Calcutta High Court (Appellete Side)
(Disposed Of) vs Kolkata Municipal Corporation & Ors on 26 October, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
26.10.2017 WP 14942 (W) of 2017
Court No. 02
Item No. SL-24
snandy
Ashim Chakraborty
(DISPOSED OF)
Vs.
Kolkata Municipal Corporation & Ors.
Mr. Kallol Basu, Advocate
Mr. Bratin Kumar Dey, Advocate
Mr. Samir Sarkar, Advocate
Mr. Santanu Saha, Advocate
......for the Petitioner
Mr. Alok Ghosh, Advocate
Mr. Gopal Chandra Das, Advocate
Mr. Rudranil De, Advocate
......for the KMC
Mr. Jahar Lal De, Advocate
Mr. Sajal Kumar Pandit, Advocate
......for the State
Mr. Siva Prasad Ghose, Advocate
Mr. Rohit Kumar Shaw, Advocate
......for the Respondent No. 9
The order of demolition dated May 2, 2017 passed by the Special Officer (Building) of Kolkata Municipal Corporation (KMC) is the subject matter of challenge in the instant writ-petition.
Prior to the instant writ-petition, another writ- petition was filed by one Latika Datta, the respondent no. 9 herein, being WP 10929 (W) of 2016 for a direction upon the corporation to initiate a proceeding against the petitioner who was allegedly making an unauthorized and illegal construction. The said writ- petition was dismissed with categorical observation that the entire dispute is of civil nature as it pertain to an encroachment of the portion allegedly possessed by the said respondent. The said order was carried to an appellate court in MAT 165 of 2017, which was dismissed on March 22, 2017. Subsequently, another writ-petition being WP 8710 (W) of 2017 was filed by the private respondent before this court for identical relief. It has been categorically observed in the order disposing of the second writ-petition that 2 once the court has held the dispute to be of civil nature, more particularly, dispute pertaining to encroachment, it cannot be reopened in the subsequent proceeding. However, the corporation informed the court that a proceeding had already been initiated against the petitioner and in view of the above, direction was passed upon the corporation to dispose of the said proceeding within a time frame.
The impugned order is the result of the said direction.
I am not oblivion of the fact that the order passed by the Special Officer under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 is appealable one. Ordinarily the High Court should refrain from interfering with the order amenable to be challenged before the statutory appellate forum but such rule is not rigid. There are certain exceptions to the said rule and one of such exceptions is when the authority proceeded to pass an order in gross violation of the principle of natural justice. On an identical factual matrix, this court in case of Laddu Gopal Bajoria & Anr. Vs. Kolkata Municipal Corporation & Ors. reported in (2006) 4 CHN 136 held:-
48. When the petitioners in such a situation, prayed for certified copy of the said precis for ascertaining the exact complaint which the petitioners were required to meet in the said proceeding, the concerned authority ought not to have concluded the hearing of the said proceeding without supplying the certified copy of the precis which was prepared by the Municipal authority in connection with the said proceeding.
49. On perusal of the notice under Section 400(1) of the said Act, this Court holds that the said notice is a vague one, as it does not specify the construction in 3 respect of which such proceeding was initiated. Supply of two different precis which does not tally with each other, further clouded the proceeding.
50. That apart, this Court agrees with Mr. Sen that the sanctioned plan is the basic document which should have been considered by the Special Officer before passing the order of demolition. Without considering the sanctioned plan, the concerned authority cannot come to the conclusion as to whether such construction was without any sanction or in deviation of the sanctioned plan. No doubt the certified copy of the assessment register for the relevant period as well as the inspection report of the authorities under the Urban Land Ceiling Act are the vital documents from which the legality of the impugned construction can be ascertained even in the absence of the sanctioned plan, but still then this Court holds that before coming to the conclusion regarding the legality of the said construction by relying upon the said documents, the certified copies thereof should have been supplied to the petitioners for enabling them to contest the said proceeding effectively.
51. Certified copy of the sanctioned plan was applied for by the petitioners in December, 2005. Direction was also passed by the concerned authority for supply of the certified copy of the said sanctioned plan to the petitioners. The petitioners deposited the requisite fees thereafter. But still then, the certified copy of the sanctioned plan was not supplied to the petitioners, though certified copy of the said sanctioned plan was given to the private respondents on 15th March. 2006.
52. Non-supply of the said certified copy of those documents to the petitioners, in my view, caused fatal to the proceeding, as the petitioners were deprived of a reasonable opportunity of contesting the said proceeding due to non-supply of the certified copies of the documents.
53. Thus, this Court holds that the principles of natural justice has been grossly violated in the instant case. By relying upon the principles laid down in Whirlpool 4 Corporation v. Registrar of Trade Marks, Mumbai and Ors. (supra), this Court holds that interference under Article 226 of the Constitution of India is necessary in this case, Since the resultant prejudice as a consequence of non-supply of the certified copies of those documents has been demonstrated in the instant case, the submission of Mr. Ghosh cannot be accepted.
Admittedly, the petitioner applied to the Special Officer (Building) for supply of Precis and the Demolition Sketch Plan which are the foundational documents in the proceeding under Section 400(1) of the said Act. The non-supply of relevant documents which the authority intended to rely on or in fact relied upon, offends the principle of natural justice. In such situation, the petitioner would suffer an order without being aware of the documents used and operated against him. In view of the coordinate bench's decision in Laddu Gopal Bajoria (supra) the supply of precis as well as demolition sketch plan are mandatory and any attempt to conceal the said foundational documents would result in setting aside the said decision. Surprisingly, the prayer for supply of precis and demolition sketch plan is rejected by an Administrative Officer of the corporation as the case is under process.
As indicated above, the application was made before the Special Officer (Building) and, therefore, the Administrative Officer ought not to have shouldered the responsibility of rejecting the prayer but should have placed the matter before the Special Officer (Building) for an appropriate order. The copy is to be supplied by an Administrative Officer. He cannot usurp the jurisdiction of the Special Officer (Building) and proceeded to take a decision when the proceeding under Section 400(1) of the Act was 5 pending. Even the Special Officer (Building) without ascertaining whether the copy of the precis and demolition sketch plan are supplied to the petitioner or not, proceeded lopsided and passed the order of demolition of the impugned unauthorized construction as shown in the aforesaid documents.
The manner in which the proceeding has been conducted by the Special Officer (Building) of the Corporation, this court cannot extend its blessings to the ultimate decision.
The order impugned is thus set aside.
The Special Officer (Building) is directed to supply a copy of the precis and demolition sketch plan as well as the report of the inspecting officer, if there be any, to the petitioner within a week from the date of communication of this order.
After supply of the aforesaid documents, an opportunity shall be given to the petitioner to controvert the statements made therein and thereafter the Special Officer (Building) shall proceed with the said proceeding in accordance with law and shall see that the same is brought to its logical conclusion within four weeks therefrom.
The writ-petition is thus disposed of. No order as to costs.
(Harish Tandon, J.) 6