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2018 DIGILAW 75 (CAL)

Anjali Jewellers v. Kolkata Municipal Corporation

2018-01-10

SUBRATA TALUKDAR

body2018
JUDGMENT : Subrata Talukdar, J.: 1. This petition under Article 226 of the Constitution of India is heard without affidavits since the appearing parties have urged this Court considering that the central facts are not in dispute, to only consider the salient points of law which may be summarised as follows:- (a) Whether there has been a failure of natural justice qua the in the proceedings culminating in the order of the Ld. Municipal Building Tribunal/Kolkata Municipal Corporation (KMC) dated the 20th of January, 2017 in Building Tribunal Appeal No. 74 of 2003 (for short BT Appeal No. 74/2003 or, simply the BT Appeal )arising out of the order of the Special Officer (Building) in Demolition Case No. 50-D/2002-2003, Borough – V in respect of Premises No. 124/1, B. B. Ganguali Street, Kolkata-700012 (for short the said Premises). (b) Whether the writ petitioner has the locus to now challenge the final order of the Ld. Tribunal dated 20th of January, 2017 without participating either in the BT Appeal or, before the Special Officer (Building) (supra). (c) Whether the writ petitioner can now avail of the benefit of the Amendment Act, 2014 to Section 400 of the Kolkata Municipal Corporation Act, 1980 (for short the KMC Act) which has been ushered into effect from 15th January, 2015, i.e. during the pendency of the BT Appeal. 2. To answer the above recorded issues it would be necessary for this Court to have a brief look at the antecedent and connected facts. 3. It is not in dispute that by Deed of Conveyance dated the 8th of December, 2011 (the Deed or, the said Deed) between the Vendor, one Arindam Mukherjee and the writ petitioner, Mrs. Anjali Jewellers (for short M/s. AJ or, the petitioner), the said premises were purchased for consideration by the latter from the former. 4. Relevant recitals in the Deed merit the specific attention of this Court because of the fact that under the order of demolition as passed by the Special Officer (Building) and affirmed by the Ld. Tribunal the affected portions/areas were in the occupation of the present respondent No.6/the erstwhile Lessee. 4. Relevant recitals in the Deed merit the specific attention of this Court because of the fact that under the order of demolition as passed by the Special Officer (Building) and affirmed by the Ld. Tribunal the affected portions/areas were in the occupation of the present respondent No.6/the erstwhile Lessee. The relevant recitals are accordingly set forthwith below:- “By a Deed of Lease dated 15th March, 2002 made between the Vendor herein therein referred to as the Lessor of the One Part and one Sreeniwas Gupta therein referred to as the Lessee of the Other Part and registered in Book No.1 Volume No.11, Pages 4280 to 4302, Being No. 1283 for the year 2002 in the office of the Additional Registrar of Assurances, Kolkata the Lessor therein for the consideration and the terms and conditions mentioned therein, demised, granted, transferred, assured and assigned unto and in favour of the said Lessee All That the first floor containing an area of 6000 sq. ft. of the said premises for a period of 51 years. By a Deed of Lease dated 15th March, 2002 and between the Vendor herein therein referred to as the Lessee of the Other Part and Sreeniwas Gupta therein referred to as the Lessee of the Other Part and registered in Book No.1, Volume No.1, Pages 4365 to 4386 Being No.1287 for the year 2002 in the office of the Additional Registrar of Assurances; Kolkata and for the consideration and terms and conditions therein mentioned they Vendor herein demised, granted, transferred, assured and assigned unto and in favour of the said Lessee All That the space containing an area of 8 ft. in length and 5 ft. in width on the ground floor of the said premises for a period of 21 years. in length and 5 ft. in width on the ground floor of the said premises for a period of 21 years. By a Deed of Lease dated 15th March, 2002 made between the Vendor herein therein referred to as the Lessor of the One Part and one Smt. Shanty Devi Gupta therein referred to as the Lessee of the Other Part and registered in Book No.1, Volume No.1, Being No. 1284 for the year 2002 in the office of the Additional Registrar of Assurances, Kolkata and for the consideration and terms and conditions therein mentioned and Vendor herein demised, granted, transferred, assured and assigned unto and in favour of the said Lessee All That the second floor of the said premises having an area of 6000 sq. ft. be the same a little more or less for a period of 51 years. By a Deed of Lease dated 15th march, 2002 made between the Vendor herein therein referred to as the Lessor of the One Part and one Surya Kant Jaiswal therein referred to as the Lessee of the Other Part and registered in Book No.1, Volume No.1, Pages 4341 to 4363 Being No. 1286 for the year 2002 in the office of the Additional Registrar of Assurances, Kolkata and for the consideration and terms and conditions therein mentioned the Vendor herein demised, granted, transferred, assured and assigned unto and in favour of the said Lessee All That the third floor of the said premises having an area of 6000 sq. ft. be the same a little more or less comprising of partly rooms and partly open terrace for a period of 51 years. 5. The Vendor has now agreed to sell, transfer and assign to the Purchaser All That the said premises consisting the first, second and third floors each measuring an area of 6000 sq. ft. be the same a little more or less and portion of the ground floor having an area of 978.2 sq. ft. 5. The Vendor has now agreed to sell, transfer and assign to the Purchaser All That the said premises consisting the first, second and third floors each measuring an area of 6000 sq. ft. be the same a little more or less and portion of the ground floor having an area of 978.2 sq. ft. be the same a little more or less together with the undivided 7.12 cottahs of land be the same a little more or less and more fully and particularly described in the Schedule “B” hereunder written along with the remainder leasehold right existing in respect of the said premises as per the Deed of Lease dated 30th September, 1935 on “as is where is basis” free from all charges, liens, lispendens, acquisitions, requisitions, attachments, trusts of whatsoever nature subject