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2006 DIGILAW 663 (CAL)

SANJAY MEHTA v. KOLKATA MUNICIPAL CORPORATION

2006-10-18

JYOTIRMAY BHATTACHARYA

body2006
Jyotirmay Bhattacharya ( 1 ) THE petitioners who are the tenants of premises No. B/113/h/16/1, Bipin behari Ganguly Street, Kolkata-700 012 filed this writ petition, inter alia, praying for issuance of a writ in the nature of mandamus commanding the respondents, their servants, agents or employees not to take any step or further steps affecting in any way or manner the possession and enjoyment of the petitioners' respective holdings and structures in the said premises. ( 2 ) IN this wril petition, the petitioners have made a complaint against the municipal Authorities of the Kolkata municipal Corporation, as they are taking steps to demolish the building standing at the said premises without service of any notice regarding initiation of any demolition proceeding upon the petitioners. ( 3 ) THE legality of the order of demolition, has been challenged by the petitioners primarily on the ground of non-service of notice of hearing upon the petitioners. The petitioners allege that the Municipal Authority has not adhered to the mandatory provision regarding service of notice upon the petitioners for showing cause, before passing an order of demolition. The first proviso to Section 400 (1) of the Kolkata Municipal Corporation act, 1980 gives a mandate to the municipal Authority to serve a notice to show-cause even upon the occupier of the building before passing an order of demolition. The petitioners, thus, claim that the demolition order, cannot be sustained in law due to non-compliance of the mandatory provision of Section 400 (1) of the said Act relating to service of notice to show-cause upon the petitioners. ( 4 ) MR. Ghosh, learned Advocate, appearing for the Municipal Authority, raised a preliminary objection regarding the locus of the petitioners to maintain this writ petition. Mr. Ghosh submitted that since the petitioners are neither the owners nor the occupiers nor the persons responsible for such unauthorised construction, they cannot claim any right of hearing in connection with the demolition proceeding. By referring to the explanation added to sub-section (1)of Section 400 of the Kolkata Municipal Corporation Act, 1980, Mr. Ghosh submitted that it is only the owner, occupier or any other person who is responsible for such unauthorised construction, gets an opportunity of hearing before passing of any order of demolition. ( 5 ) MR. By referring to the explanation added to sub-section (1)of Section 400 of the Kolkata Municipal Corporation Act, 1980, Mr. Ghosh submitted that it is only the owner, occupier or any other person who is responsible for such unauthorised construction, gets an opportunity of hearing before passing of any order of demolition. ( 5 ) MR. Ghosh contended that since the petitioners neither claimed that they constructed the said building nor they claimed that the building was caused to have been constructed by any other person at their instance, they cannot claim any right of hearing in a proceeding for demolition under Section 400 (1)of the Kolkata Municipal Corporation Act, 1980. ( 6 ) BY relying upon a Division Bench decision of this Court in the case of ram Awatar v. Calcutta Corporation, reported in AIR 1982 Cal. 314 , Mr. Ghosh submitted that the Division Bench of this Hon'ble Court, after examining the scope and ambit of the similar provision of the Calcutta Municipal Act, 1951, held that "the person responsible" means a person who has something to do with the work of construction or who is in a position to comply with an order of demolition. It was further held therein that "the person responsible" does not include an occupier of the unauthorised construction who has nothing to do with the work of such construction or any addition to it. Relying upon the said decision, Mr. Ghosh contended that the occupiers of the building in question who have no connection whatsoever with the construction of the building, cannot claim any opportunity of hearing in connection with the demolition proceeding. ( 7 ) MR. Ghosh contended that if the said principles are applied in the present case, then the irresistible conclusion will be that the petitioners do not enjoy any right of hearing in connection with a demolition proceeding under Section 400 (1) of the said Act. ( 8 ) MR. Ghosh informed this Court that here is a case where the order of demolition was passed by the mayor-in-Council under the provision of Section 400 (8) of the said Act. Mr. Ghosh pointed out that the said provision does not reserve any right of hearing for any person whatsoever, Mr. ( 8 ) MR. Ghosh informed this Court that here is a case where the order of demolition was passed by the mayor-in-Council under the provision of Section 400 (8) of the said Act. Mr. Ghosh pointed out that the said provision does not reserve any right of hearing for any person whatsoever, Mr. Ghosh contended thai under the said provision, an extraordinary power is given to the mayor-in-Council to pass an order of demolition forthwith when the Mayor-in-Council is of opinion that immediate action is called for in relation to a building or a work being carried on or in contravention of the provisions of this Act. Mr. Ghosh further pointed out that the Mayor-in-Council, however, before exercising the said power, is required to record the reasons in writing as to why the Mayor-in-Council has decided to exercise such power. ( 9 ) REFERRING to another Division Bench decision of this Court in the case of C. MC. v. Abid Hossain, reported in 2001 (1) CHN 4 , Mr. Ghosh