Calcutta High Court
Madhulata Kankani vs Kolkata Municipal Corporation And Ors. on 13 July, 2007
Equivalent citations: 2007(4)CHN558
Author: Dipankar Datta
Bench: Dipankar Datta
JUDGMENT Dipankar Datta, J.
1. Feeling aggrieved by the order dated 26.4.2007 passed by the Special Officer (Building) of the Kolkata Municipal Corporation (hereafter the Corporation) in Demolition Case No. 12-D/06-07, the petitioner has approached this Court with the present petition. By the said order, the Special Officer has directed the petitioner to demolish the impugned unauthorised constructions at her own cost and risk within 15 days from date of communication thereof, failing which the Corporation would be entitled to demolish the same at her risk and cost.
2. Mr. Chakraborty and Mr. Das Adhikari, learned Counsel for the Corporation and the private respondents respectively, at the outset, raised a preliminary objection regarding maintainability of the present petition. They contended that Section 415 of the Kolkata Municipal Corporation Act, 1980 (hereafter the Act), inter alia, provides a forum for appeal against any order passed under Section 400 thereof and, therefore, the petitioner ought to be relegated to the Building Tribunal. It has also been submitted by them that the exception(s) which would justify interference despite availability of an alternative remedy being non-existent in the present case, the Writ Court may not entertain the present petition. They further contended that having regard to the plea raised by the petitioner before the Special Officer (Building) to the effect that the alleged unauthorised constructions were in existence at the time she was inducted as a tenant by the private respondents (landlords) in the premises in question and denial of such plea by the landlords before the Special Officer, disputed questions of fact have surfaced which cannot be effectively decided by the Writ Court and, therefore, the Building Tribunal constituted under Section 415 of the Act consisting of a member of the West Bengal Higher Judicial Service, would be the appropriate forum to decide such dispute and grant complete relief to the petitioner, provided a case for interference is made out by her.
3. In support of their submissions, learned Counsel have relied on the following decisions:
(i) : Hindusthan Steel Works Construction Limited v. Hindusthan Steel Works Construction Employees Union;
(ii) 2006 (9) SCC 233 : H.P. Electricity Regulatory Commission v. H.P. State Electricity Board;
(iii) : Ashok Kumar Sonkar v. Union of India;
(iv) : Sanjana M. Wig (Ms) v. Hindustan Petroleum Corporation Ltd.;
(v) 87 CWN 221: In re : Satish Chandra Banik;
(vi) 87 CWN 592 : Kalidas Dutta v. Corporation of Calcutta and Ors. and
(vii) : A.P. Foods v. S. Samuel and Ors.
4. Mr. Das Adhikari also addressed this Court on the merit of the petition and submitted that the writ petition is devoid of any substance.
5. It has accordingly been prayed that the writ petition be dismissed.
6. Mr. Panja, learned Counsel appearing for the writ petitioner on the other hand has contended that the present writ petition is well-nigh maintainable despite availability of an alternative remedy since the Special Officer (Building) proceeded against the petitioner in clear breach of principles of natural justice and that he acted absolutely without jurisdiction, which constitute the exceptions and clothe the Writ Court with the necessary authority and competence to entertain the present petition.
7. According to him, the Special Officer had relied on documents being the demolition sketch (Ext. 2) and the inspection report (Ext. 3) without furnishing the same to the petitioner. It is his submission that irrespective of the fact as to whether the petitioner had asked for the said documents or not, it was the obligation of the Special Officer to furnish the same to her. Having failed to furnish such documents but having relied on the same, the Special Officer had acted in breach of principles of natural justice.
8. He further argued that since the petitioner had been charged with raising construction in deviation from the sanctioned plan, it was the basic document which should have been considered by the Special Officer for arriving at a proper finding in this respect. The same not having been called for and considered, the Special Officer acted without jurisdiction in passing the impugned order of demolition.
9. It was next submitted by him that the nature of the unauthorised constructions being minor, as has been recorded by the Special Officer (Building), he acted wholly without jurisdiction in not regularizing the same upon imposition of fine.
10. In support of his submissions, Mr. Panja relied on the following decisions:
(i) : Whirlpool Corporation v. Registrar of Trade Marks;
(ii) : Appropriate Authority v. Sudha Patil;
(iii) : Sovachand Mulchand v. Collector of Central Excise;
(iv) : Ramchandra Keshav Adke v. Govind Joti Chavare; and
(v) 2006 (4) CHN 136 : Laddu Gopal Bajoria v. Kolkata Municipal Corporation and Ors.
11. He, accordingly, prayed for admission of the writ petition, direction for exchange of affidavits and interim order restraining the Corporation from proceeding further in terms of the impugned order of demolition till it is finally, heard.
12. Having heard learned Counsel for the respective parties and considering the facts and circumstances of this particular case, this Court is constrained to hold that this is not a fit and proper case where the writ petition ought to be entertained.
