Calcutta High Court (Appellete Side)
Smt. Jyotsna Das vs The Howrah Municipal Corporation & Ors on 3 December, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1
4 03.12. W.P. No.11634 (W) of 2019
ns 2019
Smt. Jyotsna Das.
Versus
The Howrah Municipal Corporation & Ors.
Mr. Srijib Chakraborty,
Mr. Tanmoy Mukherjee ... For petitioner.
Mr. Ankit Sureka,
Mr. N. C. Bihani,
Ms. Papiya Banerjee Bihani ..... For HMC.
Mr. B. P. Mondal,
Mr. Sukanta Mondal,
Mr. Debabrata Ray ... for respondent no.5.
This writ petition has been listed under heading "To Be Mentioned" at instance of petitioner.
Mr. Chakraborty, learned advocate appears on behalf of petitioner and submits, interim order expired on 30th November, 2019, which is why urgency and mention. Mr. Sureka, learned advocate appears on behalf of Howrah Municipal Corporation and does not object to this writ petition being dealt with at this stage.
Mr. Chakraborty submits, interim order dated 8th July, 2019 was passed restraining the Corporation from proceeding to demolish on order of demolition 2 signed on 17th June, 2019, by Executive Engineer (Building Department). Point taken was that only Commissioner had power to order demolition as in section 177 of Howrah Municipal Corporation Act, 1980. Mr. Sureka submits, section 28 empowers the delegation. The power to order demolition is a power of Commissioner that can be delegated and was delegated. He relies on annexure "B" in his client's supplementary affidavit, which is Memo dated 14th December, 2018 carrying order of Commissioner and Administrator of the Corporation. He relies on following in the order:-
"Approval for issuance of Self-demolition Notice to the offender in case of illegal construction of any kind will be accorded by the In charge Br. Officer (A.E./ E.E.) of the concerned Borough Office following the provisions of law. Further course of action in case of such offense will be dealt strictly in accordance with the provisions of the HMC Act, 1980 and directions already communicated in this regard."
Mr. Chakraborty responds by drawing attention to the demolition order. He submits, it was
issued by Executive Engineer (Building Department) and 3 not the delegatee by said order, being in-charge Borough Officer (A.E. / E.E.) of concerned borough office. To this Mr. Sureka says, issuing officer was in-charge of all boroughs since the Corporation is being run by Administrator.
Said order dated 14th December, 2018 directing delegation was passed in a situation where Administrator was in control of the Corporation. The order says, it is issued in public interest and will remain effective till the borough committee takes over charge after election to be held or until further order or whichever is earlier. It goes in favour of petitioner if in a situation of there being no borough committees, there is delegation to in-charge borough office.
On this ground alone, challenge to the demolition order succeeds and it is set aside.
The writ petition is disposed of.
(Arindam Sinha, J.)