contended that the Division Bench of this Hon'ble Court, while considering the vires of the provision of Section 400 (8) of the said Act, examined the extent of the right of the affected person to challenge the order of demolition passed under Section 400 (8) of the said Act. Mr. Ghosh pointed out that it was decided in the said decision that if the erection of the building is totally unauthorised, then nobody can challenge the legality of the order of demolition, as no right to property of any citizen is recognised under the constitution of India in respect of an unauthorised construction. It was further held therein that when a person who is authorised to erect a building in accordance with sanption, erects a building in excess of the sanction or contrary to sanction, then the person concerned is said to have any right to property in respect of the portion which was erected in accordance with the sanctioned plan and as such, such a person cannot question' the legality of the order of demolition so far as it relates to such unauthorised portion of the erection in which the right to property of any person is not recognised. ( 10 ) RELYING upon the said decision, Mr. ( 10 ) RELYING upon the said decision, Mr. Ghosh further submitted that since the entire building was constructed without any sanctioned plan, neither the owners nor the occupiers have any right in the said unauthorised construction and as such, the petitioners who have not acquired any legal right by virtue of their tenancy in such unauthorised construction, cannot question the legality of the order of demolition. ( 11 ) IN compliance of the direction passed by this Court, Mr. Ghosh, however, produced the records relating to the said demolition proceeding to show that the preconditions for exercise of such extraordinary power by the mayor-in-Council, are all satisfied in the instant case. ( 12 ) MR. Ghosh further pointed out that a four-storeyed building was constructed in the said premises without any sanctioned plan. As such, the mayor-in-Council, after considering the entire records relating to the said demolition proceeding, passed the said order of demolition. Mr. Ghosh further pointed out that all the steps which were required to be taken prior to passing of the order of demolition under the said provision, were all taken in the instant case. ( 13 ) ACCORDING to Mr. Ghosh, the petitioners who have no right to property in such unauthorised construction, cannot in any event, challenge the order of demolition passed by the Mayor-in-Council under sub-section (8) of Section 400 of the said Act. ( 14 ) IN reply to the submission of Mr. Ghosh, Mr. Panja, learned Senior counsel, appearing for the petitioners, drew my attention to the entire provisions of the Section 400 of the said Act. By referring to the explanation added to section 400 (1) of the said Act, mr. Panja pointed out that since the expression viz. , "the person at whose instance" used in the said chapter includes an occupier, the petitioners being the tenants of the disputed construction ought to have been regarded as "a person at whose instance" such construction was raised and thus in view of the first proviso to section 400 (1) of the said Act a reasonable opportunity of hearing should have been given to them before passing the said order of demolition. ( 15 ) MR. ( 15 ) MR. Panja further submitted that the tenancy in an immovable property is a right recognised under the West Bengal Premises Tenancy Act and as such, the Municipal Authority ought not to have denied the right of hearing to the petitioners in connection with the said demolition proceeding as the order of demolition would certainly affect the civil right and liberty vested in the petitioners under law. ( 16 ) MR. Panja further submitted that even the Mayor-in-Council cannot pass an order of demolition straightway without following the other provisions of the Act and/or Regulations framed thereunder. Mr. Panja further submitted that the extraordinary power under Section 400 (8) of the said Act can only be exercised in emergent circumstances when the entire endeavour on the part of the Municipal Authority to prevent construction of dangerous and unauthorised construction becomes futile. ( 17 ) MR. Panja also submitted that for ascertaining the legality of such order, the Court is required to examine the steps which the Municipal Authority had taken before passing an order of demolition in exercise of the extraordinary power under Section 400 (8) of the said Act. ( 18 ) MR. Panja, thus, submitted that an opportunity should be given to the petitioners to inspect the records of the demolition proceeding, so that they can challenge the demolition order effectively. ( 19 ) THIS Court, however, did not allow the petitioners to inspect the records relating to the demolition proceeding; rather this Court assured the petitioners to offer an opportunity to inspect the records, in the event this Court holds that the petitioners have the locus to maintain this writ petition. ( 20 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 21 ) SINCE, this Court is considering the locus of the petitioners to challenge the legality of the order of demolition in the present writ petition, this Court does not think it proper to consider the legality of such order of demolition at this stage; rather this Court restricts its consideration to the dispute regarding the locus of the petitioners to maintain this writ petition. ( 22 ) NO doubt Section 400 (1) of the said Act recognises the right of an occupier of an unauthorised construction to represent himself in a demolition proceeding. A question now emerges: Does each and every occupier enjoy such right? ( 22 ) NO doubt Section 400 (1) of the said Act recognises the right of an occupier of an unauthorised construction to represent himself in a demolition proceeding. A question now emerges: Does each and every occupier enjoy such right? ( 23 ) IN order to answer the said question, this Court is required to refer to the explanation added to Section 400 (1) of the said Act wherein the right of an occupier to participate in the hearing in terms of the first proviso to Section 400 (1) of the said Act, is recognised. The said explanation runs as follows: -"explanation.