Calcutta High Court (Appellete Side)
Shree Calcutta Gujarati Samaj vs Dhriti Kanta Lahiri Choudhury & Ors on 25 April, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
19 25.4.16 F.M.A. 986 of 2015
akb With
C.A.N. 1692 of 2015 (Stay)
Shree Calcutta Gujarati Samaj
-Versus-
Dhriti Kanta Lahiri Choudhury & Ors.
With
M.A.T. 570 of 2015
With
C.A.N. 4724 of 2015 (Section 5)
With
C.A.N. 4725 of 2015 (Stay)
Mr. Kishore Dutta
Mr. Kallol Basu
Mr. Suman Banerjee ...For the Appellant Gujarati Samaj
Mr. Biswaroop Bhattacharyya
Mr. Sounak Bhattacharyya
Mr. Debabrata Das
Mr. Partha Banerjee ...For the respondent No. 1 /
Writ Petitioner Mr. Biswajit Mukherjee Ms. Rituparna Sarkar ...For the K.M.C. & Appellant in MAT 570 of 2015 Mr. Prithu Dudhoria ...For the State Respondents The appeal, being MAT 570 of 2015 is barred by time. Causes being sufficient, delay is condoned and the appeal is taken on record.
The application for condonation of delay, being CAN 4724 of 2015 is, thus, disposed of.
There will be no order as to costs.
Heard learned Counsel appearing on behalf of the parties in both the appeals.
Apparently, the building which becomes the subject matter of writ petition, is a building belonging to the appellant Samaj/Samity wherein a charitable dispensary is being run, not just for the community of the 2 appellant but for the general public.
The writ petitioner complains violation of building laws and guidelines so far as the construction of dispensary building by the appellant Samaj/Samity. Special Officer while considering the complaint of the writ petitioner was of the opinion, there were deviations in the construction but the said deviations do not come in the way of enjoyment of the property by the writ petitioner in any manner and no prejudice would be caused to him if such deviations were to be regularised.
Aggrieved by this order writ petitioner / respondent approached the learned Single Judge by filing a writ petition and learned Single Judge after hearing the parties made a detailed order finding fault with the Special Officer of the respondent Corporation concluding that in the absence of any application or request from the appellant Samity, the owner of the building seeking regularisation of deviations made in the construction of the building, the Special Officer exceeded his authority or jurisdiction in opining to regularise such deviations.
Aggrieved by this order of the learned Single Judge the appellant Samity is before us.
As a matter of fact, Special Officer had referred to deviations item-wise and was of the opinion, most of such deviations were inside the building premises which would not affect the general public in any manner and proceeded to pass the order. Apparently, no application of any nature was forthcoming to regularise such 3 deviations. If a public authority while discharging their duties could excuse or take exception to such situation and regularise deviations, it would send wrong signal to the public and may even create an impression that any one can violate the law and get away with it. This is not at all a healthy situation for the institution as well as the administration in general. No public office or authority can have sympathy or consideration for such charitable work as an excuse to overlook the mandatory requirements.
In that view of the matter order of the learned Judge to that extent was justified in opining that Special Officer ought not to have proceeded to consider regularisation without even an application from the appellant Samity.
Then coming to the actual deviations or the measurement of the deviations vis-à-vis the sanction plan, it is a matter of factual assessment which ought to be taken into consideration while coming to conclusion whether it would come within the parameters of regularisation, if not how much could be regularised and which portion could be regularised and which has to be demolished. All depends upon various factors to be taken into consideration. This definitely requires inquiry into the factual situation after giving opportunity of hearing to both the parties.
Therefore, we are of the opinion, the Tribunal contemplated under Sub-Section 3 of Section 400 of the 4 Calcutta Municipal Corporation Act is the Statutory Appellate Authority, who can look into the factual issues and do the needful, including setting aside the order of the Special Officer or giving further directions for compliance, either to the owner of the building or to the Special Officer for proceeding with the matter further.
It is needless to say that we have not expressed any opinion on merits of the case. The Tribunal has to take a final call after hearing both the parties in the light of observations made above.
Accordingly we allow the appeals setting aside the order of the learned Single Judge permitting the respondent/writ petitioner to approach the Statutory Appellate Authority within two weeks from today. The time limit within which the appeal could have been filed by the respondent/writ petitioner is excluded since they were litigating before this Court in the writ petition.
With these directions, both the appeals are disposed of along with all the connected applications.
( Manjula Chellur, Chief Justice ) ( Arijit Banerjee, J. )