13. Decisions are legion that the rule which requires exhaustion of alternative remedy is a rule of convenience and discretion rather than rule of law. At any rate, it does not oust the jurisdiction of the Court. But the Courts, in their own wisdom, have imposed a restraint on exercise of jurisdiction under Article 226 of the Constitution where the party invoking the jurisdiction has an effective adequate alternative remedy. Situations where a High Court would be justified in entertaining a writ petition despite availability of alternative remedy have been laid down in Whirlpool (supra). Paragraph 15 thereof being relevant is quoted below:
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the Hon'ble Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
14. Having regard to the above principle of law, this Court shall proceed to consider whether any case has been made out or not form entertaining the writ petition.
15. It has been urged on behalf of the petitioner that the Special Officer (Building) by not furnishing to the petitioner Exts. 2 and 3, being the demolition sketch and the inspection report respectively, has acted in violation of principles of natural justice.
16. Till the decision : State Bank of Patiala v. S.K. Sharma, violation of natural justice itself without proof of prejudice was considered fatal rendering the action complained of as a nullity. However, in S.K. Sharma (supra) it was held that if no prejudice results from the violation of natural justice complained of, no interference is called for. In its decision reported in 2006 (8) SCC 776 : P.O. Agarwal v. State Bank of India, the said principle has been reiterated by the Apex Court.
17. Law appears to be well-settled not that a complaint of violation of principles of natural justice has to be tested on the touchstone of prejudice, unless the case falls under "no notice", "no opportunity" and "no hearing" categories.
18. The present case is not one falling under "no notice", "no opportunity" and "no hearing" categories and, therefore, in order to succeed on the complaint of violation of principles of natural justice, it is necessary for the petitioner to establish the prejudice suffered by her by reason of non-furnishing of the demolition sketch and the inspection report. Prejudice is a question of fact which has to be pleaded and proved. It is to be noted that the petitioner has not raised any allegation that she was not provided with the precis (Ext. 1). The precis is prepared by the departmental authorities to convey the nature of unauthorized construction(s). Demolition sketch is the graphical exposition of the precis. The precis and the demolition sketch are prepared on the basis of an inspection report. In the notice to show-cause issued under Section 400(1) of the Act and the precis, the unauthorized constructions for which the petitioner was sought to be proceeded against were indicated. The petitioner was therefore made well and truly aware of the alleged unauthorized constructions. On the basis of his finding that the constructions shown in the precis are unauthorized, the Special Officer directed its demolition. Any construction not forming part of the precis has not been directed to be demolished. In such circumstances, it was for the petitioner to plead and prove prejudice owing to non-supply of Exts. 2 and 3. There appears to be no pleading in the petition in this respect. The petitioner, thus, has failed to demonstrate prejudice suffered by her due to alleged non-supply of the demolition sketch and the inspection report. This Court is thus unable to record a finding that the proceeding initiated against the petitioner stood vitiated due to breach of natural justice.
19. That apart, in the writ petition there is no specific allegation that the demolition sketch and the inspection report were marked exhibits behind the back of the petitioner. Apart from vaguely alleging that various documents had been considered by the Special Officer without supplying copies thereof, no particulars of such documents have been disclosed. On the contrary, it appears from the impugned order, that demolition sketch and the inspection report were marked exhibits at the time of hearing when the authorized representative of the petitioner was present and had denied the allegations of the department as made out in the precis (Ext. 1), which again has not been disputed. It is, therefore, difficult for this Court to conclude that the petitioner never had the opportunity of looking into the contents of Exts. 2 and 3.
20. The complaint that there has been violation of natural justice in directing demolition of the alleged unauthorised construction cannot therefore sustain and is held untenable.
21. Kegarding non-production of the building plan and the approach of the Special Officer to direct demolition of alleged unauthorised construction without looking into it, this Court is of the further considered view the same cannot be said to be an act without jurisdiction. If at all, the same may amount to an error committed by the Special Officer in exercise of jurisdiction. Error committed in exercise of jurisdiction is not quite the same as acting without jurisdiction. Therefore, this complaint also does not provide a ground for the writ petitioner to urge this Court to entertain the writ petition.
22. This Court is also not convinced that any case of breach of fundamental rights has been made out by the petitioner.
23. Having regard to the rival submissions at the bar it has appeared to this Court that disputed questions of fact are really required to be gone into and being a Court of Writ, it would not be proper to entertain the writ petition. Reappreciation of evidence is the task of an appellate authority. Being a judicial review Court, it is not open to this Court to sit an appeal over the decision of the Special Officer.
24. The decisions which have been cited on behalf of the petitioner, on facts and in this circumstances of this case, do not lend her any assistance.
25. The decision in Sudha Patil (supra) was on a different issue altogether. It would appear from paragraph 5 of the decision that the issue which came up for consideration was whether in the absence of provision for a statutory appeal, the supervisory power of the High Court under Article 226 could be enlarged in any way and can the High Court in such a case exercise an appellate power and re-appreciate findings to come to its own conclusion. This question was answered, in view of the reasons given in paragraph 6, that the jurisdiction of the High Court does not get enlarged and appellate power cannot be exercised, and it is only when the inferior Tribunal considers extraneous or irrelevant materials or has failed to consider relevant materials or has based its conclusion on no evidence or the finding of the Tribunal is such that no reasonable man can arrive at such conclusion on the basis of the materials before it, can the Writ Court interfere. When admittedly a statutory appeal is available to the petitioner, it is not for the Writ Court at this stage to consider the issue of property of the order passed by the Special Officer in the light of the above tests.