- In this chapter, "the person at whose instance" shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations if any, or does it by himself. " ( 24 ) THE first proviso to Section 400 (1) of the said Act provides that no order of demolition shall be passed unless such persons (viz. , the person at whose instance, the erection or the work has been commenced or is being carried on or has been completed), has been given, by means of the notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause as to why such order shall not be made. ( 25 ) THE said proviso read with the explanation added to Section 400 (1)of the said Act, thus, makes it clear that the right of hearing is recognised for such owner, occupier or any other person who causes erection of any building or execution of any work to be done, including alterations if any or does it by himself. In other words, the said proviso recognises the right of hearing of the person who is actually responsible for such unauthorised construction. ( 26 ) THOUGH the expression "person responsible" which was mentioned in Section 414 (5) of the Calcutta Municipal Act, 1951 has not been used anywhere in Section 400 of the present Act, but if the entire provisions of the corresponding Acts are considered, then it will be clear that the expression, viz. ( 26 ) THOUGH the expression "person responsible" which was mentioned in Section 414 (5) of the Calcutta Municipal Act, 1951 has not been used anywhere in Section 400 of the present Act, but if the entire provisions of the corresponding Acts are considered, then it will be clear that the expression, viz. , "the person at whose instance" used in Section 400 of the present Act and the expression "person responsible" used in Section 414 (5) of the Calcutta municipal Act, 1951, are synonymous, ( 27 ) AS such, while examining the locus of the petitioners, this Court can certainly take the help of the decision of the Division Bench of this Hon'ble court in the case of Ram Awatar v. Calcutta Corporation (supra), for finding out the exact meaning which can be given to the expression, "the person at whose instance" used in Section 400 (1) of the present Act. ( 28 ) THIS Court is unable to accept the submission of Mr. Panja to the effect that Section 400 (1) of the said Act recognises the right of hearing of all the occupiers in the building irrespective of the fact that he is not a person responsible for such unauthorised construction. Such submission of Mr. Panja is completely against the spirit of the Division Bench decision of this Court in the case of Ram Awatar v. Calcutta Corporation (supra ). Furthermore, if such contention of Mr. Panja is accepted, then the ultimate object of the Act to control and/or regulate unauthorised construction, will be frustrated. A person responsible for such unauthorised construction may introduce new occupier everyday in an unauthorised construction to frustrate the demolition proceeding. To obviate such eventuality, the legislature has added an explanation to Section 400 (1) of the said Act which clarifies that the expression, viz. , "the person at whose instance" means the person who is actually responsible for such construction. As such, this Court has no hesitation to hold that the said provision does not contemplate the right of hearing of any person other than those who are responsible for such unauthorised construction. ( 29 ) THE other Division Bench decision in the case of C. M. C. v. Abid hossain (supra) which was relied upon by mr. As such, this Court has no hesitation to hold that the said provision does not contemplate the right of hearing of any person other than those who are responsible for such unauthorised construction. ( 29 ) THE other Division Bench decision in the case of C. M. C. v. Abid hossain (supra) which was relied upon by mr. Ghosh also makes it abundantly clear that no legal right is created in favour of a person in respect of any building which has been erected without sanction. ( 30 ) IT is not the case of the petitioners that the said construction was made with a sanctioned plan. If the construction is not made with a sanctioned plan, the irresistible conclusion will be that no legal right was created in favour of the petitioners in such unauthorised construction. As such, the petitioners, in my view, cannot challenge the legality of the order of demolition passed by the mayor-in-Council under Section 400 (8) of the said Act. ( 31 ) LET me now consider the other phase of argument of Mr. Panja. ( 32 ) BY referring to the provision contained in Section 400 (3) of the said act, Mr. Panja submitted that a restricted meaning cannot be given to the expression "any person" used in Section 400 (3) of the said Act. According to mr. Panja, "any person" cannot be confined to those persons only at whose instance the erection of the work has been commenced or is being carried or has been completed. Mr. Panja contended that "any person" carries a wider meaning which includes all persons who are affected by the order of demolition. ( 33 ) MR. Panja also contended that if the order