Md. Ayub & Anr vs The Municipal Commissioner on 2 March, 2016

[Cites 8, Cited by 2]

Calcutta High Court (Appellete Side)

Md. Ayub & Anr vs The Municipal Commissioner on 2 March, 2016

The allegation of Ziauddin Ahmed appears to be that although an objection was filed by the Corporation alleging conversion of the car parking space into shops by the private respondents thereby changing the nature of use of the building in question from residential to commercial, as well as certain inauthorized construction raised by them, the Municipal Corporation did not take any step.

The Court while considering the said application observed that the Special Officer (Building), being the delegate of the Municipal Commissioner, had fixed a meeting at 12.30 p.m. on 9.8.2007 and accordingly the Special Officer (Building) was directed to consider the objection of the petitioners in accordance with law upon granting reasonable opportunity to hear to them as well as the private respondents in the hearing fixed on that day. The Special Officer (Building) was directed to pass a reasoned order in accordance with law upon hearing the 3 parties and on consideration of the evidence that might be adduced before him. The Special Officer (Building) in terms of the aforesaid orders has decided the matter giving rise to the present petition. The decision of the Special Officer (Building) was carried to the Municipal Tribunal and the said appeal was dismissed on 19.7.2010. Against the said order of the Tribunal, a review application was filed which was dismissed on 25.8.2015. The entire exercise was sought to be set at naught by relying upon a judgment of the Court that was rendered only on 2.12.2015 much after the Special Officer (Building) decided the matter in accordance with the order passed by His Lordship Hon'ble Justice Dipankar Datta on 9.8.2007. The petitioners who are now questioning the jurisdiction of the Special Officer (Building) had accepted that the Special Officer (Building) has the jurisdiction to decide the said issue. In any event the Special Officer (Building) becomes the persona designata to decide the said issue in terms of the order dated 9.8.2007. Moreover, it appears that by an earlier judgment of the Division Bench in re: Dilip Ranjan Chatterjee reported in 1992 (I) CHN 210 , the Division Bench was of the opinion that the Special Officer 4 (Building) would be competent to decide such matter as would be evident from the following observation:

" 2. Upon hearing the learned advocates, representing the different contesting parties as also the petitioner in person, we find that the Trial set aside the impugned order of Special Officer, upon a firm finding that the Special Officer, in view of the Municipal Act of 1980 having come into force, had not the jurisdiction to pass any order of demolition which he possessed only under the repealed Act of 1951. In arriving at the said finding, the Tribunal interpreted s. 48 of the Calcutta Municipal Corporation Act, 1980, which contained a specific provision for delegation of powers and functions. At this stage it is necessary to quote the s. 48 which runs as follows :

"Section 48 (1) The Corporation may, by resolution delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Mayor-in-Council. (2) The Mayor-in-Council may by order delegate, subject to such conditions as may be specified in the order, any of its powers or functions to the Mayor or to Municipal Commissioner. (3) Subject to such standing orders as may be made by the Mayor-in-Council in this behalf-

(a) The Mayor may be order delegate, subject to such condition as may be specified in the order, any of his powers or functions to the Deputy Mayor or the Municipal Commissioner.

(b) The Munic pal i Commissioner may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions to any other officer or any employee of the Corporation, and

(c) Any officer of the Corporation other than the Municipal Commissioner may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions to any other officer subordinate to him.

(4) Notwithstanding anything contained in this section the Mayor-in-Council, the Mayor, the Municipal Commissioner, or the other officer referred to in clause ( c) of sub-section (3), shall 5 not delegate-

(a) any of its or his powers or functions delegated to it or him under this section, or

(b) such of its or his powers or functions as my be prescribed."

3. In our view, the Tribunal went wrong in holding that in the absence of rules to be framed by the State Government under the new 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, as produced on behalf of the Municipal authority before the Tribunal on the strength of which, the impugned order of demolition had been passed by the Special Officer concerned, did not invest the Special Officer with necessary authority to pass such order. We say so because sub-s. (4) of s. 48 prohibits delegation of powers or functions as may be prescribed and 'prescribe' here in terms of the definition clause, to wit, s. (66) means prescribed by Rules made under this Act. Since no rule has been framed as yet, there is no specific prohibition in existence in terms of clause (b) of sub-s. (4) of s. 48 for delegation of the power to pass orders of demolition to the Special Officer by the Municipal Commissioner. This construction will also be borne out by the other provisions of the said s. 48. We must keep on record at this stage that there was no contention raised before the Tribunal challenging the validity otherwise of the order of delegation produced."

