Calcutta High Court (Appellete Side)
(Gouri Chatterjee & Anr vs The Municipal Commissioner on 21 July, 2015
1
1.7.2015
l.no. 1
CO 132 of 2011
(Gouri Chatterjee & Anr. -vs- The Municipal Commissioner, Kolkata Municipal Corporation & Ors.
Mr. Barin Banerjee
Ms. Sima Chakraborty...for the petitioners
Mr. Ashok Kumar Banerjee, Senior Advocate
Mr. Sourav Choudhuri ....for the K.M.C.
Mr. Asish Bagchi
Mr. Murali Mohan Roy ...for the respondent nos.4-11
Mr. Barin Banerjee, learned advocate for the petitioners is present. Mr. Ashok Kumar Banerjee, learned senior advocate appears to represent the Kolkata Municipal Corporation in compliance of the order dated 14th July, 2015. Mr. Asish Bagchi, learned advocate appears for the opposite party nos. 4 to 11.
On earlier occasion Mr. Barin Banerjee, learned advocate for the petitioners was heard at length. Heard Mr. Ashok Kumar Banerjee, learned senior advocate for the Kolkata Municipal Corporation.
Mr. Ashok Kumar Banerjee inviting my attention to the order passed by this Court in revisional application, being CO 1962 of 2007 and the impugned order of the Tribunal, apprised that the learned Tribunal while disposing of the matter did not commit any illegality, since the learned Tribunal taking care of the jurisdictional point on the basis of available circulars issued from the Kolkata Municipal Corporation, passed the impugned order. Submitted that the petitioners having taken a new plea on the point of jurisdiction of the Special Officer (Building) and the same point having not been agitated even before the Tribunal, rather in the grounds of appeal taken the judicial act and action of the Tribunal unnecessarily having been criticized, the instant proceeding should be dismissed by upholding the order of the Tribunal.
Mr. Barin Banerjee argued that the Tribunal did not take care of the observations of this Court in determining the jurisdiction of the Special Officer (Building) while passing the order of demolition and according to him, under Sub- Section 3(b) of Section 48 of the Kolkata Municipal Corporation Act, 1980, the Special Officer (Building) being neither "any other officer nor employee of the Corporation" cannot be delegated by the Municipal Commissioner to act under section 400 of the said Act. Exception has been taken by Mr. Barin Banerjee that the Kolkata Municipal Corporation before the Tribunal, instead of presenting the relevant circulars, simply had filed the office note on the basis of which the Tribunal had acted upon and the said office note is annexed as annexure P-5 to the revisional application. Lastly it is 2 submitted that let the matter be sent back on remand before the Tribunal for passing fresh order by determining the point of jurisdiction, as already directed with the observations by this Court in the earlier revisional application, being CO 1962 of 2007.
During the course of hearing and presumably in compliance of the order dated 14th July, 2015 passed by this Court, Mr. Banerjee, learned senior advocate for the Kolkata Municipal Corporation has submitted copies of circular no. 9 of 1985-1986 dated 3rd July, 1985 and circular no. 24 of 2006-2007 dated 6th March, 2007, which are kept on record.
Going through the order of this Court passed in CO 1962 of 2007, I refresh myself that there was sufficient indication, so that at the time of disposal of the application, the Tribunal ought to have discharged the bounden duty by considering whether the Special Officer (Building) acted under the Kolkata Municipal Corporation Act, had the jurisdiction to pass the order of demolition or alternatively, whether under Sub-section 3(b) of Section 48 of the said Act the Special Officer can be designated as "any other officer or any employee" of the Corporation or not. The Court though made vivid observation in the C.O. (supra) to act as an eye opener to the Tribunal presumably due to the reason that the question of jurisdiction touches the very root of the subject but without giving any direction whatsoever, simply set aside the impugned order dated 25th April, 2007 by giving liberty to the petitioner to approach the learned Municipal Building Tribunal for re-hearing the matter afresh and the learned Municipal Building Tribunal upon hearing the parties passed the impugned order dated 17th September, 2010 in appeal no. 67 of 2003.
Although in the face of annexure P-5, learned advocate for the petitioners had taken exception that instead of production of relevant rule or circular, copies of office notes were simply placed before the Tribunal, but I find from the impugned order of the Tribunal that the learned Tribunal has considered the circulars and not the office notes and found that on the basis of two circulars no. 9 of 1985-1986 dated 3rd July, 1985 and 24 of 2006-2007 dated 6th March, 2007, the Special Officer (Building) has been delegated by the Municipal Commissioner to deal with the matter under Section 400(1) /416 of the Kolkata Municipal Corporation Act for passing necessary order. While those copies of circulars have been referred to within the body of the impugned order of the Tribunal and copies of those circulars are made available on record on this day giving opportunity to the Court to look into the same and while the delegation in favour of the Special Officer (Building) is found well, then the exception, as ventilated by Mr. Barin Banerjee may be ignored. On the contrary, while within the impugned order there is reference of those two circulars issued in succession 3 delegating several powers in favour of several officers and employees of the Kolkata Municipal Corporation including the Special Officer (Building) and since up till now there is no authority before us to caption any of those two circulars issued by the Municipal Commissioner as ultra vires, the act and action done by the Special Officer did not become without jurisdiction. It is pertinent to mention that the circulars (supra) have been referred to in the body of the impugned order of the learned Tribunal. The petitioner in the face of those references now cannot pretend ignorance of existence of those circulars specially in the present environment where the Right to Information Act is very much actively alive. The petitioner although has challenged only the impugned order once again but did not perhaps take any legal step to caption either of the circulars as ultra vires. Therefore, having been done so, this Court within the present jurisdiction has to accept and rely upon those circulars issued in succession to lend support to the impugned order in one aspect, since so far I find no injustice or illegality in the matter of decision making process.
Now, the second part arose to give answer as to whether the Special Officer comes within the definition of "any other officer or any employee of the Corporation" or not, as requires under Sub-section 3(b) of Section 48 of the said Act.
It is apparent that since no specific rule has been framed as yet, there is no specific observation for delegation of the power to pass order of demolition to the Special Officer by the Municipal Commissioner. The Division Bench of this Court in CO 1876 of 1991 (In re: Dilip Ranjan Chatterjee) reported in 1992 (1) CHN 210 has held that the Special Officer was fully authorized to pass the order of demolition. It is redundant to mention that the circulars under reference have been issued much after the order passed on 5th December, 1991 in CO 1876 of 1991 (supra). Therefore, the Special Officer is held very much as an officer or an employee of the Corporation in whose favour power can be very much delegated by the Municipal Commissioner to act under Section 400(1) or any other section of the said Act, as the circumstance so demands.
In view of such observations made on the basis of materials on record, as I have no hesitation to hold that the point of jurisdiction, as was indicated by this Court earlier, has been well attended by the Tribunal consciously during formulation of the impugned order and while the order of demolition passed by the Special Officer (Building) is noticed to be under due delegation of the Municipal Commissioner based on the circulars in succession and the Special Officer being one of the other officers or employees within the ambit of Section 48(3)(b) of the Act, has passed the order of 4 demolition, this revisional application stands dismissed and the impugned order dated 17th September, 2010 passed by the learned Municipal Building Tribunal in B.T. Appeal no. 67 of 2003 is upheld. The interim order of stay of all further proceedings in respect of the appeal, if any, passed by this Court, is hereby vacated with a direction to the learned Municipal Building Tribunal to proceed with the appeal, being B.T. Appeal no. 67 of 2003 for its disposal as expeditiously as possible without being influenced or swayed by any observation made above by this Court.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties on priority basis.
(Mir Dara Sheko, J.)