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2008 DIGILAW 10 (CAL)

Subrata Ghosh v. The State of West Bengal

2008-01-08

DIPANKAR DATTA

body2008
Judgment Alleging that the respondent no.8 (adjacent owner of property) had been raising illegal and unauthorized construction, the petitioner lodged an objection with the Kolkata Municipal Corporation (hereafter the Corporation) seeking redress. Since the Corporation remained inactive, the petitioner invoked the writ jurisdiction of this Court by filing W.P. No.375 of 2007 praying for, inter alia, the following relief: “(a) In the nature of Mandamus directing the respondent authorities, their men, agents associates and each of them to take all possible/feasible steps in accordance with law to stop immediately such illegal unauthorized construction carried out by the respondent no.6 over his property at 7, Akhil Mistry Lane, Kolkata 700 009; (b) In the nature of Mandamus directing the respondent authorities, their men, agents, associates and each of them to take steps in accordance with law and inspect the aforesaid premises of the respondent no.6 and also furnish information to the petitioner whether the respondent no.6 has obtained any sanction from the concerned authority regarding his construction over his aforesaid property;” By an order dated 29.3.07, the writ application was disposed of by, inter alia, the following order: “In the writ application the petitioner has alleged that though the respondent No.6 is carrying on an authorized construction at 7 Akhil Mistry Lane, Kolkata which was brought to the notice of the authorities of the Kolkata Municipal Corporation, yet no steps have been taken. Learned advocate appearing on behalf of the Kolkata Municipal Corporation on instructions submits that the allegations against the authorities are not correct, since after receiving the complaint, on 11th January, 2007, stop work notice was issued under Section 401 of the Kolkata Municipal Corporation Act, 1980. Guards were posted. However guards were withdrawn after an undertaking was given by the private respondent and charges for posting of guards were deposited. Submission has been made that the municipal authorities are shortly going to initiate proceedings under Section 400 of the said Act. Guards were posted. However guards were withdrawn after an undertaking was given by the private respondent and charges for posting of guards were deposited. Submission has been made that the municipal authorities are shortly going to initiate proceedings under Section 400 of the said Act. In my view, since it appears from the submission on behalf of the Corporation that steps have been taken, no further order need be passed save and except that the Executive Engineer, Borough-V shall forward the matter to the Special Officer (Building), Kolkata Municipal Corporation within a fortnight from the date of communication of this order and, thereafter, the Special Officer shall dispose of the matter in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 after giving notice for hearing to the petitioner and the respondent No.6. I make it clear that I have not gone into the merits of the case and all points are left open to be decided by the authorities.” It is the grievance of the petitioner that despite forwarding the order passed by this Court and despite urging the Corporation to take immediate steps in terms thereof to prevent illegal construction being carried on by respondent no.8, the Corporation did not respond. Feeling aggrieved thereby, the petitioner has approached the Court of Writ once again with the present petition wherein, inter alia, he has prayed for the following relief: “(a) In the nature of Mandamus directing the respondent authorities their men servants agents associates and each of them to take steps regarding the demolition of unauthorized and/or illegal construction carried on by the respondent No.8 over his property at 7, Akhil Mistry Lane, Kolkata 700 009 with immediately effect; (b) In the nature of Mandamus directing the respondent authorities their men servants agents associates and each of them to take steps immediately to prevent/stop the illegal and unauthorized construction carried on by the respondent no.8 over his above mentioned property any further;” Learned counsel for the petitioner contended that the Corporation should be directed to take immediate steps against the respondent no.8 who has been carrying on illegal construction activities with impunity. The writ petition has been opposed by the Corporation and the private respondents. The writ petition has been opposed by the Corporation and the private respondents. According to respective learned counsel appearing on their behalf, pursuant to the order passed on the earlier writ petition, proceedings against the respondent no.8 was drawn up under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 (hereafter the Act) being Demolition Case no.39-D/07-08, Br.V.; notices of hearing were duly sent to the respondent no.8 (person responsible) as well as the petitioner (complainant) asking them to appear before the Special Officer (Building) for a hearing; despite service of notice, the petitioner did not appear to press his complaint; and, by an order dated 9.8.07 the said case was disposed of by the Special Officer by passing the following order: “That no order for demolition is hereby passed in respect of impugned unauthorized constructions subject to complying the following preconditions, within 30 days from the date of the communication of this order. These conditions are (1) P.R. must produce a certificate from any K.M.C. paneled Structural Engineer certifying that the structural stability and the foundation of the impugned constructions are safe and sound and the materials used as well as workmanship are as per the latest edition of National Building code of India. The said certificate will also speak the relevant present demolition proceeding case No, (2) she must furnish an affidavit declaring on oath that she will not make any constructions whatsoever in the impugned premises without prior sanction from the K.M.C. authority and (3) P.R. must pay the necessary charges and penalties for such allowing to stand the impugned unauthorized constructions as it was held by Their Lordships in a reported decision reported in 2007(1) CLJ Cal 143. On non compliance of either of the conditions within above stated specified period the K.M.C. authority shall demolish