Calcutta High Court (Appellete Side)
Susama Saha vs Kolkata Municipal Corporation & Ors on 29 February, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice:- Harish Tandon
C.O. 2762 of 2011
with
CAN 11046 of 2011
Susama Saha
-vs-
Kolkata Municipal Corporation & Ors
For Petitioner:- Mr. Gopal Chandra Ghosh
For Opposite Parties
No. 2 & 3:- Mr. Probal Mukherjee
Mr. Kanak Kiran
Bandopadhyay
For K.M.C.:- Mr. Mr. Biswajit Mukherjee
Mr. Debangshu Mondal
For Opposite Party No. 4:- Ms. Chandana Ghosh
Heard on : 21st December 2011 &
31st January 2012
Judgment on : 29th February 2012
Harish Tandon, J :
2 This revisional application is directed against an order dated 25.05.2011 passed by Special Officer (Building) of Kolkata Municipal Corporation in Demolition Case No. 20-D/I/2005-06 by which an application for appointment of engineer for inspection and investigation was rejected.
An interesting point is taken by way of a preliminary objection by the opposite parties relating to the maintainability of an application under Article 227 of the Constitution of India as the Special Officer (Building) of the Kolkata Municipal Corporation is not a Tribunal.
To substantiate the said point, it would be trite to quote Article 227 of the Constitution of India, which reads thus:
"Article 227 (1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may -
(a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to
the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."3
On bare reading of the said provision it appears that the High Court has superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Thus the power of superintendence under Article 227 of the Constitution can be exercised by the High Court if the order complained in the said application is passed by the Tribunal or Court.
Much debate is made upon whether the Special Officer (Building) can be termed as "Tribunal" having trappings of Court.
To ascertain whether the Special Officer (Building) can be said to be Tribunal should be judged and determined from the nature of the functions discharged by it. Section 400 of Kolkata Municipal Corporation Act, 1980 empowers the Municipal Commissioner to make an order for demolition of any erection or work if the same is done without any sanction or in contravention to the sanction granted under Section 396 of the said Act provided before passing an order of demolition a notice is served upon the person responsible by the Municipal Commissioner and a reasonable opportunity of hearing is given.
Section 39 of the said Act defines the power and functions of the Municipal Commissioner as such powers and functions are imposed upon him by the Act. However, Section 48 (3) (b) of the said Act confers power upon the Municipal Commissioner to delegate his powers and functions to any officer or an employee of the Corporation, including the power under Section 400 (1) of the said Act. Before dealing further it would be profitable to quote the aforesaid provisions which reads thus:
"39. Powers and functions of the Municipal Commissioner.-
(1) The Municipal Commissioner shall be the principal executive officer of the Corporation and shall, subject to the supervision and control of the Mayor,-4
(a) exercise the powers and perform the functions specifically conferred or imposed upon him by or under this Act or by any other law in force for the time being;
(b) assign the duties, and supervise and control the acts and proceedings, of all officers and employees of the Corporation. (2) All officers and employees of the Corporation shall be subordinate to the Municipal Commissioner."
48. Delegation of powers and functions.- (1) The Corporations may by resolution delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Mayor-in-Council. (2) The Mayor-in-Council may by order delegate, subject to such conditions as may be specified in the order, any of its powers or functions to the Mayor or to the Municipal Commissioner.
(3) Subject to such standing orders as may be made by the Mayor- in-Council in this behalf,-
(a) the Mayor may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions to the Deputy Mayor or the Municipal Commissioner;
(b) the Municipal Commissioner may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions including the powers or functions under section 397, sub-section (1) of section 400 and sub-section (1) of section 411 to any other officer or any employee of the Corporation; and
(c) any officer of the Corporation other than the Municipal Commissioner may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions to any other officer subordinate to him. (4) Notwithstanding anything contained in this section, the Mayor-in-Council, the Mayor, the Municipal Commissioner, or the other officer referred to in clause (c) of sub-section (3) shall not delegate-
(a) any of its or his powers or functions delegated to it or him under this section, or
(b) such of its or his powers or functions as may be prescribed.
400. Order of demolition and stoppage of buildings and works in certain cases and appeal.- (1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and 5 the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3).
Explanation- In this chapter, " the person at whose instance" shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions if any, or does it by himself.
(2) The Municipal Commissioner may make an order under sub-
section (1) notwithstanding the fact that the assessment of such building ahs been made for the levy of the property tax on lands and buildings. (3) Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415.
(4) Where an appeal is preferred under sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub- section (1), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a 6 surely, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5) Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section. (6) Every order made by the Municipal Banking Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-section (1) shall be final and conclusive. (7) Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-section (1) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
Mr. Prabal Mukherjee is very much vocal in contending that the Special Officer (Building) is a delegatee of the Municipal Commissioner and exercises powers and functions as administrative authority and, therefore, is not amenable under Article 227 of the Constitution.