of demolition is executed, then the petitioners will lose their tenancy right in the said premises and as such it cannot be said that the petitioners are not affected by the order of demolition. ( 34 ) MR. Panja further contended that no one can conceive of a situation that a person who has been conferred with a right of appeal, cannot participate in a proceeding for demolition under Section 400 (1) of the said Act, before the municipal Commissioner. Thus, Mr. ( 34 ) MR. Panja further contended that no one can conceive of a situation that a person who has been conferred with a right of appeal, cannot participate in a proceeding for demolition under Section 400 (1) of the said Act, before the municipal Commissioner. Thus, Mr. Panja argued that all affected persons who have right to appeal under Section 400 (3) of the said Act, have also the right of participation in the proceeding under Section 400 (1) of the said Act. ( 35 ) ON the first hearing, this Court was impressed with such submission of Mr. Panja. But gradually this impression eroded for the following reasons: -In this connection let me now consider first of all the scope and/or ambit of both sub-section (1) and sub-section (3) of Section 400 of the said Act for finding out the solution. ( 36 ) FIRST proviso to sub-section (1) of Section 400 of the said Act recognises the right of hearing of the person at whose instance the erection of the work has been commenced or is being carried on or has been completed. Explanation added to sub-section (1) of Section 400 of the said Act explains the meaning of the expression "person at whose instance" appearing in sub-section (1) thereof. It is stated in the said explanation that in this chapter "the person at whose instance" shall mean the owner, occupier or any other person, who causes the erection of any building or execution of any work to be done including alterations if any, or does it by himself. Thus, "the person at whose instance" is an inclusive expression which not only includes the owner or the occupier but also includes any other person who causes erection of any building or execution of any work to be done including alterations if any or does it by himself. ( 37 ) IN short, the right of hearing is recognised for such owner, occupier or any other person who is actually responsible for such unauthorised construction. ( 38 ) LET me now consider the provision relating to appeal. ( 39 ) SECTION 400 (3) of the said Act confers a right of appeal upon "any person" who is aggrieved by an order made under Section 400 (1) of the said act. ( 38 ) LET me now consider the provision relating to appeal. ( 39 ) SECTION 400 (3) of the said Act confers a right of appeal upon "any person" who is aggrieved by an order made under Section 400 (1) of the said act. ( 40 ) DOES the expression "any person" mean and/or include all persons affected by the order of demolition ? ( 41 ) MY answer to this question is "no". The reason is very simple. The person whose right of hearing is not recognised at the trial stage, cannot claim any right of appeal, as appeal is a continuation of the original proceeding. Then i will have to find out the persons whose right of participation. In the proceeding at the initial stage is recognised and the person whose such right is not recognised. ( 42 ) I repeat once again that it is only those owner, occupier and/or any other person who is responsible for such construction, is the person whose right of participation in the proceeding under Section 400 (1) of the said Act is recognised. Needless to mention here that such right of participation of the other owner, occupier who is not responsible for such construction, is not recognised. If that be the position in law, then this Court has no hesitation to hold that "any person" carries a restricted meaning with it. ( 43 ) THUS, this Court holds that the owner and/or occupier who is not responsible for such construction, cannot prefer any appeal under Section 400 (3) of the said Act. "any person" means any of three categories of persons, viz. , owner, occupier or any other person who is actually responsible for such construction. ( 44 ) FURTHERMORE, a tenant being an occupier of an unauthorised construction cannot oppose demolition of an unauthorised construction by contending, inter alia, that though such construction is unauthorised but still then such construction should be retained to protect the tenant's occupation therein, In case of demolition of any unauthorised construction, a tenant may at best claim compensation for loss of his tenancy against his landlord who has inducted the tenant in an unauthorised construction without disclosing the nature of such construction, but the tenant cannot resist demolition of an unauthorised construction on a plea of loss of his tenancy right. The Municipal Authority is not a party to the tenancy agreement and as such, the Municipal Authority has no duty to look into the sufferance of the tenants due to demolition of the unauthorised construction. ( 45 ) THUS, this Court holds that the petitioners are not the persons affected by the order of demolition. ( 46 ) ACCORDINGLY, I conclude that the petitioners being the tenants of an unauthorised construction, do not have any locus to challenge the order of demolition, be it passed under sub-section (1) or under sub-section (8) of Section 400 of the kolkata Municipal Corporation Act, 1980. ( 47 ) THIS Court, thus, holds that the petitioners have no locus to maintain this writ petition. The preliminary objection raised by Mr. Ghosh regarding the maintainability of this writ petition thus stands sustained. Accordingly, the writ petition is rejected.