The said view was also approved by the Hon'ble Division Bench recently in Amalesh Adak & Anr -Vs- The Kolkata Municipal Corporation & Ors in GA No. 44 of 2016, GA No. 45 of 2016, APOT No. 8 of 2016 with WP No, 824 of 2014 delivered on 14.1.2016 as it could be seen from the following observation:

" Learned Senior Counsel Mr. Bhattacharya relied 6 upon an unreported decision dated 2.12.2015 of a learned Single Judge in Sushama Saha vs. Calcutta Municipal Corporation & Ors. in order to substantiate his argument with regard to delegation of powers and the learned Counsel appearing for the respondents/writ petitioners brought to our notice a reported judgment of the Division Bench in re: Dilip Ranjan Chatterjee, reported in 1992 (1) CHN 210, to contend that the unreported judgment of the Learned Single Judge does not hold good in view of the decision of the Division Bench on the very same point with reference to Section 48 of the Act.

We have gone through the decision of the Learned Single Judge and we have also gone through the earlier Division Bench judgment wherein it was clearly held that Sub-section (4) of Section 48 of the Act though prohibits delegation of the powers or functions as may be prescribed by Rules under Section 266 of the Act, since no rule has been framed as yet indicating specific prohibition in terms of clause (b) of Sub-Section (4) of Section 48 for delegation of powers to pass orders of demolition to the Special Officer by the Municipal Corporation, the Special Officer has to be held as having absolute and full authority to pass the orders demolition.

Here comes the argument of the learned Counsel for the appellants that in terms of Section 48 there is no proper delegation of powers and Special Officer being not an Officer under Section 14 of the Act, the very order of demolition by the Special Officer is nothing but non-est in the eye of law, therefore it cannot be executed and according to the learned Senior Counsel Mr. Bhattacharya, such issue that the order which is non-est in the eye of law will go to the root of the matter and if such order cannot be a legal order in terms of the provisions of the Act, the Court has to presume that there was no such order and hence the legality of the order of the Special Officer for want of authority to pass such order can always be challenged irrespective of the lapse of eight years since the appellant has acquired the right in the property along with the obligations and liabilities attached to the property. As already stated that the earlier owner having not challenged 7 the order, it is too late in the day for the present owner to challenge the said order of demolition. In the case referred to by the Learned Counsel for the respondents/writ petitioners, the Special Officer was appointed under the 1951 Act and the argument was in view of the Municipal Act of 1980 having come into force, the Special Officer had no jurisdiction to pass any order for want of authority. In that backdrop, the Bench held since section (b) of Sub-Section (4) of Section 48 empowers the Commissioner to delegate such of its power or his powers or functions, as may be prescribed, it takes into its fold the enlarged authority. Therefore, the Commissioner was entitled to delegate his powers to the Special Officer. So far as the Special Officer, on going through Section 17 of the Act, it is made clear that Special Officers or any other officers; post can be created, either permanent or temporary nature in the light of Section 17. In Susama Saha (supra) the order of the Special Officer had not become final and binding and the authority of the Special Officer was directly assailed by the petitioner in the said proceeding. In the present proceeding no challenge on such score had been thrown to the order which had merged in the appellate order of the Building Tribunal when the appeal preferred by the erstwhile owner was dismissed in 2007. In view of such merger and the fact such appellate order of the Tribunal had become final and binding on the parties there is no scope of reopening the issue at the behest of the appellant."

However, these issues are not required to be gone into at this stage as in my view, the petitioners are bound by the order dated 9.8.2007. The petitioners having participated in the said proceeding, it is not open to the petitioners to turn around at this stage and question the jurisdiction of the Special Officer (Building) on the basis 8 of a judgment that was rendered much subsequent to the orders of the Tribunal and after the said order has attained finality.

In view of this the revisional application stands dismissed.

There shall be no order as to costs.

( Soumen Sen, J.)

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Calcutta High Court (Appellete Side)