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1999 DIGILAW 216 (CAL)

Adam Ali Mondal v. Calcutta Municipal Corporation

1999-04-26

SAMARENDRA NATH BHATTACHARJEE, SATYABRATA SINHA

body1999
JUDGMENT Sinha, J. This appeal is directed against an order dated 2.4.98 passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the petition was dismissed in limini. 2. The fact of the matter is as follows :- The petitioner was an employee of the respondent No. 7. He resigned from his services on 29.5.1993. He was inducted as a tenant by his former employer which is a Charitable Trust. However, admittedly the respondent No. 7 had issued various letters to the Calcutta Municipal Corporation alleging that the petitioner had raised construction, blocking the passage without any plan sanctioned in that behalf. It was further alleged that despite removal of such construction, the petitioner herein had again raised such constructions. The said letters are dated 11.6.93, 8.8.93, 26.4.93, 21.6.96 and 29.5.96. The respondent No. 7 thereafter filed an application under Section 144 (2) of the Code of Criminal Procedure on 23.4.96 praying, inter alia, for an order not to allow the appellant to make any construction/encroaching on the open place on the ground floor at No. 61, Macleod Street, Calcutta-700 017. Allegedly, pursuant to an order dated 23.4.96 an enquiry was made by the Officer-in-Charge of Park Street Police Station and a report was submitted on 24.5.1996. 3. A suit was filed by the appellant which was marked as Title Suit No. 1524 of 1996 and the appellant herein obtained an order of status quo in respect of the said shop-room. As the respondent No. 7's representation was not being considered, a writ application was filed before this Court whereupon a learned Judge of this Court by an ardor dated 15.7.96 directed the Municipal Authorities to consider the representation whereupon an order of demolition was passed on 14.12.96. 4. The appellant preferred an appeal before the Municipal Building Tribunal but the said appeal was dismissed on 6.3.98. Questioning the said order, the appellant filed the writ application which, as noticed hereinbefore, has been dismissed in limini. 5. Mr. Sen, the learned Counsel appearing on behalf of the appellant has raised a number of contention in support of this appeal. The learned Counsel submitted that the concerned respondent has failed to answer the question raised before him by the appellant as to whether structures had been reconstructed by the respondent No. 7 or by his clients. 5. Mr. Sen, the learned Counsel appearing on behalf of the appellant has raised a number of contention in support of this appeal. The learned Counsel submitted that the concerned respondent has failed to answer the question raised before him by the appellant as to whether structures had been reconstructed by the respondent No. 7 or by his clients. It has been submitted that as the appellant became a tenant in the year 1993, the question of his raising structure did not arise. It has further been submitted that the appellant did not obtain a fair hearing. According to the learned Counsel the respondent also failed to take into consideration the report submitted in the proceedings under Section 144(2) of the Code of Criminal Procedure, from a perusal, whereof, it would appear that the appellant was occupying the premises in question as a bona fide tenant. 6. It was strenuously argued that according to the appellant, construction had been raised in the year 1964 and in that view of the matter a proceeding having not been initiated within a period of 12 years from the date of constitution the same was barred under the law of limitation. Reliance this connection has been placed on Section 414 (4) of the Calcutta Municipal Corporation Act, 1951. 7. Admittedly, the appellant except filling the rent receipts did not file any other document. Having gone through the decision of the Special Officer, Building, and the Municipal Tribunal we are of the opinion, that pure findings of fact have been recorded therein. 8. Sub-section (4) of Section 414 of Calcutta Municipal Corporation Act, 1951 reads thus:- “Notwithstanding anything contain in the foregoing sub-sections no action shall be taken under this section in respect of any erection, alteration, addition or other work executed more than twelve years before the issue of the notice under sub-section (1) : Provided that the onus of proving that the work was done more than twelve years previously shall lie on the person responsible.” 9. Although by reason of the aforementioned provision, a prohibition has been imposed that no action is required to be taken in respect of erection, alteration, addition or other work executed more than twelve years before the issue of the notice under sub-section (1), but the proviso appended thereto, makes the position clear that onus of proving that the work was done more than twelve years previously shall lie on the person responsible. 10. Evidently, the appellant having not adduced any evidence has failed to discharge the said onus. 11. The letters issued by the respondent No. 7 to the authorities of the Calcutta Municipal Corporation clearly show that such unauthorized construction had been attributed to the appellant. 12. Furthermore, in a case of this nature it is not for this Court to consider as to who had made the unauthorised construction. The fact remains that unauthorised construction have been made. The Special Officer having considered, the points raised by the appellant, directed him to demolish the impugned structure. 13. The Municipal Buildings Tribunal which is an independent authority framed three points for its decision which are as follows :- (1) Had the Special Officer (B) any authority to pass an order of demolition ? (2) Did the appellant construct the shop-room in question violating any of the building rules ? (3) Is the appellant entitled to retain the impugned unauthorised construction? 14. As regard point No. 1 keeping in view an order of delegation dated 30.4.96 issued in terms of Section 48(3)(b) of the Act, it had been found that the Special Officer had Properly been delegated with the power to pass an order under Section 400(1) of the Act. 15. As regard point Nos. 2 and 3, the Tribunal arrived at a finding that no material had been placed before it to show that the construction had been raised by the respondent No. 7 herein. The findings of fact arrived at by the learned Tribunal below, to the effect that the said structures had been raised is violation of Rules 51, 54, 56, 57 & 39 to 41 of Schedule XVI as also Section 357 of the Calcutta Municipal Corporation Act, 1980, are not disputed. 16. Mr. The findings of fact arrived at by the learned Tribunal below, to the effect that the said structures had been raised is violation of Rules 51, 54, 56, 57 & 39 to 41 of Schedule XVI as also Section 357 of the Calcutta Municipal Corporation Act, 1980, are not disputed. 16. Mr. Sen submitted that the entire order is based upon the precis prepared by the Inspector but it was for the appellant to question the correctness thereof either by appointing another person or by adducing independent evidence to show that the contents of the said precis are not correct. 17. The Tribunal below had also considered the question as to whether the appellant should be permitted to retain the construction but keeping in view the fact that such construction had been raised without any sanction and the same is in the heart of the crowded City of Calcutta and in an open space between to big buildings by infirming substantial building rules and as thereto the owner of the building has also raised objection, such a permission had not been granted. The Tribunal below had also considered the fact that the construction is being used for commercial purpose in a residential area and that too in spite of objection. 18. The writ Court, in our view, has rightly declined to exercise its discretion in the facts and circumstances of this case particularly in view of the fact that the findings of the statutory authorities including the Tribunal had not been and could not have assailed as perverse. If the appellant had not adduced any evidence he cannot take any advantage thereof. He cannot be permitted to rely upon the report made by the Officer-in-Charge of Park Street Police Station in a proceedings under Section 144(2) of the Code of Criminal Procedure. 19. In view of the findings of fact arrived at by the statutory authorities we do not find any infirmity, with the order passed by the learned trial Judge dismissing the applications of the appellant. For the reasons aforementioned the appeal is dismissed but in the facts and circumstances of this case, there will be no order as to costs. Bhattacharjee. J. : I agree.