to the existing occupants and subsisting litigations more fully and particularly described in the Schedules “C” and “D” below at and for the consideration of a sum of Rs. 1,10,00,000/- (Rupees one crore ten lacs only) and on the terms and conditions recorded herein. AND THAT the Vendor doth hereby convenant and assure the Purchaser that he has not encumbered the said premises in anyway except by way of lease and tenancies as hereinbefore stated and have full power and absolute authority to sell and same in the manner aforesaid AND if, for any defect in the Vendor’s title, the Purchaser is dispossessed and/or deprived of full enjoyment and benefit of the said property or any part or parcel thereof in that event the Vendor shall and will indemnify the Purchaser of all losses and damages to be suffered by him in respect of the said property hereby sold to the Purchaser. THE SCHEDULE “A” ABOVE REFERRED TO: ALL THAT the three storeyed brick built building messuage tenement and dwelling house erected on the piece and parcel of land containing an area of 9 cottahs be the same a little more or less situate lying at and being Premises No. 124/1, Bepin Behari Ganguly Street (formerly known as Bowbazar Street), Holding No. 462 Police Station – Muchipara, Kolkata- 700012. THE SCHEDULE “B” ABOVE REFERRED TO: ALL THAT the said premises consisting of the first, second and third floors each measuring an area of 6000 sq. ft. be the same a little more or less and portion of the ground floor having an area of 978.2 sq. THE SCHEDULE “B” ABOVE REFERRED TO: ALL THAT the said premises consisting of the first, second and third floors each measuring an area of 6000 sq. ft. be the same a little more or less and portion of the ground floor having an area of 978.2 sq. ft. be the same a little more or less along with undivided 7.12 cottahs of land be the same a little more or less situate lying at premises No. 124/1, Bepin Behari Ganguly Street, Kolkata- 700012, Police Station-Muchipara, Ward No.50 together with all easements, rights, privileges, appurtenances, amenities and facilities attached with and/or relating thereto and all common passage, courtyard, water reservoir, pump room etc. and butted and bounded in the manner following, that is to say: ON THE NORTH : Bepin Behari Ganguly Street; ON THE EAST : By premises No. 125A & 125B, Bepin Behari Ganguly Street (also known as Refuge); ON THE SOUTH : By premises NO.26/4B, Sashi Bhusan Dey Street; ON THE WEST : Sashi Bhusan Street. THE SCHEDULE “C” ABOVE REFERRED TO: LIST OF OCCUPANTS IN THE SAID PREMISES 3rd Floor – Surya Kanti Jaiswal (son of Srinivas) 2nd Floor – Shanti Devi Gupta (wife of Srinivas) 1st Floor - S.B.I. (under occupation of Srinivas) THE SCHEDULE “D” ABOVE REFERRED TO: (LIST OF PENDING SUITS/CASES) Small Causes Court (Calcutta): Ej. Sout No. 224 of 2003, Ej Suit NO. 225 of 2003, Ej Suit NO. 226 of 2003, City Civil – T.S. No. 1609 of 1999, T.S. No. 747 of 2003, T.S. 1392 of 2002, T.S. No. 520 of 2003, T.S. No. 748 of 2003, T.S. No. 2215 of 2011, T.S. NO. 1391 of 2002; Bankshall Court – Suit NO. 286 of 2011 & Misc No. 563 of 2011.” 6. It would be next relevant to notice the order of demolition issued by the Special Officer (Building) dated 20th October, 2003 on a complaint before the KMC by the Vendor against the respondent No.6. It is further relevant to mention that the order of the Special Officer (Building) (or, only the Special Officer) dated the 20th October, 2003 makes mention of the order of Court dated 12th August, 2002 directing the KMC Authority to take appropriate steps in accordance with law after affording an opportunity of hearing to the writ petitioner and the private respondents. 7. 7. While executing compliance with the order of Court dated 12th of August, 2002 the Special Officer opined that neither of the parties, i.e. the complainant/Vendor and the respondent No.6/erstwhile Lessee have been able to produce any sanctioned plan connected to the said premises. The Special Officer therefore proceeded on the basis of a demolition sketch prepared by the concerned department of KMC which was “verified by both the sides and found to be agreeable”. 8. The Special Officer therefore arrived at the following findings:- “The demolition sketch shows a Medical shop having an unauthorised construction of Mezzanine floor. The height of the Mezzanine floor is 2.76 M. from the ground level. The Head above the Mezzanine floor is 2.10 M. There is no mention of the Mezzanine floor in the lease deed. The reception room has also been constructed at ground floor. A Stationary shop has also been shown with a Mezzanine floor at the ground floor. The AE (C) vide his report on 20.05.2003 states that the Reception Room at the ground floor has been reconstructed by eracting brick wall replacing the wodden planks and the wooden roof has been replaced by AE (C). The departmental report the total area of unauthorised construction at ground floor is 20.55 sq. ft. with Mercancile use. It is seen from the copy of the inspection body w.e.f. 1/97-98 that there are shops including Medicine shop in the ground floor. The lease agreement has reference of a Midicine shop measuring 6’ X 20’ on the south side on the Ground floor. The lease agreement has also a reference of a covered space measuring 8’ X 5’ on the ground floor having a Gate of 2’8’ facing Sashi Bhusan Dey Street. Thus the construction made at the ground floor has reference in the lease deed accepting in the Mezzanine floor. All the constructions at the ground floor have been made within the frame work of the existing building and there may not be any point of objection of retaining those constructions excepting the Mezzanine floor. In the 2nd floor portion walls have been exacted and several cubicles have been created for making Guest House. The objection of the lessor is that the number of rooms before the lease deed were 16 and none were having attached bath as proved in the inspection book restriction on the use of the floor for commercial purpose. In the 2nd floor portion walls have been exacted and several cubicles have been created for making Guest House. The objection of the lessor is that the number of rooms before the lease deed were 16 and none were having attached bath as proved in the inspection book restriction on the use of the floor for commercial purpose. The construction of additional walls for creating more rooms and toilets have no mention in the lease agreement. Thus the construction