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2003 DIGILAW 289 (CAL)

Sk. Yusuf Hossain v. Burdwan Municipality

2003-06-13

KALYAN JYOTI SENGUPTA

body2003
Judgment This writ petition is directed against an order said to have been passed by the Chairman, Burdwan Municipality on 22nd August, 2002, which was done pursuant to the order of this Court passed by His Lordship Justice Bhaskar Bhattacharya on 18th July, 2002 on a writ petition filed by the petitioner being No. W.P. 9687 (W)/2002. The short narration of the fact is required to be made in order to understand the case in a better way. The petitioner applied for a sanction of a building plan to the Municipality on 9th August, 2000 and this will appear from a document being P2, a letter of the Vice-Chairman dated 11th June, 2002. It was the grievance of the petitioner that in spite of submission of the plan and in spite of statutory period of 60 days having been allowed to be expired the Municipal authority did not either sanction to the building plan nor refused it. However, the refusal came in after expiry of that statutory period, namely almost after 2 years from the date of submission of the building plan. 2. Being aggrieved with the aforesaid action the petitioner came to this Court on earlier occasion and Justice Bhaskar Bhattacharya was pleased to pass the order as quoted above and the text whereof is set out hereunder:- "I therefore, dispose of this application by directing the Chairman, Burdwan Municipality to treat the instant writ application as the representation of the petitioner and to pass a reasoned order after giving an opportunity of hearing to the petitioner. If the Chairman comes to the conclusion that there is really some defects for which no sanction can be granted, in such case, the said respondent must specify the defects of the petitioner in such reasoned order. Let such representation be disposed of within one month and such decision must be communicated to the petitioner within one week thereafter. Thus, Annexure P-2 and P-4 to the instant writ application are quashed. The petitioner is directed to communicate this order to the Chairman, Burdwan Municipality along with a copy of the writ application. 3. Pursuant to the aforesaid order the present impugned order is said to have been passed. Thus, Annexure P-2 and P-4 to the instant writ application are quashed. The petitioner is directed to communicate this order to the Chairman, Burdwan Municipality along with a copy of the writ application. 3. Pursuant to the aforesaid order the present impugned order is said to have been passed. The learned lawyer for the petitioner apart from other grievance has raised fundamental objection drawing my attention to the averments made in Paragraphs 21 and 22 of the petition that in terms of the aforesaid order the Chairman himself was obliged to hear this matter. However, the matter was not heard out by him, rather it was done by the Law Officer and some other Engineers. I have examined the averments made in the Paragraphs 21 and 22 and such allegations have been made specifically. He contends that, therefore, the order has not been passed lawfully as it was desired to be done by this Court. I accept his submission that the matter should be or should have been heard by the Chairman alone and none else. It is settled position of the law, if anything is to be done under the law under one way the same shall be done in that way, not otherwise. Therefore, I examined the version on factual aspect of the respondent as to who has heard out this matter. Affidavit-in-Opposition has been filed by the respondents and the same has been affirmed by one Tanmoy Tah being the Law Officer of the Burdwan Municipality. He has dealt with Paragraphs 21 and 22 of the petition in Paragraphs 10 and 11, which are set out hereunder:- "10-With regard to the statements made in Paragraph 21 of the application, I say that the Law Officer and the Engineer were present at the time of hearing because the Engineer of the Municipality concerned had a far knowledge regarding construction and planning and the Law Officer also acquainted with the legal issues relating to the construction of the building as well as the Municipal Act. Naturally, they were authorised by the Chairman to attend the meeting and to report before him. After all, the Chairman considered the matter at length and passed an order with the following observations: 1. That parking space is inadequate for flats .and commercial projects and be kept separately. 2. That open space shown in the proposed plan is not at per with the rules. After all, the Chairman considered the matter at length and passed an order with the following observations: 1. That parking space is inadequate for flats .and commercial projects and be kept separately. 2. That open space shown in the proposed plan is not at per with the rules. 3. That more than one stair is required for emergency purpose in the multi block (plot) buildings with commercial project. 