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2017 DIGILAW 991 (CAL)

Prabhat Kumar Das v. Baidyabati Municipality

2017-12-18

SHEKHAR B.SARAF

body2017
JUDGMENT : SHEKHAR B. SARAF, J. 1. Affidavit of service filed in Court is kept with the record. This is an application under Article 226 of the Constitution of India challenging the report dated August 6, 2014 passed by the Chairman, Baidyabati Municipality. The above order was passed on a direction given by an order passed on February 7, 2014 by this High Court directing the authorities to carry out an inspection, grant opportunity of hearing and thereafter pass a reasoned order dealing with the representations of the writ petitioner and the private respondent. 2. On the face of the order itself, it is clear that the Municipality has failed to determine the height of the boundary wall from the earth level as the report is completely silent about the same. Secondly, the authority has come to a conclusion that the boundary wall exists since decades. The above conclusion is immediately followed by a sentence that the age of the wall has not been ascertained as the same is a subject to be dealt with by the Civil Engineer and the Municipality has no such infrastructure. 3. After saying the above, the authority has come to the following conclusion :- "Hence it cannot be stated that private respondent not raised the offending boundary wall, rather he has purchased the property along with said boundary wall, although in his sale deed the existence of boundary wall clearly not mentioned." 4. The above finding of the respondent authorities is quite befuddling as the same contradicts itself. The finding of the authority with relation to the fact that the private respondent purchased the property along with boundary wall inspite of the fact that the same is not reflected in the sale deed is even more startling. Clearly, there is a lot to be answered by the respondent authorities. 5. Counsel appearing on behalf of the private respondent submits that an appeal lies against the order passed under Section 218 of the West Bengal Municipal Act and accordingly, the writ petition is not maintainable on the ground of alternative efficacious remedy. 6. Mr. Gopal Ch. Ghosh, Advocate appearing on behalf of the petitioner submits that the writ jurisdiction is an extraordinary jurisdiction and is a discretionary jurisdiction. He further submits, that the order dated August 6, 2014 is clearly based on perverse finding and does not contain reasons to support the said findings. 7. 6. Mr. Gopal Ch. Ghosh, Advocate appearing on behalf of the petitioner submits that the writ jurisdiction is an extraordinary jurisdiction and is a discretionary jurisdiction. He further submits, that the order dated August 6, 2014 is clearly based on perverse finding and does not contain reasons to support the said findings. 7. I have considered the submissions made on behalf of both the parties. Firstly, I shall deal with the preliminary objection raised by the private respondent in relation to maintainability of this writ petition. 8. The power under Article 226 of the Constitution of India is a discretionary extraordinary power and should be exercised by the High Court in those cases where the statutory authority has not acted in accordance with the provisions of the statute in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice causing prejudice to the petitioner. 9. In A.S. Motors Private Limited v. Union of India and Others, reported in (2013) 10 SCC 114 , the Supreme Court held as follows: (p-121, para 8) "Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and what of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the tribunal and the rules and regulations under which it functions. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are legion. We may refer to only some of the decisions on the subject which should in our opinion suffice." 10. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi reported in (1991) 2 SCC 716 , the Supreme Court while reiterating the legal position observed: (p-738, para 22) "22. ... The omnipresence and the omniscience (sic) of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straitjacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances." 11. Keeping in mind the above principles, it is evident that normally when a statutory appeal is available, the High Court should not interfere unless the exceptions come into play. In a case, where there are perverse findings that are based on no evidence whatsoever, or are based on a completely wrong understanding of the facts, one can clearly state that such an order is in violation of the principles of natural justice. Whether there has been a violation of the principle of natural justice has to be examined in the facts and circumstances of each case. In the present case, when the authorities have come to a palpably wrong and perverse finding that is evident from the bare reading of the order, the respondent authorities cannot expect the writ Court to ignore the same and relegate the matter to the statutory appellate authority. 12. Secondly, it has to be kept in mind that the order dated August 6, 2014 had been passed on an order directing a reasoned order to be passed by the High Court. The High Court had directed the authorities to come to their findings supported by a reasoned order. 12. Secondly, it has to be kept in mind that the order dated August 6, 2014 had been passed on an order directing a reasoned order to be passed by the High Court. The High Court had directed the authorities to come to their findings supported by a reasoned order. Unfortunately, the respondent authorities have failed miserably to carry out the duty cast upon them by the High Court. The above failure has clearly resulted in prejudice being caused to the writ petitioner in the present case. 13. In such a situation, the argument that the writ petition is not maintainable because of the existence of a statutory appeal, holds no water and is accordingly rejected. 14. In view of the same, order dated August 6, 2014 is quashed and set aside with a direction on the Chairman, Baidyabati Municipality to carry out an inspection once again, examine the sanction plan and the sale deed of the writ petitioner and the private respondent, ascertain the height of the boundary wall and other details such as the age of the boundary wall, grant an opportunity of hearing to the writ petitioner and the private respondent and thereafter come to a conclusion based upon a reasoned order. 15. The above exercise is to be carried out within a period of eight weeks from the date of communication of this order to the Municipality. Report made by the Municipality shall be given one week in advance to both the parties before the date of hearing. Reasoned order to be communicated to both the parties within two weeks from the date of passing of such reasoned order. With the above observations, this writ petition is disposed of. No order as to costs.