Calcutta High Court (Appellete Side)
Shrimati Anima Saha vs The Kolkata Municipal Corporation & Ors on 18 January, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 3457 of 2011
Shrimati Anima Saha
Versus
The Kolkata Municipal Corporation & ors.
For the petitioner : Mr. Sourav Sen , Advocate
For the opposite parties : Mr. Debjit Mukherjee, Advocate
Heard on : December 7 & 19, 2011
Judgment on : January 18, 2012
1.The petitioner was accused of raising unauthorized construction in deviation of the building plan, sanctioned by the Kolkata Municipal Corporation (hereafter the Corporation), thereby violating its building rules. The Special Officer (Building), the opposite party no.3, passed an order of demolition of such unauthorized construction (vide order dated April 7, 1987). The petitioner carried the order in appeal before the Municipal Building Tribunal (hereafter the tribunal). The tribunal by its order dated January 6, 2000 dismissed the appeal. It was recorded in the appellate order that the petitioner had admitted raising of unauthorized construction and had prayed for retention thereof. Not having found any infirmity in the order under challenge, the tribunal while upholding it directed the petitioner to comply therewith and demolish the unauthorized construction within 30 days failing which the Corporation would be at liberty to demolish the same at the petitioner's risk and costs.
2. On April 25, 2000, the petitioner applied for review of the order dated January 6, 2000 under Rule 19(5) read with Rule 24 of the Calcutta Municipal Corporation Tribunal (Conduct of Business) Rules, 1965 (hereafter the Rules) read with Order 47 Rule 1, Civil Procedure Code. The point that was sought to be raised by the petitioner in review was that the Special Officer lacked the authority to order demolition since he had not been delegated such power by the Municipal Commissioner, being the opposite party no.2; what was delegated, according to her, was the power of hearing the person responsible.
3. In support of such a contention, the petitioner placed before the tribunal an order dated June 28, 1991 of the self-same tribunal. It was held therein that Circular No. 9 of 1985-86 dated July 3, 1985 issued by the City Architect, notifying order dated July 3, 1985 of the Municipal Commissioner, delegated only the power to the Special Officer to hear the person responsible and the complainant in respect of alleged unauthorized construction and that the order of the Special Officer could only be considered as a tentative order recommending demolition but could not by itself be treated as an order of demolition authorizing the Corporation to proceed in that respect. It was claimed by the petitioner that the said order dated June 28, 1991 of the tribunal could be traced out after vigorous search subsequent to dismissal of her appeal by the tribunal and that since she had been able to discover new material which would have a bearing on the outcome of the appeal filed by her, the tribunal ought to review its order dated January 6, 2000 and reconsider her appeal.
4. The prayer for review made by the petitioner was considered by the tribunal. By its order dated September 5, 2011, it proceeded to reject such prayer on the ground that the petitioner had admitted raising construction which was not authorized and having prayed for retention thereof, she had no valid cause to question the jurisdiction of the Special Officer who passed the order of demolition. While disposing of the prayer for review, the tribunal once again directed the petitioner to comply with the order of the Special Officer dated April 7, 1987 and its order dated January 6, 2000 positively within 30 days, in default whereof the Corporation was granted liberty to demolish the unauthorized construction raised by the petitioner at her risk and costs.
5. This revisional application is directed against the said order dated September 5, 2011 passed by the tribunal.
6. Appearing in support of the application, Mr. Sen reiterated the argument that was advanced before the tribunal. According to him, the Special Officer assumed jurisdiction in terms of the order dated July 3, 1985 of the Municipal Commissioner and by virtue thereof, he had been empowered only to hear the person responsible accused of unauthorised construction under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 (hereafter the Act) and not vested with the authority to pass an order of demolition after such hearing and, therefore, the order dated July 7, 1987 being absolutely without jurisdiction, the tribunal erred in the exercise of its jurisdiction in refusing the petitioner's prayer for review.
