Calcutta High Court (Appellete Side)
Maswood Zahedi vs Kolkata Municipal Corporation & Ors on 4 July, 2018
IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side W.P. No. 29273 (W) of 2014 Maswood Zahedi Vs. Kolkata Municipal Corporation & Ors.
with W.P. No. 25668 (W) of 2014 For the Petitioner in : Mr. Piyush Chaturvedi, Advocate W.P. No. 25668 (W) of 2014 Mr. Supratim Dhar, Advocate For the Petitioner in : Mr. Nayan Bihani, Advocate W.P. No. 29273 (W) of 2014 Mr. Supratim Dhar, Advocate For the K.M.C. in : Mr. Achintya Banerjee, Advocate W.P. No. 25668 (W) of 2014 Mr. Subhrangsu Panda, Advocate For the K.M.C. in : Mr. Biswajit Mukherjee, Advocate W.P. No. 29273 (W) of 2014 Mr. Swapan Debnath, Advocate Hearing concluded on : June 29, 2018 Judgment on : July 4, 2018 DEBANGSU BASAK, J.:-
Two writ petitions are taken up for consideration analogously as they relate to the same order passed by the Special Officer (Building) exercising jurisdiction under Section 400(1) of the Kolkata Municipal Corporation Act, 1980.
W.P. No. 25668 (W) of 2014 is a writ petition seeking implementation of the Order dated January 11, 2014 passed by the Special Officer (Building). For the sake of convenience, such writ petition is referred to as the first writ petition and the petitioner as the first writ petitioner. W.P. No. 29273 (W) of 2014 is a writ petition which assails the Order dated January 11, 2014. Such writ petition, again for the sake of convenience is referred to as the second writ petition and the petitioner as the second writ petitioner.
Learned Advocate for the first writ petition submits that, since, the Order dated January 11, 2014 is appealable and no appeal having been filed by any of the parties and since such order remains unimplemented, the Court should direct implementation of such order expeditiously. Learned Advocate appearing for the second writ petitioner submits that, the Order dated January 11, 2014 (hereinafter referred to as the 'impugned order') stands vitiated by breach of principles of natural justice. Although, the impugned order is appealable, nonetheless, since such order stands vitiated by principles of natural justice, the Writ Court should intervene. He submits that, the impugned order considers documents, which such documents were not made over to the second writ petitioner, despite the second writ petitioner making a request for such documents, in writing. In support of such contentions, he relies upon a supplementary affidavit filed in the second writ petition. He submits that, by a writing dated December 31, 2013, his client had requested for supply of the Demolition Sketch Plan and the precis relied upon by the department. Despite receipt of such letter, the authorities did not supply, copies of the documents requested to the second writ petitioner. He refers to the impugned order and submits that, Demolition Sketch Plan and precis have been referred to in the impugned order. In particular, he draws the attention of the Court to the portion of the impugned order, which contains the directions for demolition. In support of the contention that, the authorities are obliged to follow the principles of natural justice in the proceedings before the Special Officer (Building), he relies upon 1986 Volume 4 Supreme Court Cases page 537 (Institute of Chartered Accountants of India v. L.K. Ratna & Ors.) and 1993 Volume 3 Supreme Court Cases page 259 (D.K. Yadav v. J.M.A. Industries Ltd.) and a passage from De Smith, Woolf and Jowell, Judicial Review of Administrative Action, Fifth Edition. He submits that, the existence of a statutory alternative remedy is not an appropriate answer when the adjudicating authority had acted in breach of principles of natural justice. Non-supply of copies of documents, on which the department had rested its case, vitiates the proceedings and the impugned order. The department not having made over the documents to the second writ petitioner, the impugned order stands vitiated by breach of principles of natural justice. He relies upon 2008 Volume 16 Supreme Court Cases page 276 (Nagarjuna Construction Company Limited v. Government of Andhra Pradesh & Ors.) in support of his contentions.
Learned Advocate appearing for the first writ petitioner submits that, the second writ petitioner had adequate notice and knowledge of the contents of the documents. He submits that, the Demolition Sketch Plan is immaterial, inasmuch as, the entirety of the floor has been directed to be demolished. Moreover, the petitioner was well- aware of the extent of unauthorised construction and the precis prepared with regard thereto. He refers to the contents of the impugned order and submits that, at no point of time did the petitioner object to the proceedings being undertaken without copies of the Demolition Sketch Plan and precis being made over. No point of prejudice was raised at the time of hearing. The petitioner did not press for copies of documents at the time of hearing on January 11, 2014. According to him, principles of natural justice are not straight jacket formula. The petitioner has to establish that the petitioner had suffered prejudice for such petitioner to invoke the principles of natural justice successfully.
