Calcutta High Court
Jayanta Kumar Neogi vs Kolkata Municipal Corporation & Ors on 3 March, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WP 280 OF 2013
JAYANTA KUMAR NEOGI
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 3rd March, 2015.
Mr.Jishnu Chowdhury, Advocate
Mr.Arif Ali, Advocate
Mr.Shouveek Roy, Advocate
...for petitioners
Mr. Barin Banerjee, Advocate
Ms. Sima Chakraborty, Advocate
....for K.M.C.
Mr.Saikat Banerjee, Advocate
...for respondent 7.
The Court :- The writ petitioner complains that the Special Officer (Building) of the Kolkata Municipal Corporation after passing an order of demolition revisited the same and passed an order for retention. According to the writ petitioner, the Special Officer(Building) has no authority to do so.
It is contended on behalf of the writ petitioner that a Special Officer (Building) of the Kolkata Municipal Corp[oration has no power to review his order. Consequently, the second order passed by the Special Officer (Building) 2 dated January 30, 2013 is without jurisdiction. Reliance is placed on 2014 (4) CLT P.1 (Ghanashyam Das Vs. Kolkata Municipal Corporation) in support of the proposition that the Kolkata Municipal Authorities have no power to allow retention of any unauthorised construction under the provisions of the Kolkata Municipal Corporation Act, 1980.
The private respondents are represented. It is contended on behalf of the private respondents that Ghanashyam Das (Supra) has been appealed against and there has been an order of status quo passed by the Hon'ble Appeal Court. Reliance is placed on 2007(1) CLJ P.143 (The Kolkata Municipal Corporation & Ors. Vs. Halma Consultants Private Limited & Ors.) and it is submitted that the Division Bench in Halma Consultants Private Limited (supra) has held Section 414 of the Kolkata Municipal Corporation 1951 to be pari materia with Section 400 of the Kolkata Municipal Corporation Act, 1980.
It is also contended on behalf of the private respondents that a Special Officer has the power to reconsider his earlier decision and that for such purpose no law is required. Why the proceedings was reopened is a question which should be answered by the Corporation authorities. The locus standi of the writ petitioner to maintain the present writ petition has been questioned. It is submitted that the writ petitioner is not a party aggrieved. It is pointed out on behalf of the private respondents that the retention order has been acted upon and fees imposed by the retention order has since been paid. The pendency of two civil suits and the order of status quo passed as an interim order in such suits have been highlighted. It is contended that in the event an order of 3 demolition passed by the Special Officer (Building) at the first instance is upheld, the same would affect the order of status quo passed by the Civil Court. It is also contended on behalf of the private respondents that a Writ Court should not pass an order of demolition and in support of such contention reliance is placed on 1989(2)SCC P.495 (S.K.Sharma Versus Corporation of the City of Bangalore & Ors.).
It is contended that the writ petitioner has an alternative remedy by way of an appeal before the Building Tribunal and that the writ petitioner should be directed to avail of such remedy.
Learned Counsel appearing for the Corporation Authorities submit that a Special Officer (Building) dealing with a demolition proceedings has no power of review. He contends that a building is defined in Section 2(5) of the Kolkata Municipal Corporation Act, 1980 and that a building can be erected in terms of Sections 392 and 393 which requires a sanction plan. Any construction beyond sanction is not permitted and must be demolished in accordance with law. He next contends that reasons as to why the demolition proceedings was reopened by the Special Officer (Building) after disposal of the same will appear from the records and if he is allowed further time, he would endeavour to produce such records for the perusal of the Court.
In reply the learned Counsel for the writ petitioner contends that writ petitioner shares a common boundary wall with that of the building where illegal construction has been held to be made. In such circumstances the writ petitioner has locus to file the writ petition and is a person aggrieved by the order passed 4 by the Special Officer (Building) allowing retention after passing order for demolition. On the aspect of alternative remedy reliance is placed on 2008(10)SCC P. 110 (United Bank of India Versus Satyawati Tondon & Ors.).
I have considered the rival contention of the parties and the materials made available on record.
The writ petitioner enjoys a common boundary wall with that of the premises where the Special Officer (Building) at the first instance found unauthorised construction. The order impugned herein is an order passed by the Special Officer (Building) of retention of such unauthorised construction. Such order in my view could affect the right of the writ petitioner. In such circumstances, I find that the writ petitioner is a person aggrieved by the order passed by the Special Officer (Building) impugned herein and is, therefore, entitled to challenge the same.
The next question is of the existence of an alternative remedy. No doubt the order passed by the Special Officer (Building) allowing retention is appeallable before the Building Tribunal under the provisions of the Kolkata Municipal Corporation Act, 1980. Existence of alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution of India. In the circumstances, as noted in Satyawati Tondon (Supra) a Court exercising jurisdiction under Article 226 of the Constitution of India can interfere with an order passed by any authority.
In the facts of this case I find that the Special Officer (Building) had proceeded to consider a complaint of unauthorised construction at the premises 5 concerned on the basis of a complaint received by it. The Special Officer by his order dated December 14, 2012 found illegal construction and had proceeded to order demolition of the same. No law has been cited before me to demonstrate that the Special Officer (Building) has a power of review of his earlier order. The records of this case as disclosed in the pleadings before me demonstrate that the Special Officer (Building) reopened the same demolition case and passed an order of retention by the order impugned dated January 30, 2013. No law has been cited to show that the Special Officer (Building) is entitled to do so. The statute does not permit the Special Officer (Building) to review his own order. The Special Officer (Building), therefore, had acted without jurisdiction in reconsidering his own decision passed earlier.
The private respondents had paid retention fees on the basis of the order impugned passed by the Special Officer (Building). Such payment does not clothe the order of retention passed by the Special Officer (Building) with any legality.
Learned Counsel for the private respondents presses Halma Consultants Private Limited (Supra) in support of the contention that the municipal authorities are entitled to pass an order of retention. Halma Consultants Private Limited Proceeds on the basis of ILR 1997(1) CAL 615 (W.O. Brothers Versus Commissioner Corporation of Kolkata). It is on the basis of Section 414 of the Calcutta Municipal Corporation Act, 1951. Although Section 414 of the Calcutta Municipal Corporation Act 1951 has been held to be pari materia with Section 400 of the Kolkata Municipal Corporation Act, 1980. In my 6 view the ratio of Halma Consultants Private Limited (Supra) has no manner of application in the facts of this case as the order of retention passed by the Special Officer (Building) is without jurisdiction The facts of the case demonstrate that the Special Officer (Building) had revisited his order. He has no power to do so. In such circumstances, in my view, the ratio of Halma Consultants and Ghanashyam Das has no application to the facts of this case.
In such circumstances, I set aside the order of the Special Officer (Building) impugned before me dated January 30, 2013.
WP No. 280 of 2013 is allowed. No order as to costs.
(DEBANGSU BASAK, J.) ►GH/sg.