required to be responsible for, among others, the safety and specifications compliance of such buildings. Rule 7.2 (vii) provides that, in all buildings, irrespective of the height provisions, the requirements of parts of the building like corridors, staircase widths, service ducts etc., shall conform to the National Building Code of India, 2005 (hereinafter referred to as the “Code”). Clause 6.4 of the Code relates to positioning of lifts, and requires a thorough investigation to be made for assessing the most suitable position for lifts while planning, after taking into account future expansions if any. Clause 6.4.1, which relates to arrangement of Lifts, stipulates that the lifts should be easily accessible from all entrances to the building. Clause 6.4.2 relates to passenger lifts and Clause 6.4.2.1 to low and medium class flats wherein the lift is arranged to serve two, three or four flats per floor. The said clause stipulates that the lift may be placed adjoining a staircase, with the lift entrances serving direct on to the landing. Part 8 of the Code relates to building services and Section 5 thereunder to installation of lifts and escalators. Clause 8.6, which relates to stairwell enclosures, provides that the location of lifts in stairwells is not recommended. Clause 4.9.10(f) stipulates that lifts should not open in staircases. Section 2(a) of the A.P. Fire Services Act, 1999, (hereinafter called the 1999 Act), defines a “building” to include any metal structure. Section 13(1) prescribes that a person, proposing to construct a high-rise building or a building proposed to be used for any purpose other than residential purpose or a building proposed to be used for residential purpose of more than 15 meters in height such as group housing, multi-storied flats, walk-up apartments, etc., should apply to the Director General, or any member of the service duly authorised by him in this behalf, before submission of such building plans to the authority or officer competent to approve the same under the relevant law, for the time being in force, for a no-objection certificate along with such fee as may