7. Replying to a query of the Court as to whether in course of a quasi judicial enquiry, it is permissible for one officer to hear the party accused and for another officer to pass the final order on the proceedings that have been initiated, reference was made by Mr. Sen to the decision reported in (2010) 7 SCC 781 (Rasid Javed v. State of U.P.). The Supreme Court ruled therein as follows:
"51. That a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted. This settled principle has also been highlighted by this Court in Gullapalli Nageswara Rao, AIR 1959 SC 308, but based on such principle the limited authority of hearing given to the Hearing Authority by the State Government cannot be treated as enlarged in its scope. A delegatee must confine his activity within four corners of the powers invested in him and if he has acted beyond that, his action cannot have any legal sanction unless ratified by the delegator.
52. A distinction must be maintained where the Hearing Authority is empowered by the State Government to hear objections and approve the proposed modification or modify the approved scheme and a case where the Hearing Authority is authorised to hear the objections/representations relating to the proposed modification to the approved scheme. In the latter case, the authority delegated to the Hearing Authority is limited and he is not authorised to approve the proposed modification or modify the approved scheme. The present case falls in the latter category and accordingly the order of the Hearing Authority dated 11-10-1999 is in excess of the authority given to him and cannot be construed as a final order of approval under Section 102(1) of the 1988 Act. Whether such limited authority of hearing to the Hearing Authority makes any legal sense is an aspect for consideration by the State Government. Suffice it, however, to say that it was not open for the Hearing Authority to approve the proposed modification or modify the proposed scheme."
8. According to him, although divided responsibility is destructive of the concept of a judicial proceeding or even a quasi judicial proceeding, the cited decision affirms the position that a delegatee cannot act beyond the order of delegation and must confine himself within the four corners of the powers vested in him and, therefore, the observation of the tribunal in its order dated June 28, 1991 to the effect that the Special Officer could only hear the parties for recommending an order of demolition and that it is for the Municipal Commissioner to pass the final order, is proper and such order is sustainable in law.
9. Replying to a further query of the Court as to whether failure to bring to the notice of the tribunal its previous order dated June 28, 1991 while it was considering the appeal of the petitioner would constitute a new and important matter (not within the knowledge of the petitioner and hence could not have been produced after exercise of due diligence), the discovery of which would attract the provision of review or not, Mr. Sen referred to a decision of a learned Judge of this Court reported in AIR 1967 Calcutta 518 (Tinkari Sen & ors. v. Dulal Chandra Das & ors.), wherein it was held that overlooking a proposition of law well-settled and beyond controversy does furnish a very good ground for review. Relying on such observation, it was submitted that the order dated June 28, 1991 of the tribunal settled the position that the order of the Municipal Commissioner dated July 3, 1985 did not vest the Special Officer with any power to order demolition of an unauthorized construction and, therefore, such order, as and when produced before the tribunal, furnished a good ground for review.
10. Reliance was also placed by Mr. Sen on the decision reported in AIR (36) 1949 Federal Court 1006 (Sir Hari Sankar Pal and anr. v. Anath Nath Mitter and ors.), wherein it was held that omission on the part of the Court to consider the clear provision of Order 41 Rule 33 of the Code when the original judgment was passed, which appeared on the face of the judgment, constituted a sufficient ground analogous to those mentioned in Order 47 Rule 1 of the Code and, therefore, the Court was not incompetent to reconsider the matter after the judgment if it so desired.
11. He, accordingly, prayed for an order to set aside the impugned order of the tribunal as well as the order dismissing the appeal and for a direction on it to reconsider the appeal in the light of the order dated June 28, 1991.
12. The application has been opposed by Mr. Mukherjee, learned advocate for the opposite parties. He vehemently argued that the petitioner is guilty of raising unauthorized construction, which she herself admitted and prayed for retention, and cannot be permitted to raise technical pleas to overcome the situation in which she finds herself now. It was contended by him that in course of hearing of the appeal, no ground was raised by the petitioner that the Special Officer did not have the jurisdiction to decide and to order demolition and having submitted to his jurisdiction and not having raised the point of jurisdiction before the tribunal, she is estopped from raising such point in a proceeding for review.
13. Reference was made by Mr. Mukherjee to the order of the Municipal Commissioner dated July 3, 1985, since notified by the Chief Architect vide Circular No. 9 of 1985-86. According to him, not only has the Special Officer been delegated the power to conduct hearing in terms of provisions contained in Section 400(1) of the Act but he has also been empowered to order demolition since the power under Section 400(2) thereof has also been delegated to him. Thus, the contention raised by the petitioner that the Special Officer was not empowered to order demolition by way of delegation of power by the Municipal Commissioner is thoroughly misconceived.
14. That apart, relying on the decision of a learned Judge of the Madras High Court reported in AIR 1974 Madras 288 (The Corporation of Madras v. P.G. Arunachalam), Mr. Mukherjee contended that non-production of an earlier binding judgment at the time of disposal of the main proceeding is no ground for review.
15. Mr. Mukherjee also referred to the Bench decision of this Court reported in 1992 (1) CHN 210 (In re: Dilip Ranjan Chatterjee) for sustaining the order of delegation. It was held therein that the tribunal was wrong in holding that in the absence of order to be framed by the State Government under the Act, the right to delegate the authority of the Commissioner to his officers and employees remains inchoate and uncertain and accordingly, the order of delegation produced before the tribunal on the strength of which the impugned order had been passed did not invest the Special Officer with necessary authority to pass such order.
16. I have heard learned advocates for the parties. The only question that requires an answer from this Court on this application is, whether the tribunal was justified in rejecting the prayer of the petitioner for review of the order dated January 6, 2000 or not.
17. For deciding the above question, the width of the powers of the tribunal to review its own orders needs to be noted first. Although the order impugned in this application records that the petitioner applied for review under Rule 19(5) read with Rule 24 of the said Rules, Rule 19(5) does not even remotely suggest that the tribunal has the power of reviewing its own order. However, Rule 20 of the Rules provides that even after an order has been made by the tribunal, it has power to amend any defect or error in any order or proceeding in an appeal or make such order as may be necessary for the ends of justice or to prevent abuse of its process. Rule 24 lays down that in any matter not provided for in the Rules, the President of the tribunal may, if the occasion so requires, adopt for the time being such procedure as he seems fit and proper, which is not repugnant to the Code. In the light of above provisions, I am inclined to hold that the tribunal is invested with the power of review of its own order.
18. Next, comes the question as to whether a review of the order dated January 6, 2000 could be applied for based on the earlier order of the tribunal dated June 28, 1991.
19. I have perused the decision of the learned Judge in Tinkari Sen (supra). It reveals that the rule obtained on an application under Article 227 of the Constitution had been made absolute on June 17, 1966 in the absence of the learned counsel for the opposite party. Immediately thereafter, the learned senior counsel for the opposite party mentioned the rule and it was again set down for hearing on June 22, 1966 so that it could be heard in presence of both the parties. On June 22, 1966 also, the learned senior counsel who had mentioned the application for rehearing on June 17, 1966 and the junior counsel assisting him were not present and it was ordered that the judgment rendered on June 17, 1966 would stand. The judgment was also signed on June 22, 1966. An application for review and/or reconsideration followed at the instance of the opposite party, who had engaged a new counsel. Such new counsel had brought to the notice of the learned Judge that the judgement dated June 22, 1966 had been rendered overlooking a binding Special Bench decision of this Court directly on the point involved in the rule. His Lordship did not wink an eyelid to acknowledge that His Lordship had fallen in error, apparent on the face of the record, having regard to the decision of the Special Bench. It was in the special circumstances before the learned Judge (the opposite party was not represented on two occasions, the first time before the judgment was actually delivered and the second time the rule was set down for hearing on mentioning by the learned senior counsel) that His Lordship demonstrated His Lordship's magnanimity attributing the blame to himself of having overlooked a principle of law, settled by the Special Bench decision of this Court, and proceeded to grant the prayer for review. That is how the prayer for review was allowed.
20. On facts and in the circumstances of the present case, the decision in Tinkari Sen (supra) would have no application. The tribunal prior to dismissing the appeal of the petitioner duly heard her and considered the submissions raised on her behalf. If at all there was an earlier decision of the tribunal on the point, that could have operated as a precedent, it was the duty of the petitioner to bring it to the notice of the tribunal at the time of consideration of her appeal by it.
21. Even otherwise, merely because the earlier decision dated June 28, 1991 could not be placed before the tribunal in course of hearing of the appeal is not considered to be sufficient ground to review the order dated January 6, 2000. I quite agree with the decision in P.G. Arunachalam (supra), the decision of the Delhi High Court in Sanjeev Sarin and another v. Smt. Rita Wadhwa and ors. : (2002 AIHC 628) holding that Order 47 Rule 1 refers to evidence or other matters in the nature of evidence and not the legal authority that was not brought to the notice of the Court on the given date, and the Bench decision of the Jammu and Kashmir High Court in National Insurance Co. v. Sultan Asim and anr. : (2005 AIHC 1616), wherein it was held that a judgment rendered in ignorance of a binding decision of the Court cannot be said to be an error apparent on the face of the record nor can it be said to be discovery of new material. Failure of the petitioner, for whatever reason, to place the order dated June 28, 1991 did not afford her a ground to seek review.
22. The decision in Sir Hari Shankar Pal (supra) proceeds on non-
consideration of a statutory provision. Such non-consideration might render a judgment per incuriam and, therefore, if in an appropriate case the Court considers it just and proper to reconsider its earlier decision, nothing stands in the way since each and every step that advances the cause of justice is permissible to be taken by a Court having plenary jurisdiction. However, in the present case, I am not concerned with non- consideration of a statutory provision by the tribunal while it dismissed the appeal of the petitioner.
23. I could have stopped here and dismissed the application of the petitioner but having regard to the submissions made by Mr. Mukherjee on the effect of the statutory provisions vis-a-vis the order of delegation dated March 7, 1985, I wish to make certain observations in respect of legality and/or validity of the order dated June 28, 1991 passed by the Tribunal.
24. For this purpose, the provisions of Section 400 of the Act have to be noted.
For facility of reference, sub-sections (1) and (2) thereof are reproduced below:
"Section 400. Order of demolition and stoppage of buildings and works in certain cases and appeal:
(1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, The Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whole instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as The Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:
Provided further that where the erection or the execution has not been completed, The Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3).
(2) The Municipal Commissioner may make an order under sub-
section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the consolidated rate on lands and buildings."
25. Although the order of delegation confines the power of the Special Officer to conduct hearing under Section 400(1), it also delegates to such Special Officer the power under sub-section (2). Sub-section (2) does not suggest any hearing to be given to the party accused of raising unauthorized construction but stipulates that the Municipal Commissioner may make an order under sub-section (1), which speaks of an order of demolition, if the charge of unauthorized construction is found to be established notwithstanding that such unauthorized construction has been assessed for the purpose of levy of consolidated rate on lands and buildings. In giving its decision dated June 28, 1991, the tribunal appears to have overlooked the fact that the Special Officer was delegated the power exercisable by the Municipal Commissioner under sub-section (2) of Section 400 of the Act. The power of delegation, in my considered view, read in its entirety permitted the Special Officer not only to hear the party aggrieved by the unauthorized construction that might have been raised by the party accused of such unauthorized construction as well as the latter but even to pass the final order in the proceedings that may have been initiated on receipt of a complaint of the former or otherwise. The order of the tribunal dated June 28, 1991, therefore, does not interpret the contents of the order of delegation in the proper perspective and, therefore, cannot aid the petitioner in any manner whatsoever from saving the unauthorized construction raised by her from being demolished.
26. In view of the aforesaid interpretation of the order of delegation, the decision of the Supreme Court in Rasid Javed (supra) relied on by Mr. Sen does not advance the cause of the petitioner.
27. In the result, I find that the revisional application is devoid of merit. The same stands dismissed, without order for costs.
Urgent photostat certified copy of this judgment and order may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)