of additional wall shown in red colour may not be permissible in terms of the lease agreement although no extra area has been created by the lessee by such activity and all have been done in the interest of his business as Guest House. Hence this partition walls may be treated as unauthorised construction. In the third floor all the construction in red colour are unauthorised in nature and hence all the red colour red constructions on the 3rd floor have no jurisdiction. As per the report of the AE dt. 20.05.2003 lift was constructed after demolishing the existing stair case at the back side used by servants for vertical access to the building from ground floor to top floor. The stair case leading from 2nd floor to 3rd floor has been newly constructed. The construction of the lift and the new stair case may not be objected to as such as arrangement is necessary for the building with the type of use. The construction of the lift may be permitted as a requirement of such a devise is necessary and also not objected to in the lease agreement. The following orders are hereby passed based on submissions and records.” 9. The Special Officer accordingly ordered as follows:- “Part ‘A’ – (a) The P.R. shall demolish the Mezzanine floor erected at the Medical shop and shown in the demolition sketch in red colour in Section ‘A – A’ at his own cost and risk. (b) The P.R. shall demolish the red coloured partition walls erected in the 2nd floor plan as shown in the demolition sketch plan at his own cost and risk. (c) The P.R. shall demolish all the red coloured constructions shown in the demolition sketch at 3rd floor plan excepting the construction related to the lift at his own cost and risk. (c) The P.R. shall demolish all the red coloured constructions shown in the demolition sketch at 3rd floor plan excepting the construction related to the lift at his own cost and risk. Part ‘B’ – (a) The P.R. shall be allowed to make a Marcentile use of the red hatched areas excluding the area of the Mezzanine floor of the Medical shop subject to payment of charges at commercial rate. (b) The P.R. shall be permitted to be make a use of an area of 533.265 sft. used as Guest House subject to payment of charges at commercial rate. 2. The P.R. shall carry out the orders within one month from the date of its communication failing which the orders shall become inoperative and all the impugned constructions marked in red colour in the D/sketch of D/case No. 50-D/V/2002-03 of Box. – V shall be subject to demolition at the cost and risk of the P.R. 3. The P.R. shall swear an affidavit before Magistrate 1st Class to the effect that he shall abide by the existing rules and regulations of CMC and shall not take recourse to anything which may tantamount to violation of the CMC Act 1980 and Building Rules 1980 and shall also be held responsible for any misrepresentation of the records. 4. The P.R. shall submit a certificate obtained from C.M.C. empanelled structural engineer certifying therein the aspect of structural stability as well as the workmanship and quality of materials so for used in the construction of the premises. 5. The copy of the order shall be communicated to the P.R. Complainants as well as the ...Box-V for information and necessary action. Each pages of the order is signed and the D/sketch as well as .... countersigned.” The Ld. Tribunal, on an appeal filed by the respondent No.6/erstwhile Lessee modified the order dated 20th October, 2003 as follows:- “The P.R. shall demolish the entire mezzanine floor and entire 3rd floor which has been marked in red colour in the demolition sketch map at his own risk and cost. countersigned.” The Ld. Tribunal, on an appeal filed by the respondent No.6/erstwhile Lessee modified the order dated 20th October, 2003 as follows:- “The P.R. shall demolish the entire mezzanine floor and entire 3rd floor which has been marked in red colour in the demolition sketch map at his own risk and cost. The P.R. shall retain the entire construction made in the 2nd floor as mentioned in the D. Sketch map on furnishing certificate from Kolkata Municipal Corporation empanelled structural Engineer in regard to its structural stability and workmanship and quality of materials used in the construction and on swearing an affidavit that be shall abide by the existing Rules and regulations of Kolkata Municipal corporation and shall not raise any construction without permission of the Kolkata Municipal corporation authority and on depositing the appropriate cost for retention in Kolkata Municipal corporation. The Kolkata Municipal corporation authority shall prepare a fresh demolition sketch plan in pursuance to this order. Non-compliance of the conditions required for retention within one month from the date of receipt of fresh sketch plan by appellant the portion of the 2nd floor which has been ordered to be demolished by the Special Officer (Building) vide order dated 20.10.2003 shall remain unaltered and be given effect to. Interim order, if any, be vacated.” 10. Mr. Ashok Banerjee, Ld. Senior Counsel appearing for the writ petitioner submits that the petitioner/purchaser/M/s. AJ was not represented either before the Special Officer or before the Ld. Tribunal. Relying on judicial authorities on an obvious point, Mr. Banerjee submits that since there has been a failure of natural justice by denying the petitioner the right of audience before the Ld. Tribunal, the full facts connected to the Deed could not be judicially noticed. 11. Next, Mr. Banerjee submits that both the Special Officer and the Ld. Tribunal proceeded on the basis that no sanctioned building plan was produced by any of the parties. Therefore, no conclusion could have been drawn regarding the alleged unauthorized nature of any construction merely on the basis of a departmental demolition sketch map prepared without consulting the primary sanctioned plan. 12. Accordingly, as the Person (now) Responsible (PR), the petitioner/M/s. AJ, whose name stands mutated in the municipal records and is paying the regular property tax, ought to have been extended an opportunity of being heard in the demolition proceedings. Mr. 12. Accordingly, as the Person (now) Responsible (PR), the petitioner/M/s. AJ, whose name stands mutated in the municipal records and is paying the regular property tax, ought to have been extended an opportunity of being heard in the demolition proceedings. Mr. Banerjee tries to impress upon this Court the fact that the Deed makes mention of Schedule C which belongs to the respondent No.6/erstwhile Lessee on an ‘as is where is basis’. Taking this Court to Schedule D of the Deed, Ld. Senior Counsel points out that it includes the list of pending cases without making any reference to the impugned demolition proceedings then pending before the Ld. Tribunal. 