Calcutta High Court (Appellete Side)
Sanat Kumar Singha Roy vs Tarak Nath Mondal & Anr on 19 April, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Mir Dara Sheko
C.O. 1405 of 2016
Sanat Kumar Singha Roy
-Versus-
Tarak Nath Mondal & Anr.
For the Petitioner : Mr. Sabyasachi Bhattacharyya
Mr. Arup Banerjee
Judgment on : April 19, 2017
1. Mr. Sabyasachi Bhattacharyya, learned Advocate being assisted by Mr. Arup
Banerjee, learned Advocate representing the petitioner is present. None appears to
represent the opposite parties.
2. It appears from the record that Mr. Sounak Bhattacharya, erstwhile learned
Advocate-on-Record on behalf of the private opposite party submitted that he has
already retired from this case and on this day he apprised this Court that his client has
taken no objection prior to March 30, 2017.
3. Despite service of notice upon the opposite parties including the private party
through speed post, none appears also on this day. Therefore, the matter is taken up
for consideration of hearing on merits of course at the instance of the learned
Advocates appearing for the petitioner.
4. This application under Article 227 of the Constitution of India has been
directed assailing the judgment dated February 2, 2016 passed by the learned Civil
Judge (Junior Division), Additional Court, Chandernagore, Hooghly, in Municipal
Appeal No. 300032 of 2014, since, such an appeal against the order made by the
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Board of Councillors in this behalf shall lie before the Court having local jurisdiction
as per the provision laid down under Section 218 (3) of the West Bengal Municipal
Act, 1993 (hereinafter referred to as the said Act of 1993). The private opposite
party No. 1, Tarak Nath Mondal, preferred the aforesaid municipal appeal
challenging the order of demolition dated May 22, 2014 passed by the Chairman on
behalf of the Board of Councillors, Tarakeshwar Municipality. Learned Civil Judge
(Junior Division), Additional Court, Chandernagore, Hooghly, decided the main
issue No. 3 framed thereunder allowing the appeal on contest assigning the following
reasons :-
(i) No notice was served by the respondent Municipality upon Tarak Nath
Mondal under Section 220 of the said Act of 1993, and, therefore the respondent Municipality did not follow the statutory provisions of Section 220 of the said Act;
(ii) Even though the Municipality claimed that a notice under Section 220 of the said Act was served but on scrutiny of the record learned Court could not find the same and thereby observed 'the respondent- municipality failed to produce said notice under Section 2120 of the West Bengal Municipal Act, 1993';
(iii) The respondent-municipality who ought to have followed the provisions of law and since it was not followed there was violation of principle of natural justice, which is a basic canon of jurisprudence;
(iv) It is held : 'On a careful scrutiny of the inspection report dated 24/1/2014, which is the backbone of the impugned demolition order dated 22/05/2016, in compliance with the order of the Hon'ble Court, Calcutta in respect of W.P. NO. 20121 (W) of 2013 made by the officer of the respondent-municipality, it appears that the alleged deviation made by appellant/petitioner is on the other side of the house of pro-forma respondent, namely, Sanath Kumar Singha Roy who is also the private respondent of this appeal and complainant in this case. On perusal of the said report of the respondent no. 1, dated 24.01.14, it also appears 3 that the suit property may not be properly demarcated due to different records in between registered deed, porcha and plan etc. When there is a doubt in the mind of respondent-municipality regarding the demarcation of the suit premises, then it cannot pass any order of demolition on the ground of encroachment against the appellant/petitioner';
(v) "One of the basis principles governing the demolition of a building or premises is that if actual area of deviation is not large; either public safety neither endangered nor public or section of public inconvenienced by reason of construction; direction for demolition of upper floor by the Hon'ble High Court not tenable." This portion, however, was borrowed by the learned Civil Judge from a decision reported in AIR 1989 SC 860; and
(vi) "Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum."
5. Upon such findings and observations, the learned Civil Judge allowed the appeal by setting aside the order of demolition which reads as follows :-
"ít is ordered that the instant appeal for setting aside the impugned order of demolition dated 22,05,14 passed b y the respondent no. 1, be and the same is allowed on contest but without any cost.
That the impugned order of demolition dated 22.05.14 passed by respondent no. 1, is hereby set aside.
The Municipal Appeal is thus disposed off."4
6. From the tenor of the observations of the learned Trial Court this Court finds that virtually the learned Civil Judge found that there was no notice served under Section 220 of he said Act of 1993 and thereby natural justice was violated. That apart since the so-called deviations were not so large the same could have been condoned. But equally the learned Civil Judge could not turn aside the judicial mind but to observe that the deviations, if any, could have been condoned if the same would be bona fide or would be attributed to some misunderstandings but not deliberate deviations.