The first writ petitioner had filed the writ petition being W.P. No. 1109 (W) of 2012 alleging unauthorized construction at the behest of the second writ petitioner. Such writ petition was disposed of by directing the Executive Engineer to inspect the building and if he is of the view that, there are unauthorized constructions then, the authorities to initiate proceedings under Section 400 of the Act of 1980. It appears that, the executive Engineer was of the view that, there subsisted unauthorized construction for the Corporation authorities to initiate proceedings under Section 400(1) of the Act of 1980. Consequently, a proceeding under Section 400(1) of the Act of 1980 being D/Case No. D/VII/80/12-13 was initiated in respect of Premises No. 22/A, Jhowtala Road, Kolkata. The impugned order was passed in such demolition proceedings. The impugned order records that, an inspection of the premises was held on April 5, 2012 and during inspection it was detected that, there are unauthorized construction when a notice under Section 400(1) of the Act of 1980 was issued. The impugned order records that, precis and the Demolition Sketch Plan were prepared. The section writ petitioner had submitted an explanation stating that, he had only made replacement of the tile sheds with asbestos for protection of his family members. The impugned order records that, the explanation is an admission of unauthorized construction. The next question posed in the demolition proceedings was whether such unauthorised construction should be demolished or allowed to be retained. It proceeds to hold that, the unauthorized constriction should be demolished.
The second writ petitioner contends that, the impugned order stands vitiated by reasons of breach of principles of natural justice as the precis and the Demolition Sketch Plan were not made over to the petitioner despite the writing dated December 31, 2013 being submitted much prior to the impugned order. The second writ petitioner was present in the course of hearing when the impugned order was passed. In the course of hearing of the demolition proceedings, the petitioner did not press his request for copies of the documents contained in the writing dated December 31, 2013. The recording of the impugned order suggests that, the writ petitioner was aware of the contents of the precis and also the Demolition Sketch Plan. In fact, the entirety of the construction was directed to be demolished. Therefore, there was no dearth of materials to the second writ petitioner and available on record, for the second writ petitioner, to understand to the extent of the demolition proceedings and the impugned order.
The passage of Judicial Review of Administrative Action by De Smith Woolf and Jowell, Fifth Edition relied upon by the second writ petitioner suggests that, if relevant evidential material is not disclosed at all to a party which is potentially prejudiced by it, there is prima facie unfairness. In the present case, the record suggests that, the second writ petitioner was aware of the precis as also of the Demolition Sketch Plan. It had asked for copies of such document by the writing dated December 31, 2013. However, it did not press for copies of such documents at the time of hearing of the demolition case resulting in the impugned order. It cannot be said that, the second writ petitioner has suffered prejudice by the alleged non-supply of such documents. Nagarjuna Construction Company Limited (supra) is a case, where upon findings, the authorities had proceeded on the basis of materials which are not available to the writ petitioner, the actions taken by the authorities were found to have been vitiated by the breach of principles of natural justice. D.K. Yadav (supra) and L.K. Ratna & Ors. (supra) are of the view that, principles of natural justice apply to any proceeding which involve civil consequences to a party.
Principles of natural justice cannot be put into a straight jacket formula and applied in a mechanical manner. A proceeding may appear to be in breach of principles of natural justice. However, such breach may not result in any prejudice to the person affected thereby. There may be circumstances where, a remand to the adjudicating authority, on the ground that its initial order stands vitiated by breach of principles of natural justice may be a futile exercise, when, particularly, no other view can be taken on the subject even if the principles of natural justice are adhered to. In the facts of the present case, I am not in a position to arrive at a finding that, the second writ petitioner stood prejudiced by reason of the so-called non-supply of the precis and the Demolition Sketch Plan. There are sufficient materials available on record to suggest that, the second writ petitioner was aware of the same although such documents may not have been formally made over to the second writ petitioner. In such circumstances, I find no reason to intervene with the impugned order at the instance of the second writ petitioner.
W.P. No. 29273 (W) of 2014 stands dismissed. So far as W.P. No. 25668 (W) of 2014 is concerned, since, the impugned order remains outstanding and there is no appeal directed against the same, the authorities will implement such order, in accordance with law, within four weeks from date.
Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]