13. Mr. Banerjee further submits that the Vendor covenanted with the petitioner to sell the said Premises in an unencumbered condition. The Vendor further undertook to indemnify the petitioner/purchaser in the event subsequent to the purchase any encumbrance of any manner whatsoever is noticed by the petitioner/purchaser. Mr. Banerjee therefore argues that beyond the terms of Schedule D (supra), the petitioner/purchaser was not required to be aware of any proceeding other than specifically those stated in the said Schedule D. 14. Therefore, the present petitioner/purchaser could ventilate its grievances connected to the final order in the BT Appeal dated the 20th of January, 2017 only when a notice under Sections 544 and 546 of the KMC Act was served on the petitioner through its partner for carrying out the demolition as directed in the BT Appeal. The notice was received by the petitioner/purchaser like a bolt from the blue on the 23rd of October, 2017 compelling the petitioner to rush to this Court by way of the present petition as affirmed on 8th November, 2017. 15. Next, relying on the authority of 55 CWN 509, Mr. Banerjee argues that the BT Appeal, in law, was a continuation of the original demolition proceeding as instituted before the Special Officer. Accordingly, in the BT Appeal all issues germane at the trial level of the Special Officer/first forum were live. The BT Appeal was filed in 2003 itself and decided nearly 15 years later on the 20th of January, 2017. At all points of time during the pendency of the BT Appeal, the Ld. Tribunal was never deprived of jurisdiction to consider issues confronting the rights as well as liabilities under the statute of the subsequent purchaser. The BT Appeal was filed in 2003 itself and decided nearly 15 years later on the 20th of January, 2017. At all points of time during the pendency of the BT Appeal, the Ld. Tribunal was never deprived of jurisdiction to consider issues confronting the rights as well as liabilities under the statute of the subsequent purchaser. It was always known to the KMC that the said Premises stood mutated in the name of the petitioner and, taxes were so realised. 16. Now, highlighting the effect of the Amendment by addition of a Proviso (for short referred to as the Amendment/Proviso) to Section 400 of the KMC Act having come into force w.e.f. 15th January, 2015, i.e. during the pendency of the appeal, it was always open to the Ld. Tribunal to apply the Amendment qua the parties then and, consequentially involved with the said Premises, including the present petitioner/purchaser. In this connection Ld. Senior Counsel relies heavily on the authority of 55 CWN 509 which, apropo, read as follows:- “With regard to the second contention of Counsel for the appellant, it will appear from Sections 5 and 6 which I have already set out that if at the date of the commencement of the Act, namely, the Amending Act of 1950, there were applications pending for relief under Section 18 (1) of the Act of 1950, the provisions of the Amended Act will apply. By amendment, in Section 18 (1) of the Act of 1950, for the words: "on the ground of default in payment of arrears of rent under the provisions", the following words have been substituted, namely: "on the ground that the interest of the tenant in such premises has been 'ipso facto' determined under the provisions of sub-section (3) of Section 12." Likewise, in sub-section '(5) for the words, "on the ground of default in payment of arrears of rent under the provisions", the following words have been substituted, namely: "on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of sub-section (3) of Section 12." In other words, by the amending Act the only persons who are given relief under Section 18are tenants whose tenancies have been determined by reason of their failure to pay three consecutive months' rent, that is to say, whose tenancies have 'ipso facto' been determined under the provisions of section 12 (3) of the Act of 1948. The amendments have been given retrospective operation. If therefore the amended sections are deemed to have been in operation at the date when Bachawat, J., made his order, it is quite clear that the applicant, the tenant, could not make this application because he was not a tenant whose tenancy had been determined by failure to pay rent for three consecutive months.” 17. Elaborating on the above recorded point, Mr. Banerjee submits that the amendment/Proviso (supra) came into force nearly two years prior to the Ld. Tribunal passing its ultimate order in January, 2017. The nature of the Amendment touches upon both the substantive and procedural aspects in the pending BT Appeal. Clearly, in the facts of the present case the Ld. Tribunal lost sight of the operation of the Amendment/Proviso as could be legally understood and applied. Since the pending BT Appeal deprived the original order of the Special Officer (Building) of its finality, it was always open to the Ld. Tribunal to consider the factual and legal aspects pro and contra to the parties ushered in by the Amendment/Proviso before delivering its ultimate verdict. 18. Appearing on behalf of the respondents/KMC, Mr. Ghosh, Ld. Counsel emphasizes that it is only the PR under the KMC Act who is required to be heard. The petitioner/purchaser never appeared in the proceedings before the Ld. 18. Appearing on behalf of the respondents/KMC, Mr. Ghosh, Ld. Counsel emphasizes that it is only the PR under the KMC Act who is required to be heard. The petitioner/purchaser never appeared in the proceedings before the Ld. Tribunal inspite of the fact that the petitioner purchased the Premises in 2011 and the BT Appeal is of 2003. 19. The definition of PR handed down from the 1951 KMC Act to its next avatar being the 1980 KMC Act, stands discussed in AIR 1982 Cal 314 . Therefore, Mr. Ghosh argues that the PR/occupier/the respondent No.6 and the appellant in the BT Appeal was afforded the opportunity of hearing along with the Vendor/erstwhile owner/complainant. 