7. This Court within the ambit of Article 227 of the Constitution of India in one sense enjoys wide and ample jurisdiction to exercise the constitutional power to keep the works of the authorities subordinate to it under scrutiny. On the other hand i.e. in other sense, so far as the decision making process, if it is found without any lapse or latches, then except any exceptional situation this Court prevents itself from exercising any such power of superintendence. Therefore, balancing over such principles let me consider and construe as to whether learned Civil Judge in acting as appellate authority within the ambit of Section 218(3) of the said Act of 1993 has rightly exercised or not the jurisdiction vesting to it. For better appraisal of the lis let me quote the provisions laid down under Section 218 (1) and Section 220 which read as thus :-
"218. Order for demolition or alteration of buildings in certain cases.--(1) if the Board of Councillors is satisfied--
(a) that the erection of any building--
(i) has been commenced without obtaining sanction or permission under the law, or 5
(ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or
(iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf."
220. Power of Chairman to stop unauthorised construction.--
(1) in any case in which the erection of a building or any other work connected therewith has been commenced or is being carried on unlawfully, the Chairman may , by written notice, require the owner or the on such erection or unlawful work to discontinue the same forthwith, pending further proceedings as respects such unauthorised construction.
(2) If any notice issued under sub-section (1) is not duly complied with, the |Chairman may, with the assistance of the police or any employee of the Municipality, if necessary, take such steps as he may deem fit to stop the continuance of the unlawful work.
(3) If it appears to the Chairman that it is necessary, in order to prevent the continuation of the unlawful work, to depute any police or employee of the Municipality to watch the premises, the cost of providing the same shall be borne by the person to whom the said notice was addressed."
8. Therefore, as a student of law one can understand that there cannot be any illegibility to understand the difference between the two provisions. The first one is enacted to take action as an interim measure by issuing notice to stop work, of course being satisfied about the wrong, if it is done by any citizen in the matter of raising construction in the municipal area either without sanction or by deviating from the sanction plan. Eventually the provisions of Section 218 is the ultimate action to be taken by the authority vested with the jurisdiction to pass order of demolition if despite opportunity or despite issuance of notice as an interim measure the citizen could not mend himself to obey the provisions of the Municipal Act.
69. Therefore, at the very outset this Court has no hesitation but to hold that the learned Civil Judge has been swayed by emotion showing leniency in the name of natural justice throwing aside the provisions of law and by concentrating his observations only alleged non-service of any notice under Section 220 of the said Act.
10. May be for the latches of the respondents before the learned Civil Judge for not placing all the relevant documents some communication gap could have been taken place. But this is the established principle that if anybody comes before the law of equity for seeking equity, then he must come with clean hands. It is pertinent to mention that prior to preferring the appeal under reference there was two rounds of previous proceedings faced by the parties before this Court. In W.P. 4041 (W) of 2013, which was initiated by the present petitioner Sanat Kumar Singh Roy not only Municipal Authorities but also the appellant of the aforesaid Municipal appeal, namely, Tarak Nath Mondal respondent No. 6. The said writ proceeding was disposed of on February 14, 2013 where this Court observed as follows :- Ädmittedly, a stop work notice was issued under S. 220. Unless the Chairman was prima facie satisfied that the construction was unauthorized, he could not issue the notice. Hence it is beyond comprehension why the Board of Councillors did not register a case under s. 218. If the construction was erected unauthorizedly, no authority could ask the parties to settle the matter amicably. An unauthorised construction must be demolished. The Board of Councillors will be free to examine whether the s. 220 notice should remain in force".
11. The subsequent proceeding being W.P. 20121 (W) of 2013 was again initiated at the instance of the self-same Mr. Tarak Nath Mondal where the notice of demolition of the unauthorised construction as was issued by the Chairman, 7 Tarakeshwar Municipality on June 13, 2013 was assailed, and, this Court by disposing of the said writ proceeding though had set aside the force of the said notice dated June 13, 2013 but had clearly indicated "if it is found that unauthorized construction has been carried out, it shall be demolished forthwith thereafter. Till the matter is heard by the Board of Councillors of the said Municipality and reasoned order is passed and communicated, no construction shall be carried out in any manner whatsoever by the petitioner. This Court, however, though disposed of the said writ petition with the above observations and directions did not go into the merits".
12. It has already been indicated that before the Court of learned Civil Judge (Junior Division), the appeal was preferred by the opposite party, Tarak Nath Mondal against the order of demolition issued by the Chairman on behalf of the Board of Councillors, Tarakeshwar Municipality on May 22, 2014. For proper appreciation the short text of the said notice dated May 22, 2014 is quoted below :-
"From the above circumstances it is ordered that as it is proved that Tarak Nath Mondal has constructed his residential house violating section 218 of West Bengal Municipal Act, 1993 and he could not produce any documents in contrary, Sri Tarak Nath Mondal will demolish the unauthorized construction of his residential house which has already been informed though the enquiry report within 4 weeks from the date of communication of this order. If default such unauthorized construction will be demolished by the Board of Councillors at the expense of Sri Tarak Nath Monal as per provision of section 218 of West Bengal Municipal Act, 1993.
With the above direction the demolition proceeding is disposed of.8
This order be communicated to both the parties."
13. In view of the above, while this Court noticed participation of the opposite party Tarak Nath Mondal in the earlier two round of writ proceedings before this Court over the same lis of unauthorised construction and there was clear-cut indications and observations of this Court upon the Municipal Authority, and, while all those facts and circumstances under which the directions and observations of this Court were made, said Tarak Nath Mondal now in the garb of preferring an appeal before the Civil Court cannot take a de novo plea of non-service of any notice that too of a notice under Section 220 of the said Act of 1993. I have already indicated that issuance of notice is one of the other interim measures to be adopted by the Municipal Authority as and when the circumstance so demands. When such autonomous body has been acting within the provisions of the Act then those acts and actions ought to have been taken after thorough inspection which also have been done in this case and after inspection the alleged violation of the Rules vis-à-vis the deviation from the sanction plan could have been noticed by the Municipal Authorities.
14. Of course the present proceeding before this Court is at the instance of the petitioner, who has complained about all the deviations and violations caused by the private opposite party, Tarak Nath Mondal. It is immaterial, who is making the complaint. Had there been any violation and if it is brought to the notice of the appropriate authority now it is the bounden duty to take action up to end as is permissible under the provision of the Act and Rules. On the contrary, if the Authority remains silent, or, taking the worst case, any such silence is observed by remaining in collusion with the party at default, even then the wrong or violation could be set on motion at the instance of any law abiding citizen as it has happened 9 in the case. Of course in the case in hand it is noticed that the Municipal Authority did not sit tight rather they have been prevented somewhere by the intervention of the intermittent proceedings.
15. Now taking the observations of the learned Civil Judge as already quoted above I have found that instead concentrating under the provisions of Act and Rules, learned Civil Judge has given contradictory observations. Once he has observed that had there been any deliberate deviations then the party at fault had to suffer its disadvantage. On the other hand being swayed by rather emotion and condoning the wrong of said Tarak Nath Mondal and observing that said illegal construction did not cause any wrong to the public safety and did not violate any natural justice therefore ultimately decided to set aside the notice of demolition issued by the Chairman by order dated May 22, 2014.
16. It is needless to mention that before the said notice parties were heard on February 18, 2014, claim of both parties also were perused, the enquiry report also taken into account and the objection as filed also was considered wherein the opposite party Tarak Nath Mondal had admitted some deviations of construction that is unauthorised construction. The Municipal Authority had issued the impugned notice dated May 22, 2014 by a covering letter dated June 09, 2014, obviously which is a final notice of demolition within the ambit of Section 218 (1) of the West Bengal Municipal Act, 1993. Therefore, such an order of demolition within the ambit of Section 218(1) of the said Act has no nexus with the previous interim notice under Section 220 of the said Act of 1993, on which the learned Civil Judge had concentrated. Rather service of final notice for demolition while is served automatically any notice under Section 220 of the Act becomes infructuous. Therefore, the observations of the learned Civil Judge in the Municipal Appeal under 10 reference as quoted above having been held not only wrong and illegal, but perverse since Learned Court on the face of the materials on record having failed to appreciate the provisions of law and to make distinction between the notice under Section 220 and under Section 218 (1) of the said Act and also having been failed to take note of participation of Tarak Nath Mondal in the earlier two round of proceedings before the High Court over the self-same lis, rather said Tarak Nath Mondal having suppressed those material facts, rather, about his active participation in the earlier writ proceedings discussed above cannot take plea of non-service of notice.
17. This Court within the ambit of Article 227 of the Constitution of India now cannot take any second thought but to set aside the judgment delivered by the learned Civil Judge (Junior Division), Additional Court, Chandernagore, Hooghly, on February 02, 2016 in Municipal Appeal No. 300032 of 2014, meaning thereby the order of demolition dated May 22, 2014 issued by the Chairman on behalf of the Board of Councillors, Tarakeshwar Municipality has become in vogue for its implementation and the concerned Municipal Authority accordingly is free to act in accordance with law.
18. The revisional application is, thus, allowed.
19. There would be no order as to costs.
20. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Mir Dara Sheko, J.) akb.