To demonstrate the distinction between an administrative action and the judicial or quasi-judicial action, he placed reliance upon a judgment rendered by the Five Judges Bench of the Supreme Court in the case of Engineering Mazdoor Sabha -vs- Hind Cycles Ltd., reported in AIR 7 1963 SC 874. It has been held therein that whether an act is judicial or quasi-judicial or purely executive or administrative depends upon the terms of the particular rules and Act and the nature, scope and effect of the particular powers in exercise of which the act is done. The Apex Court further held that where an authority is required to act judicially either by an express provision of the statute under which it acts or by necessary implication, the decisions of such an authority generally amount to quasi- judicial decisions.
Another Five Judges Bench of the Supreme Court in the case of Associated Cement Companies Ltd. -vs- P.N. Sharma, reported in AIR 1965 SC 1595 held that an authority, other than the Court, may be vested by statute with judicial powers to determine conclusively the rights of one or more contending parties with regard to any matter in controversy between them in following words:
"43. The limitations as also the full amplitude of the meaning o the word "tribunal" are thus to be found on a consideration of Article 136 in all its parts, with such aid as may be derived from other Articles of the Constitution. The context of Article 136 and the constitutional background impose the limitation that the tribunal must be an adjudicating authority vested with the judicial power of the State. Barring this limitation, the word must receive a wide and liberal construction. The basic principle of Article 136 is that if a litigant feels that injustice has been one by a court or any other body charged with the administration of justice, there is one superior court he may always approach and which, in its discretion, may give him special leave to appeal so that justice may be done. The plenitude of the residuary appellate power under Article 136 embraces within its scope all adjudicating authorities vested with the judicial power of the State, whether or not such authorities have the trappings of a court.
44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is 8 sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private arbitrator or a tribunal acting under Section 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Article 136. It matters little that such a body or authority is vested with the trappings of a court. The Arbitration Act, 1940 vests an arbitrator with some of the trappings of a court, so also the Industrial Disputes Act, 1947 vests an authority acting under Section 10-A of the act with many of such trappings, and yet, such bodies and authorities are not tribunals."
In the case of Ashoka Marketing Ltd. -vs- Punjab National Bank, reported in (1990) 4 SCC 406, the Five Judges Bench of the Supreme Court considered the power of the Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act 1971 to be a quasi- judicial act.
What is culled out of the above reports is that there cannot be any straight jacket formula to determine the powers and functions of an authority to be purely administrative or executive one or the judicial or quasi-judicial one but it depends upon the nature of the powers and functions to adjudicate under the statute or statutory rule. This Court, in the case of Commissioner, Corporation of Calcutta -vs- Sailendra Nath Banerjee and Ors., reported in 1977 (2) CLJ 505, considered the point as to whether the Municipal Commissioner, exercising power under Section 9 414 of the Calcutta Municipal Corporation Act, 1951 (which is in pari materia with Section 400 of Kolkata Municipal Corporation Act, 1980) discharged as quasi-judicial or not, the Division Bench held that the Municipal Commissioner has a discretion to demolish any unauthorized construction or not to demolish but such discretion should be exercised quasi-judicially in these words:
"4. In the case reported in (1) Purusottam Laliji v. Ratan Lal Agarwalla, AIR 1972 Cal. 459, the Full Bench while considering the power of the Deputy Commissioner under section 414 of the Calcutta Municipal Act held as follows:-
"We must, however, emphasise the importance of giving some indications of the reasons in the order. We, therefore, hold that the Commissioner has a discretion to order demolition or not to order demolition even in a case where the construction was unauthorised, but that discretion must be used bona fide and on proper materials and not on the extraneous ground, but upon the facts of each particular case. Having considered the matter from that point of view, it appears to us that we cannot hold that the Commissioner has used discretion in view of the facts and circumstances of this case improperly or arbitrarily".
Therefore, according to the Full Bench judgment, the Commissioner has discretion under section 414 either to demolish the unauthorised construction or not to demolish it but the said discretion must be exercised quasi judicially. Section 414 A of the Act provides for an appeal against the order made by the Commissioner under section 414 (3). In our opinion, the appellate authority has the same power. If the commissioner has the power to exercise the discretion, as has been held by the Full Bench, the appellate authority, that is, the Building Tribunal has the same power." (Emphasis suplied) Therefore, it can be safely said that being the delegatee of the Municipal Commissioner, the Special Officer (Building) exercised its power quasi-judicially and his action cannot be said to be purely administrative and/or executive. The authority which exercised its power quasi-judicially can be termed as Tribunal, as has been held by the Supreme Court in the 10 case of Manmohan Singh Jaitla -vs- Commissioner, Union Territory, Chandigarh & ors., reported in AIR 1985 SC 364 which reads thus:
"7. The High Court declined to grant any relief on the ground that an aided school is not 'other opportunity' under Art. 12 of the Constitution and is therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression 'Tribunal' as used in Art. 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under Art. 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers under S. 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court." (Emphasis supplied) Therefore, it cannot be said that the Special Officer (Building) is not a Tribunal and is not amenable under the superintendence jurisdiction of High Court under Article 227 of the Constitution.