20. Additionally relying upon the authorities of 2016 (2) CLJ (Cal) 574 and 2001 (1) CHN 5, Mr. Ghosh points out that since the Court by its order dated 12th August, 2002 (supra) directed the KMC Authority to notice the law and take appropriate steps after hearing the parties connected to the said lis, at this stage after hearing has been completed and the appeal decided, the petitioner cannot be allowed to circumvent the sanctity and finality of the proceedings by a suave legal argument. 21. Assuming but not admitting that the petitioner/purchaser had the right of audience before the Ld. Tribunal subsequent to the Deed, at best the petitioner can be said to have stepped into the shoes of the complainant/Vendor/erstwhile owner of the said Premises. Therefore, connected to the unauthorized construction, the petitioner/purchaser cannot make out a case larger or better than the case made out by the complainant/erstwhile owner before the Municipal Commissioner. Dwelling on the scope of the KMC Act obligating the KMC to take steps in connection with the unauthorized building, Mr. Ghosh argues that since the petitioner was never a part of the original complaint, the petitioner cannot now insist to be heard at this stage. 22. Ld. Counsel points out that the demolition proceedings were initiated at the pre-amendment stage and, on the basis of the authorities as reported in AIR 1987 SC 537 , AIR 1983 SC 1143 and AIR 1983 SC 852 , submits that the BT Appeal was on the basis of facts as decided by the Special Officer in 2003, i.e. at the pre-amendment stage. The BT Appeal being a continuation of the original proceeding, the petitioner cannot at this stage be allowed to reopen the entire issue simply on the ground that the amendment permits the Municipality to take a fresh look. If such a course of action is permitted, Mr. Ghosh argues that it will have the common deleterious effect of unsettling settled proceedings. 23. Having heard the parties and considering the materials placed, this Court arrives at the following findings:- (A) That the principles of natural justice are not a straitjacket formula. For the principles of natural justice to be addressed in the facts of the present case, this Court can safely assume that being aggrieved by the order of the Special Officer (Building) dated 20th October, 2003, when the respondent No.6/erstwhile Lessee filed the appeal impleading the complainant/Vendor/erstwhile owner as a party respondent to the BT Appeal, the petitioner, post the Deed in December, 2011, must be deemed to have stepped into the shoes of its Vendor. (B) It is to be further noticed that the petitioner/M/s. AJ stood already described as an occupant on the ground floor of the said Premises vide the Deed dated 8th of December, 2011. Therefore, the fact is not lost on this Court that at the time of purchase the petitioner/M/s. AJ, being in physical occupation of the ground floor of the said Premises, cannot now pretend to be unaware of any whisper of an unauthorised construction activity being carried on by the respondent No.6/erstwhile Lessee on the second and third floors which were repeatedly red flagged by the respondents/KMC. (C) To the further mind of this Court the issue of natural justice raised by Mr. Banerjee can be answered in two ways. First, the petitioner/M/s. AJ could have, upon noticing the Amendment, taken steps in the BT Appeal instead of now pleading a selective amnesia connected to both facts and law. Second, there arises a solid legal presumption that the petitioner/subsequent purchaser could not have adopted a stand different from its Vendor/erstwhile owner/complainant in the demolition proceedings. (D) Therefore, this Court must observe that the petitioner was an adroit fence-sitter throughout the demolition proceedings culminating in the BT Appeal. It is superfluous to cite judicial authorities on the point that such fence-sitting deserves unqualified condemnation. (E) Accordingly, Issue (a) above stands answered against the petitioner. (D) Therefore, this Court must observe that the petitioner was an adroit fence-sitter throughout the demolition proceedings culminating in the BT Appeal. It is superfluous to cite judicial authorities on the point that such fence-sitting deserves unqualified condemnation. (E) Accordingly, Issue (a) above stands answered against the petitioner. (F) On Issue (c) relating to the benefit which the petitioner or, the parties to the proceedings before the Ld. Tribunal can claim on the strength of the Amendment stands, to the mind of this Court, persuasively answered by the authority of 55 CWN 509. (G) This Court is now required to address the issue of legal qualification or, alternately disqualification created by the Amendment affecting the parties to the demolition proceedings as well as the petitioner/subsequent purchaser thereto. It is by now trite that a prospective disqualification under a statute arising from an anterior misconduct may not be taken to mean that the statute shall act retrospectively. The related line of reasoning is also apropo the facts of this case that a prospective benefit under a statutory provision sometimes is dependent on antecedent facts which does not necessarily make the provision retrospective. The rule therefore against retrospective construction is not always applicable to a statute merely “because a part of the requisites for its action is drawn from time antecedent to its passing”. 24. The abovenoted legal principle can be best gathered from the authority of AIR 1961 SC 307 at Page 309 referring to Rex vs. Birwistle, etc. Justices as reported in (1881 (58) LJMC 158). In Re: Birwistle (supra) the question arose whether the Married Women (Maintenance in Case of Desertion) Act, 1886 could be held to apply, without express words, to desertions which took place prior to the Act. It was stated as follows:- “It was intended to cure an existing evil and to afford to married women a remedy for desertion, whether such desertion took place before the passing of the Act or not.” (H) It would be next useful for this Court to appreciate the nature of the rights intended to be conveyed under the Amendment/Proviso qua the affected parties. From the language of the Amendment it does transpire that the Amendment is, except providing a date from which it is intended to be brought into effect, otherwise of neutral language. From the language of the Amendment it does transpire that the Amendment is, except providing a date from which it is intended to be brought into effect, otherwise of neutral language. The authorities as reported in AIR 1955 SC 314 at Page 320, AIR 1966 SC 1423 at Paragraph 10 and 2009 (6) SCC 99 , provide a cogent answer in the facts of this case that while determining the language of the statute (read in this case the Amendment/Proviso) it is not essential that the Legislation must enact an express provision intending to apply a statute to a pending proceeding. This Court is left with no manner of doubt that the language of the Amendment/ Proviso is neutral thereby capable of touching the flow of the present adjudication. Paragraph 10 of AIR 1966 SC 1423 reads as follows:- “Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been tendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke, whose maxim-a new law ought to be prospective, not retrospective in its operation-is oft-quoted, courts have looked with disfavour upon laws which take away vested Tights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective'. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment. See Quilter v. Maple-son(1) and Stovin v. Fairbrass,(2) which are instances of new laws being applied. The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment. See Quilter v. Maple-son(1) and Stovin v. Fairbrass,(2) which are instances of new laws being applied. In the former the vested rights of the landlord to recover possession and in the latter the vested right of the statutory tenant to remain in possession were taken away after judgment. See also Maxwell's Interpretation of Statutes (11th pp. 211 and 213, and Mukerjee (K. C.) v. Mst. Ramaraton,(1) where no saving in respect of pending suits was implied when S. 26(N) and (O) of the Bihar Tenancy Act (as amended by Bihar Tenancy Amendment Act, 1934) were clearly applicable' to all cases without exception.” (I) Taking this discussion further on the authorities of AIR 1959 SC 577 at Paragraph 4 and AIR 2000 SC 2957 at Paragraph 20 it has been fairly emphasised that it is the duty of Courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to giving effect to the same. In AIR 1966 SC 459 at Paragraph 12, AIR 1993 SC 2135 at Paragraph 14 and AIR 1990 SC 981 at Paragraph 10 it has been noticed that upon a retrospective change in the statutory provisions during pendency of a reference before a Court, the Court is required to notice such retrospective change. The abovenoted Paragraphs are reproduced below in the order of their reference above:- AIR 1959 SC 577 “10. When this appeal came on for hearing the learned Advocate for the respondents took a preliminary objection that the suit filed by the plaintiff must in any event fail, having regard to the provisions of S. 14 of the Hindu Succession Act, 1956 (30 of 1956), hereinafter referred to as the Act. Hence the present appeal arising out of that suit must also fail. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had not taken place, then under the provisions of S. 14 of the Act, Veeravva became the full owner of her husband's estate and was not a limited owner thereof. Consequently, the appellant's suit was not maintainable. In, view of this submission we are of the opinion that the point raised by way of preliminary objection must first be considered and decided. It is well settled that an appellate court is entitled to take into consideration any change in the law (vide the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 FCR 84: (AIR 1941 FC 5).” (emphasis supplied) AIR 2000 SC 2957 “20. Now, it is well settled that it is the duty of a Court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (emphasis supplied) (See G.P. Singh, Interpretation of Statutes, 7th Ed.p.406). If, while a suit is pending, a law like the 1993 Act that the Civil Court shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold that the suit - even after its remand - cannot be disposed of by it.” AIR 1966 SC 459 “12. The respondent became on the enactment of Act 67 of 1948 entitled as a tenant to the diverse rights conferred by that Act. The right to claim that every contractual tenancy is statutorily extended for a period of ten years, the right to claim that the tenancy may not be determined otherwise than in circumstances mentioned in S. 14, and in case of protected tenants subject to restrict jobs imposed by S. 34, the right not to be deprived of possession otherwise than by an order under S. 29(2), were some of those rights vested in the respondent before Act 33 of 1952 was enacted. These and other rights were restored to the tenants retrospectively from the date on which Act 33 of 1952 was enacted by virtue of the express provision contained in the proviso to S. 43C. The Legislature having restored the rights originally granted under Act 67 of 1948 with retrospective operation from the date on which Act 33 of 1952 was. enacted, a person sued, before Act 13 of 1956 was brought into force, could in a pending suit set up the defence that he is entitled to the rights of a tenant or a protected tenant.” AIR 1993 SC 2135 “14. It is, thus, seen that under Section 11B(3) (supra) no refund shall be made except as provided for in Sub-section (2), as amended, notwithstanding anything to the contrary contained in any judgment, order or direction of the Appellate Tribunal or any court or in any other provision of the Act or the Rules made thereunder or under any other law for the time being in force. We are not persuaded to agree with learned Counsel for the respondent that the amended provisions of Section 11B can be applied only prospectively i.e. to refund claims made after the introduction of the amendment and would not apply to pending cases and refund claims filed prior thereto and that the prohibition contained therein cannot apply to the present case. The refund in the present case was ordered by the High Court in the writ petition by setting aside the orders of the statutory authority refusing the claim for refund, as barred by limitation. The judgment of the High Court is under appeal before us. It was during the pendency of the appeal in this Court that Section 11B of the Act was amended by Act 40 of 1991 with effect from 20.9.1991. The matter relating to refund was thus wide open before this Court in the present appeal and had not been finally settled when Act 40 of 1991 came into force. As per amended Section 11B, all pending claims for refund on or before 20.9.1991 are required to be dealt with and disposed of in accordance with the amended provisions of law. By operation of Section 11B(3), as