26. In view of the finding arrived at by this Court that the petitioner did not suffer any prejudice, if at all her plea of not having the opportunity to look into Exts. 2 and 3 i? to be believed, the decision in Sovachand Mulchand (supra) does not come to the rescue of the petitioner.
27. There cannot be any dispute with regard to the rule adopted by Jassel, M.R. in Taylor v. Taylor 1876 (1) Ch C 426, which has since been followed by the Apex Court in its decision in Ramchandra Keshan Adke (supra) that where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all and that other modes of performance are necessarily forbidden. However, such proposition cannot have any application in the instant case at the present stage since a statutory appeal being available, it is for the petitioner to demonstrate before the Building Tribunal that the Special Officer (Building) in passing the impugned order has ignored the same and/or acted contrary thereto.
28. The decision in Laddu Gopal Bajoria (supra) is also distinguishable of facts inasmuch as in that case the Court found on facts that the building plan was absolutely necessary for a decision to be given by the Corporation. In the present case it has been admitted by the private respondents that there is no existence of the building plan since the building in question is more thanhundred years old. Learned senior Counsel for the petitioner submitted that the alleged unauthorised constructions were in existence at the time she was inducted as a tenant But in her letter dated 10.9.97 (page 37 of the petition) it is the claim of the petitioner that there was a wooden mezzanine floor which was worn out and in the letter dated 14.8.06 it is her claim that the flat had been repaired fully with the consent of the landlords in the year 1994, permission wherefor had been granted by the Corporation. Having regard to the documents at pages 30 and 31 of the petition it appears to this Court that the petitioner had been inducted as a tenant in respect of one flat on the first floor on the building in question, and there is no reflection of any intermediate floor within the tenanted portion. It seems that inconsistent pleas have been raised by the petitioner and in view thereof it cannot be contended with any degree of certainty that non-production of the building plan was fatal. It is for her to establish how an intermediate floor with wooden stair in between first and second floors could come into existence after her induction as a tenant. For proving such point, production of the building plan may not be absolutely necessary.
29. However, the above discussion is not to be construed as in aid of any determination made by this Court on the point. What effect non-production of the building plan would have on the alleged unauthorised construction or whether any inconsistent plea has been raised by the petitioner have to be decided by the Building Tribunal on hearing the parties and considering the materials placed before it without being influenced by the same, if approached.
30. Various other contentions have been urged on behalf of the petitioner, viz. reply, filed by her was not considered in the proper perspective and that the Special Officer relied on extraneous materials while proceeding to pass the impugned order. According to learned Counsel, the actions of the Special Officer suffer from perversity. It has also been submitted that on a writ petition filed by the landlords (private respondents), there was an order of this Court restraining the Hearing Officer from passing any final order. Therefore, the impugned order of demolition could not have been passed without obtaining leave from this Court.
31. Grievance regarding perversity in the action of the Special Officer as raised by the petitioner cannot be construed as sufficient ground for the Court of Writ to entertain the present petition. In the humble view of this Court, a statutory appeal being available this is not the appropriate stage to look into this complaint. The same view applies to the contention that the alleged unauthorised constructions being minor in nature, retention of the same ought to have been allowed by the Special Officer. It cannot be disputed that it is the discretion of the Special Officer to allow retention or not. Whether or not the Special Officer and reasonably exercised discretion must also necessarily fail for a decision of the Building Tribunal.
32. This Court has looked into the records of proceeding before the Special Officer. It appears that initially he was also of the view that without obtaining leave from the Court the final order cannot be passed and hence decided against passing any final order unless leave of this Court is obtained. However, on an application filed by the private respondents (landlords) urging that the interim order is not connected with the demolition proceeding, he proceeded to pass the impugned order holding that the concerned order of this Court did not stand in his way to pass the final order. Mr. Panja submitted that this action is also in violation of principles of natural justice and hence the order is liable to be interfered with.
33. Although it would have been proper for the Special Officer to put the petitioner on notice after receipt of the said application from the private respondents, this Court is of the further considered view on consideration of the order dated 28.1.05 passed by a learned Judge of this Court on a writ petition filed by the private respondents (landlords), that nothing turns on such action inasmuch as this Court is satisfied that there is no subsisting interim order passed by this Court in any petition restraining the Special Officer frompassing the final order in connection with the demolition proceeding and that he did not act contrary to any order of this Court.
34. For reasons discussed above, this Court is not inclined to entertain the writ petition. It, therefore, fails and is dismissed.
35. However, there shall be no order for costs.
36. It would be open to the petitioner to approach the Building Tribunal constituted under Section 415 of the Act for its decision on points that have not been decided by this Court hereinbefore.
Later:
37. Prayer for stay made by learned Counsel for the petitioner is considered and refused.
38. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 3 days from date of putting in requisites therefor.