4. That swearage connection, water connections and drains are not shown clearly in the proposed plan. 5. Cantilever shown in the proposed plan is not permissible, within the minimum space on all side. 6. That you have neither scored any permission for such commercial project not clearly mentioned about the nature of trade. I would crave before the Hon'ble Court to make several statements regarding the same at the time of hearing of the application. 11 - With regard to the statements made in Paragraphs 22 to 24 of the application, save and except what are matters of record and what have specifically been admitted herein I deny and dispute each and every allegation. I would repeat and reiterate the statements made hereinabove and also crave leave before the Hon'ble Court to make further submission & regarding the same at the time of hearing of the application." 4. That apart he has stated in Paragraph 17 in the manner as follows:- "17-With regard to the statements made in Paragraph 33 of the application, I say that the Chairman was present at the time of hearing of the application and subsequently, he authorised two technical persons regarding the issue i.e. the Law Officer and the Engineer of the Municipality to conduct the proceedings because they were the competent persons to deal with this matter. After all, an Engineer of the Municipality is more competent than the Chairman of a Municipality if he does not possess any Engineering Degree or knowhow the building plan etc. Naturally, in consultation with the Law Officer and the Engineer of the Municipality, the Chairman passed an order on the justified reason rejecting the building plan submitted by the petitioner. It may not be out of place to mention herein that the Chairman also requested the petitioner to submit a further plan according to the norms." 5. The learned Lawyer for the respondent has tried to justify the aforesaid statement and averment of the Law Officer. It may not be out of place to mention herein that the Chairman also requested the petitioner to submit a further plan according to the norms." 5. The learned Lawyer for the respondent has tried to justify the aforesaid statement and averment of the Law Officer. He says that in the fitness of the situation and taking into practical aspect of this matter the Chairman and the Law Officer thought it fit that it should be dealt with by a technical man, so Engineer and Law Officer were authorised to hear this matter. He further adds that the Chairman himself is a Primary School Teacher, and when I was dictating this judgment he has changed his mind and says that he is not sure that he is Primary School Teacher but he has heard it. In my view, such a statement should not be made by a learned Lawyer without taking definite and correct instruction from the client concerned before the Court of law. Such a changed and deviating submission really cues not help the Court rather confuse the Court. Therefore, it is very difficult to take assistance of such submission. So I shall go by the records. 6. From the averments made in the aforesaid paragraphs of the affidavit-in-opposition there is no doubt in my mind whatever may be the pious intention and wishes of the Chairman and respondent for sub-serving the ends of justice, but then they have committed such an act which is nothing short of contumacious act. This Court desired that the Chairman was to hear out this matter and he was not given any authority to delegate such power to anybody else. From the statement and averment, it appears that there is an unequivocal admission on the part of the Law Officer that the hearing was done by some other person upon delegation by the Chairman. I am amazed to see how a Law Officer could make a statement that it was decided that the Engineer and the Law Officer are the competent and fit persons to hear when the Court decided the Chairman alone is competent. 7. Factually Chairman may not be competent to decide a technical aspect but that is neither here nor there. If there is any difficulty then the respondent authorities should have approached before His Lordship Justice Bhattacharya for clarification and modification of His Lordship's order. 7. Factually Chairman may not be competent to decide a technical aspect but that is neither here nor there. If there is any difficulty then the respondent authorities should have approached before His Lordship Justice Bhattacharya for clarification and modification of His Lordship's order. Without having done none else took a decision contrary to the Court's decision. Therefore, I am of the view, the impugned order has not been passed by the Chairman, rather he has lent his signature in the impugned order. This order is set aside, accordingly, on that ground alone. 8. Thus, this application succeeds with costs which assessed at 200 Gms to be paid by the Municipal authorised to the petitioner within a period of three weeks from the date of communication of this order. 9. The matter shall be heard afresh in accordance with the wishes and desires of His Lordship Justice Bhattacharya. When there be any difficulty it would be open for the parties to take appropriate steps in accordance with law. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously.