Calcutta High Court (Appellete Side)
Chittaranjan Das vs The Kolkata Municipal Corporation & Ors on 4 October, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
z 1
72. 04.10. W.P. 21637 (W) of 2017
Sd3 2018
Chittaranjan Das.
Versus
The Kolkata Municipal corporation & Ors.
Mr. Sukanta Chakraborty
Mr. Anindya Halder
...for the petitioner.
Mr. Barin Banerjee
Mr. Swapan Kr. Debnath
...for the K.M.C.
Mr. Hiranmoy Bhattacharya
Mr. Sanjay Mukherjee
...for the respondent nos.10 & 11
The petitioner assails an order of the Special Officer (Building) dated March 20, 2017 in the present writ petition.
Learned advocate for the petitioner submits that, the Special Officer (Building) exceeded his jurisdiction in allowing retention of the unauthorised construction.
Learned advocate appearing for the private respondents submits that, the deviations are minor in nature and can be allowed to be retained.
Similar submission is made on behalf of the corporation. Both of them question the maintainability of the writ petition on the ground that, the petitioner has statutory alternative remedy available under Section 400(3) of the Kolkata Municipal Corporation Act, 1980. The impugned order is appealable.
The writ petition is pending since 2017. Directions for affidavit were given on August 3, 2017 without keeping the point of maintainability of the writ petition open.
Be that as it may, notwithstanding the availability of a statutory alternative remedy, a writ petition is maintainable if the petitioner substantiates that, the z 2 impugned order is in breach of any fundamental right of the petitioner or the impugned order was passed by an authority without jurisdiction or impugned order is in breach of principles of natural justice.
In the present case, the Special Officer (Building) proceeded to allow retention of construction which was found to be in deviation from the sanctioned plan in all floors. The nature and extent of the deviation are not spelt out in the impugned order. To such extent, the impugned order is non-speaking. If the impugned order is unreasoned, then the same has to be considered as a nullity. The writ petition is maintainable of such ground alone.
In such circumstances, the impugned order is quashed. The Special Officer (Building) will dispose of the demolition proceedings from the stage of the issuance of the notice under Section 400(1) dated June 24, 2014 or from such other stage that he deems appropriate.
W.P. No.21637 (W) of 2017 is disposed of. No order as to costs.
Urgent certified Website copy of this order, if applied, be supplied to the parties, upon compliance of all requisite formalities.
(Debangsu Basak, J.)