Calcutta High Court (Appellete Side)
Akd Bipul Chandra Das vs The Commissioner Of Howrah Municipal on 26 July, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
08 26.07.17 W.P. 30046 (W) of 2016
Ct No. 2
akd Bipul Chandra Das
Vs.
The Commissioner of Howrah Municipal
Corporation & Ors.
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Mr. Subhrangshu Panda, Mr. Debarshi Brahma.
... for the petitioner.
Mr. N. C. Behani, Ms. Papiya Banerjee (Behani), Ms. Srijoni Chongdar.
... for the H.M.C. The challenge is made to an order of demolition dated 18th November, 2016 passed by the Assistant Engineer, Borough - I, Howrah Municipal Corporation on the premise that the same is an outcome of violation of the principles of natural justice.
It appears that the proceeding was initiated as far back as in the year 2015. The Corporation served several notices upon the petitioner not to continue with the construction work without the sanction or permission.
A proceeding was initiated under Section 177 (1) of the Howrah Municipal Corporation Act, which empowers the Commissioner to make an order directing such erection of work to be stopped or demolished by the person, on whose instance the erection of work has commenced.
The proviso added to the said provision makes it clear that the authority shall not pass an order under the enabling provision without affording a reasonable opportunity of hearing to the person responsible for such construction.
The records produced by the Corporation does not reveal that the Commissioner or his delegatee gave an opportunity of hearing to the petitioner before passing an order of demolition under Sub-section 1 thereof.
2There is an apparent violation of the proviso to Sub-section 1 of Section 177 of the Act and, therefore, this Court have no hesitation but to quash and set aside the impugned order, being Memo No. 1695/AE/B-1/16-17 dated 18th November, 2016.
The Commissioner or his delegatee is directed to give an opportunity of hearing to the petitioner by fixing a date, which shall not be later than 10 days from the date of the communication of this order and thereafter shall proceed to dispose of the proceeding within four weeks therefrom in accordance with law.
It goes without saying that any observations recorded hereinabove shall not have any persuasive effect on the merit or demerit of the said proceeding, which shall be decided independently by the competent authority.
The writ petition is thus disposed of. There will be no order as to costs.
(HARISH TANDON, J.)