amended, notwithstanding the order given by the High Court in the writ petition, no refund can be made to the respondent except in accordance with the provisions of Section 11B(2) of the Act. By operation of Section 11B(3), as amended, notwithstanding the order given by the High Court in the writ petition, no refund can be made to the respondent except in accordance with the provisions of Section 11B(2) of the Act. The direction to pay the amount to the respondent to the extent ordered by the Delhi High Court contained in the interim order of this Court dated 8.10.1982 was a conditional one and subject to the respondent (i) furnishing bank guarantee to the Collector of Central Excise, Meerut for the amount in question and (ii) that in case the respondent fails in this appeal, it shall be liable to pay interest @ 12% p.a. while refunding the amount to the appellant. Thus, the amount in question was directed to be paid to the respondent by this Court only as an interim arrangement, during the pendency of the appeal and could not be construed to be an order of 'execution' of the order and directions of the High Court. The conditional order made on 8.10.1982 did not finally conclude the "refund claim" of the respondent and cannot take the case of the appellant out of the purview of Section 11B(3) of the Act read with the first proviso to Section 11B(1), as amended. The argument on behalf of the respondent to the contrary is not only spacious but also fallacious. In this connection, it would also be advantageous to note a judgment of a three Judge Bench of this Court in Union of India and Ors. v. Jain Spinners Limited and Anr., as the law on the question of retrospectivity of Section 11B(3) has been settled therein. In Jain Spinners' case (Supra), refund was allowed by the Assistant Collector as a result of the approval of the classification list as filed by the assessee provisionally. Subsequently, on receipt of a test report from the Deputy Chief Chemist, the department took the view that the refund had been erroneously granted and sought to recover it by issuance of a notice. The Assistant Collector confirmed the demand for payment of the duty amount which had been erroneously refunded. The assessee questioned the order of the Assistant Collector through a writ petition before the High Court and also by filing an appeal before the Collector of Central Excise (Appeals). The Assistant Collector confirmed the demand for payment of the duty amount which had been erroneously refunded. The assessee questioned the order of the Assistant Collector through a writ petition before the High Court and also by filing an appeal before the Collector of Central Excise (Appeals). The High Court issued an interim stay in favour of the assessee against the demand confirmed by the Assistant Collector's order subject to the assessee depositing the amount of the demand in the court. The respondent (Union of India) was permitted to withdraw the amount by an interim order of the Court on 19.2.1986 subject to the condition that it would pay interest at bank rate and refund the amount alongwith interest within two months of the decision of the writ petition if the petitioner ultimately succeeded. The appeal filed by the assessee before the appellate authority, however, succeeded and consequential relief was ordered, "if otherwise admissible". The assessee, thereupon, filed an application before the Assistant Collector for refund of the duty plus interest as per the conditions contained in the interim order of the High Court. The assessee also filed an application before the High Court stating that in view of the appellate order, the writ petition no longer survived and sought a direction to the respondents to pay the amount along with interest. The High Court allowed the application of the assesee on 19.9.1991 and directed the Union of India to refund the amount due to the assessee. On 20.9.1991, Act 40 of 1991 came into force, prohibiting the grant of refund except in accordance with the provisions of Sub-section (2) of Section 11B. The Union of India filed an application stating that whether it was the High Court's order of 19.2.1986 or 19.9.1991, it was the duty of the Assistant Collector to satisfy himself that no part of the duty in respect of which refund was claimed was recovered by the assessee from any other person before making an order of refund. The Union of India sought two months time to consider the claim for refund in accordance with the amended provisions of Section 11B. The application was rejected by the High Court in view of the order dated 19.9.1991, which had been passed prior to the coming into force of the Amendment Act with effect from 20.9.1991. The Union of India sought two months time to consider the claim for refund in accordance with the amended provisions of Section 11B. The application was rejected by the High Court in view of the order dated 19.9.1991, which had been passed prior to the coming into force of the Amendment Act with effect from 20.9.1991. In November, 1991, the assessee filed a contempt petition alleging failure on the part of the officers of the Union of India to comply with the High Court's order granting refund to the assessee. When the petition came up for hearing on 18.3.1992, the counsel for the respondent submitted that the question regarding the applicability of the amended provisions was under consideration of the Government and he sought time. On 13.4.1992, the Assistant Collector passed an exhaustive order holding that since the assessee had passed on the incidence of duty to others, it was not entitled to receive the refund. The High Court at the time of hearing of the contempt petition on 20.4.1992 was apprised of the order of the Assistant Collector but it held that the decision of the Assistant Collector was not a decision of the Government and directed the Union of India to deposit the entire amount of refund with bank interest on or before 24.4.1992. It was in this background, that the Union of India filed an appeal before this Court against the order dated 20.4.1992 passed by the High Court to give effect to its earlier order dated 19.2.1986. This Court held that the High Court's order of 19th February 1986, under which alone the refund was claimed could not be an exception to the provisions of Section 11B(3) of the Act, and that the High Court could not have made any order, after September 20, 1991 directing the payment of refund contrary