Calcutta High Court
Smt. Gayatri Chowdhury vs Kolkata Municipal Corporation & Ors on 3 January, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder, Sankar Acharyya
ORDER SHEET
GA No.3315 of 2016
APOT No.373 of 2016
WP No.793 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SMT. GAYATRI CHOWDHURY
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
AND
The Hon'ble JUSTICE SANKAR ACHARYYA
Date: 3rd January, 2017
Appearance
Mr. Dibyendu Chatterjee, Adv.
..for the appellant
Mr. Raghunath Chakraborty, Adv.
..for the respondent no.4
Mr. Barin Banerjee, Adv. with Mr. Judgal Chandra Porel, Adv.
Mr. Debangshu Mondal, Adv.
..for the KMC The Court : By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The appeal arises out of an order passed by the learned Single Judge on 19th September, 2016 in WP No.793 of 2016 [Sachindra Nath Karmakar vs. Kolkata Municipal Corporation & Ors.]. The appellant before us is the respondent no.4 in the writ proceeding who chose not to appear when the matter was taken up for consideration by the learned Single Judge. The writ 2 petitioner, Sachindra Nath Karmakar, challenged an order passed by the Municipal Building Tribunal (being a statutory Tribunal). On 4th February, 2016, the Municipal Building Tribunal had allowed the statutory appeal of the respondent no.4 on a technical point. It said that the Special Officer had no jurisdiction to pass the demolition order. The jurisdiction to pass the demolition order was with the Commissioner. He could not have delegated his authority.
The learned Single Judge while deciding the issue as sought to be raised by the writ petitioner, looked into section 48 of the Kolkata Municipal Corporation Act, 1980. The following observations of the learned Single Judge are of relevance:
"On an interpretation of sub-section [4] of Section 48 Mr. Justice Samir Kumar Mookherjee delivering the judgment of a Division Bench of this court held that since no rules had been prescribed the Commissioner could delegate any of his powers. Hence, the Commissioner had validly delegated his power to hear the demolition case to the Special Officer. This view has been subsequently followed by another Division Bench of this court in a judgment delivered on 14th January, 2016 in APOT no.8 of 2016 with WP no.824 of 2014 [Amalesh Adak & Anr. Vs. The Kolkata Municipal Corporation & Ors.]. Both these decisions were considered by Mr. Justice Soumen Sen in another unreported decision of this court in CO no.3722 of 2015 [Md. Ayub & Anr. Vs. The Municipal Commissioner, KMC & Ors.] decided on 2nd March, 2016.
Therefore, the Commissioner of Kolkata Municipal Corporation can delegate his power to hear demolition cases. The Special Officer, to whom he had delegated this power, had the jurisdiction to hear the instant demolition case."
On the basis of the above observations, the learned Single Judge proceeded to hold that the impugned order of the Municipal Building Tribunal dated 4th February, 2016 was erroneous and proceeded to set aside the said 3 decision and remanded the matter to the Tribunal to decide on merit within a certain time-frame.
While there cannot be any quarrel with the proposition of law as laid down by two Division Bench judgments referred to and relied upon by the learned Single Judge in the impugned judgment and order dated 19th September, 2016, on the question of the authority of Commissioner of Kolkata Municipal Corporation to delegate his power to a Special Officer to hear demolition cases, one vital factual aspect was required to be taken notice of and that is, whether in the facts and circumstances of the instant case, the Special Officer concerned was delegated with such powers by the Commissioner of Kolkata Municipal Corporation or not? This aspect of the matter was not taken into consideration by the learned Single Judge and on this ground alone the impugned judgment and order cannot stand the test of scrutiny in an Intra-Court Mandamus Appeal. The judgment and order of the learned Single Judge, therefore, is liable to set aside and is, accordingly, set aside.
The Municipal Building Tribunal shall go into the question as to whether the Commissioner of Kolkata Municipal Corporation had actually delegated his power to the concerned Special Officer to issue the order of demolition against the respondent no.4, being the appellant herein. Once that question is decided, the Tribunal shall proceed to dispose of the matter forthwith. While deciding the issue, the Tribunal shall be at liberty to call for the relevant records, which the concerned authority of the Kolkata Municipal 4 Corporation shall produce before the Tribunal without any undue delay. The entire exercise, in terms of this order, shall be completed by the Tribunal preferably within a period of four weeks, but not later than six weeks from the date of communication of a photostat certified copy of this order.
The appeal and the application are accordingly disposed of.
(BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.) AKGoswami