Mr. Prabal Mukherjee, the learned Advocate, in alternative, argued that the High Court should not exercise its power under Article 227 of the Constitution in case where there is an alternative efficacious remedy by way of an appeal provided under the statute.
By contending so he refers to sub-section 3 of Section 400 where any person aggrieved by an order of the Municipal Commissioner made under sub-section 1 may prefer an appeal before the Municipal Building Tribunal within 30 days from the date of the order.
Mr. Gopal Chandra Ghosh is right in contending that an appeal contemplated under sub-section 3 of Section 400 is maintainable against a 11 final order passed by the Municipal Commissioner or Special Officer (Building) under sub-section 1 of Section 400 but it does not imbibe within itself, any other order which is not passed under the said provision. The appellate power of the Municipal Building Tribunal is against a final order passed under sub-section 1 of Section 400 and no appeal could be filed against an order passed by the Special Officer (Building) by which an application for appointment of engineer is rejected. Thus the interim order is not capable of being assailed before the Municipal Building Tribunal.
Therefore, the point taken by Mr. Prabal Kumar Mukherjee that the order is appellable before the Municipal Building Tribunal is not tenable.
This Court now has to consider whether an order rejecting an application for appointment of engineer is illegal, perverse and occasioned injustice to the petitioner.
It appears from the respective submissions that a complaint was made by Mr. Mukherjee's client as far back as in the year 2002 relating to an unauthorised and illegal construction undertaken by the petitioner in deviation from a sanctioned plan.
In the year 2005 Mr. Ghosh's client also made a complaint before the Kolkata Municipal Corporation alleging an illegal and unauthorised construction made by one of the tenant in collusion and connivance with Mr. Mukherjee's client but the said complaint was not taken cognizance of which constrained Mr. Ghosh's client to approach this Court under Article 226 of the Constitution. The writ petition filed by Mr. Ghosh's client was disposed of with a direction to consider the said complaint/representation made by Mr. Ghosh's client.12
Pursuant to the said order a proceeding was conducted by the Special Officer (Building) and an order of demolition was passed.
It is the grievance of Mr. Ghosh's client before the appellate Tribunal that the Special Officer (Building) did not conduct the proceeding on the basis of the complaint made by him before the Corporation but proceeded to decide the proceeding which was initiated on the basis of the complaint made by Mr. Mukherjee's client.
It appears from the order of the Building Tribunal that such confusion has been made explicit and ultimately the order of demolition was set aside and the matter was remitted back on open remand in these words :
"That the Demolition Case No. 20-D/2005-06 Br.I in respect of premises NO. 16/5, Paikpara Raja Manindra Road along with the C.R. containing all documents is sent back on open remand to the KMC Deptt. With the direction that the Ld. Mpl. Commissioner will hear the matter afresh and or to depute his authorised representative to hear the case afresh on the basis of materials in the Case Record and also on the basis of documents filed by this appellant and the Respondent No. 4 & 5 of this appeal, after giving them an opportunity of being heard and after sending the notice, precis and other materials documents to this appellant and to dispose of the said demolition case on merit on the basis of complaint of this appellant dated 3.5.05 and in compliance with the direction of the Hon'ble Court given in WP No. 10267 (W) of 2005 and also on the basis of observation made in the body of the judgment, according to law."
Although Mr. Mukherjee's client assailed the said order of the Building Tribunal before this Court but the revisional application was ultimately dismissed.
Thereafter, the petitioner took out an application for appointment of an Engineer to verify the sanctity and authenticity of the statements made in the said complaint petition. The Special Officer 13 (Building) rejected the said application as the same does not have any substance. While rejecting the said application, the Special Officer (Building) expressly recorded that the demolition proceeding, being 20-D/2005-06, was initiated on the complaint of Smt. Saha, i.e. the client of Mr. Ghosh, which has been directed by the Appellate Authority to be reconsidered by the Special Officer (Building) on remand.
Therefore, there is no ambiguity that the aforesaid demolition case was initiated on the basis of the complaint of Mr. Ghosh's client which has been directed to be considered afresh on remand in terms of the order of the Municipal Tribunal.
It further appears that there has been an enquiry on the basis whereof the precis and the demolition sketch plan has been prepared, which forms basis of the demolition proceeding, and as such, there is no occasion to appoint another Engineer Commissioner to make an enquiry and/or inspection, as suggested by Mr. Ghosh's client. In such view of the matter, this Court does not find that the order impugned herein suffers from illegality or infirmity.
The revisional application is, accordingly, disposed of .
In view of disposal of the main revisional application, the connected application, being C.A.N. 11046 of 2011, has become infructuous and is accordingly disposed of.
There will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
ac (Harish Tandon, J.)
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