the same at the cost and at the risk of the P.R.” It is the contention of learned Counsel for the respondent no.8 that no order having been passed by the Special Officer (Building) directing demolition of the unauthorized construction, the petitioner cannot legitimately urge before this Court to sit in appeal on the decision of the Special Officer, reverse the findings arrived at by him, set aside the order and then direct demolition of the unauthorized construction. Reacting to the submissions made on behalf of the petitioner that the order of the Special Officer dated 9.8.07 had been passed without serving him appropriate notice of hearing, he invited the attention of the Court to paragraph 4 (i), (ii) and (iii) of his counter affidavit which reads as follows: i) I state that I have duly received the notice from the Kolkata Municipal Corporation regarding the hearing fixed on 09.08.2007 before the Special Officer (Building) under Section 400(1) of KMC Act, 1980 in respect of premises No.7 Akhil Mistry Lane, Kolkata-700 009 through post under certificate of posting. ii) I further say that on the day when the postal peon came to serve the said notice at my address at 7 Akhil Mistry Lane, Kolkata-700 009, coincidentally, I was getting out from my house and as such upon seeing me the postal peon instead dropping the said letter in the letter box handed over the same to me. I further state that the postal peon asked me about the entrance of premises No.8 Akhil Mistry Lane, Kolkata-700 009 and when I enquired from him, he said that he had got a similar notice in the name of Subrata Ghosh, the petitioner herein, and he has to deliver it and as such I showed him the house of the petitioner which is just adjacent to my house and the postal peon went to the said house and dropped the said notice of KMC in the said address. iii) In the aforesaid facts and circumstances it can be presumed beyond doubt that the notice which was addressed and sent to the petitioner by the KMC authorities regarding the hearing to be held on 09.08.2007 before the Special Officer (Building) was served upon the petitioner and the petitioner in spite of having notice of the said hearing chose not to appear before the said Special Officer (Building) on the said date of hearing. In this connection, he also referred to the reply affidavit of the petitioner and more particularly paragraph 7 thereof which reads thus: “That with regard to statements made in paragraph Nos. In this connection, he also referred to the reply affidavit of the petitioner and more particularly paragraph 7 thereof which reads thus: “That with regard to statements made in paragraph Nos. 4(i), (ii) and (iii) of the said affidavit I vehemently deny and dispute the same except which are matter of record.” Learned Counsel for the Corporation invited the attention of the Court to paragraph 6 of its counter affidavit which reads thus: “On 12.7.2007 the said notice of hearing was issued by the Administrative Officer (building) and the same was sent by messenger to serve by hand delivery upon Sri Subrata Ghosh, petitioner and Smt. Bela Dey the person responsible for the unauthorized construction. The said Smt. Bela Dey received the said service of notice by hand through Mr. Subir Chowdhury and issued receipt therefore and on the same day the said messenger went to the residence of the Writ petitioner, Sri Subrata Ghosh and tendered the notice to him for receiving the same but he refused to accept the said service of notice for hearing., Therefore, as per provisions of the KMC Act, 1980 the concerned department served the notice of hearing upon the writ petitioner by under Certificate of posting.” Based on the contentions raised in their respective counter affidavits, learned counsel for the Corporation and the respondent no.8 urged this Court to hold that the petitioner had due notice of hearing, yet, he abstained therefrom and therefore cannot now turn around and claim that the proceedings has been conducted in clear breach of principles of natural justice. Upon consideration of the pleadings of the parties and the materials on record, this Court is unable to record its satisfaction that the respondents have been able to prove that notice of hearing had duly been tendered to the petitioner but he refused to accept the same. The contentions raised by the Corporation and the private respondents in the respective affidavits are mutually inconsistent and therefore, this court has hesitation to rely thereon. The counter affidavit of the Corporation is taken up for consideration first. As would appear from paragraph 6 extracted supra, the petitioner refused to accept the notice when tendered to him and thereafter the same was dispatched under certificate of posting. The counter affidavit of the Corporation is taken up for consideration first. As would appear from paragraph 6 extracted supra, the petitioner refused to accept the notice when tendered to him and thereafter the same was dispatched under certificate of posting. Contents of paragraph 6 have been verified by the deponent of the counter affidavit Sri Anjan Kumar Bannerjee, Assistant Engineer (Civil) as information derived from records which he verily believes to be true. Records that have been annexed to the counter affidavit reveal a hearing notice addressed to the petitioner as well as a certificate of posting dated 16.7.07 given by a post office. Whether or not the petitioner refused to accept the notice tendered to him by the messenger concerned (unnamed) who was entrusted with such duty could have been disclosed either by the messenger himself by filing an affidavit or such fact could have been proved by annexing to the affidavit service report signed by the said messenger recording that the petitioner refused to accept service of the said notice. It is trite law that if facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter affidavit, as the case may be, the Court may not entertain the point. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it (see Bharat Singh vs. State of Haryana : AIR 1988 SC 2181 ). There being nothing on record to show that the messenger had reported back refusal of the petitioner to accept service of notice of hearing, and the pleading that the messenger had been to the residence of the petitioner not having been verified as information derived from the messenger himself, the Court is loath to rely on such pleading. The allegation that the notice was thereafter despatched by certificate of posting to the petitioner cannot also come to the rescue of the Corporation in view of the decision of the Apex Court in the case of State of Maharastra vs. Rashid Babubhai Mulani reported in 2006 (1) Supreme 47 , wherein in paragraph 14 it has been held as follows: “A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificate can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Post may have to evolve some procedure whereby a record in regard to issuance of the certificate is regularly maintained showing a serial number, date, sender’s name and addressee’s name to avoid misuse. In absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communication is disputed or denied as in this case”. Service of notice under of certificate of posting may give rise to a presumption that the notice, if correctly addressed and sent through a post office, has been duly despatched but such presumption is rebuttable and if a party contends in Court that the notice was not served on him, the burden of proof of service would always be on the sender. This burden has not been satisfied by the Corporation by establishing that the notice of hearing was duly served on the petitioner. This Court has looked into the order of the Special Officer (Building) dated 9.8.07. It appears therefrom that apart from recording that the petitioner was absent, the Special Officer has also not recorded what the service return shows. There is therefore sufficient ground to believe that the final decision in connection with the demolition case initiated by the Corporation against the respondent no.8 on the basis of the petitioner’s complaint was taken without putting him on notice. Next, the contention of the respondent no.8 is taken up for consideration. Although learned Counsel on his behalf has correctly contended that paragraph 7 of the reply contains evasive denial of statements contained in paragraph 4 (i), (ii) and (iii) of the counter affidavit, the immediately succeeding paragraph of the reply is relevant and, therefore, quoted below: “I further said that till today I have not received any notice issued by the respondent Nos. 1 to 7 in compliance of the order dated 29.03.2007 passed by this Lordship Hon’ble Justice Soumitra Pal in W.P. No.375 of 2007 conversely I have issued several notice and remainders to the respondent Nos. 1 to 7 requesting them to comply the aforesaid order but they did not informed me regarding the alleged date of hearing even they did not supply a copy of order of the alleged proceeding to me which is out and out violation of principal of Natural Justice and that is my main grievance in the instant writ petition. The respondent no.8 fainted out the false and fabricated story in order to validate the alleged proceeding which is in the eye of law in nonest and whole proceeding may be vitiated on the ground of natural justice. In different status and catera of Judgments pronounced by order Apex Court that under certificate of posting is not on effective service and whet it is disputed little assistance may be given to it”. The petitioner has, therefore, emphatically denied service of notice on him. That apart, this Court has failed to comprehend as to how notice of hearing was served on the respondent no.8 by the postal peon as contended by him. Copy of the notice of hearing annexed to the counter affidavit filed by the Corporation is addressed, apart from the petitioner, to Smt. Bela De (predecessor-in-interest of the respondent no.8, as stated by his learned Counsel in Court) and the service return shows that one Subir Chowdhury accepted it on her behalf. The Corporation in its counter affidavit has not pleaded that notice was served on the respondent no.8 personally. The notice not having been addressed to the respondent no.8, how he could receive such notice has not been explained. Also, several envelopes which were sent under certificate of posting (record whereof is annexed to the counter affidavit of the Corporation) does not indicate the name of the respondent no.8 or Smt. Bela De to whom the same were sent under certificate of posting. Plea of the private respondent that he received the notice from the postal peon is therefore not trustworthy. This Court, therefore, is not convinced that the petitioner had notice of hearing before the Special Officer. Prejudice caused to the petitioner is more than apparent. Plea of the private respondent that he received the notice from the postal peon is therefore not trustworthy. This Court, therefore, is not convinced that the petitioner had notice of hearing before the Special Officer. Prejudice caused to the petitioner is more than apparent. There has, thus, been violation of principles of natural justice and the order of the Special Officer is held to have been passed not in conformity with law. Contention of learned Counsel for the respondent no.8 that contents of paragraphs 2 and 7 of the petition reveal the petitioner’s knowledge of the order of regularisation of the unauthorised construction cuts no ice since knowledge aliunde of such fact cannot cure the defect of violation of natural justice as noted above. In view of the above conclusions, it is directed that the order dated 9.8.07 passed by the Special Officer shall be kept in abeyance and any action taken in pursuance thereof shall not be given further effect. The respondent no.8 shall remain restrained from raising any further construction. The Special Officer is directed to notify a fresh date of hearing to the petitioner as well as the respondent no.8 according to his convenience within a period of fortnight from date of communication of this order. Copy of such notice by way of abundant caution shall be served on learned advocates-on-record for the petitioner as well as the respondent no.8. Upon hearing the parties and on consideration of the materials placed before him, a fresh order shall be passed by the Special Officer (Building). However, in the process, he shall not look into any document relied on by a party unless opportunity of inspection thereof is given to the other party. The writ petition stands disposed of with the aforesaid directions. Parties, however, shall bear their own costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 3 days from date of putting in requisites therefor. Later: Prayer for stay of operation of the order has been made by the learned Counsel for the respondent no.8. The prayer is considered and rejected.