to the amended provisions of Section 11B(2) of the Act. The Court expressed the view that Section 11B(3) of the Act, as amended, would apply to all cases which were pending notwithstanding any order or decree or judgment of a court or tribunal or the provisions of any other law for the time being in force. The Court expressed the view that Section 11B(3) of the Act, as amended, would apply to all cases which were pending notwithstanding any order or decree or judgment of a court or tribunal or the provisions of any other law for the time being in force. This Court inter alia held ( AIR 1992 SC 1993 , para 24): “The only question before us is whether the impugned order dated 20.4.1992 of the High Court which is passed to give effect to its earlier order of 19.2.1986 is valid or not. Since, we are of the view that the order of 19.2.1986 attracts the provisions of Sub-section (3) of Section 11B of the Act which has come into force on 20.9.1991, the respondents are not entitled to take advantage of the said order unless they succeed in showing to the statutory authorities that they had not passed on the whole or any part of the duty in question to others. 19. Repelling on argument raised on behalf of the assessee that the amount deposited in court or withdrawn under orders of the court, would stand on a different footing then the orders of "refund" contemplated by Section 11B(3) of the Act, and would not fall within the mischief of the prohibition contained therein, Sawant J., speaking for the three Judges Bench observed (para 25 of AIR): “Further, if the contention advanced by the learned Counsel is accepted, it would defeat the amended provisions of the Act. It would then be open to the assessees to obtain orders from courts as in the present case, and instead of paying the assessed amount of duty to the authorities, deposit it in court and raise a plea that what is deposited in Court is not duty and the assessees are entitled to get the refund either directly from the court or if it is withdrawn by the authorities, from the authorities, notwithstanding that they have passed on the duty to others. It would create two artificial classes of assessees, viz., those who have paid the duty to the obtained orders from the courts for depositing the duties in courts. The former will, and the latter will not, be governed by the amended provisions of the Act. This would result in a discriminatory and invidious situation (emphasis supplied). It would create two artificial classes of assessees, viz., those who have paid the duty to the obtained orders from the courts for depositing the duties in courts. The former will, and the latter will not, be governed by the amended provisions of the Act. This would result in a discriminatory and invidious situation (emphasis supplied). The view canvassed by the learned Counsel will also open a new door for unjust enrichment by enabling the assessees to bypass the statutory provisions which have been specifically enacted to prevent the malpractice.” AIR 1990 SC 981 “10. In stating thus, the decision has set at rest the controversy as to entitlement of higher solatium to cases pending as on the date of commencement of the Amending Act. Section 23(2) was held to apply to awards made in between 30 April 1982 and 24 September 1984. Obviously they must be awards in acquisition commenced prior to the said dates. The award may be of the Collector or Court. One or the other must receive thirty per cent solatium on the market value of the land. More important, that the higher solatium could also be given by the High Court or the Supreme Court in appeals against such award.” (J) In the context of the above discussion, this Court must also notice the pronouncement of the Hon’ble Full Bench at Nagpur as reported in AIR 1950 Nagpur 177 at Paragraph 44 as well as subsequently in 2009 (8) SCC 646 that, notwithstanding the procedure involved, the central idea surrounding an appeal is that it is in the nature of a right. (K) Section 400 of the KMC Act Sub-Section (3) permits any person aggrieved by an order of the Municipal Commissioner made under Sub-Section 1 to prefer an appeal to the Ld. Tribunal within the period specified by the statute. Sub-Section 6 of Section 400 makes the order of the Ld. Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under Sub-Section (1) to be final and conclusive. (L) On a holistic reading of the appellate provisions as provided under Sub-Sections (3) and (6) of Section 400 (supra), this Court is left in no manner of doubt that the pendency of the appeal before the Ld. (L) On a holistic reading of the appellate provisions as provided under Sub-Sections (3) and (6) of Section 400 (supra), this Court is left in no manner of doubt that the pendency of the appeal before the Ld. Tribunal in all aspects is a continuation of the demolition proceeding initiated before the Municipal Commissioner and, having regard to the legal canons of construction referred to above in this discussion, the pending BT Appeal was required to notice the effect of the Amendment starting the 15th of January, 2015. (M) In the light of the above authoritative observations this Court must next notice the Amendment/Proviso itself, which, inter alia, reads as follows:- “Provided also that the Municipal Commissioner may by order, on such terms and conditions and on payment of such fees as may be prescribed by regulation, regularize the minor unauthorised erection or execution of any minor work without sanction under this Act, or minor deviation from the sanctioned plan or execution of nay minor erection or work in contravention of any sanctioned plan under this Act or the rules or the regulations made hereunder, as the case may be. Ins. By the Kolkata Municipal Corporation (Amendment) Act, 2014 w.e.f. 15.01.2015.” (N) Therefore, in the considered view of this Court, in the event the petitioner/subsequent transferee/purchaser is denied the consideration due under the Amendment/Proviso being capable of being so considered in the BT Appeal, to the mind of this Court the course of events may take a hypothetical turn raising a legal conundrum. For instance, any subsequent purchaser/transferee compelled to execute a demolition ordered by the Ld. Tribunal but, capable of being considered under the Amendment/Proviso during the pendency of a proceeding/appeal, may take recourse to the option of reconstruction and seeking a prospective consideration. (O) Issue (c) stands accordingly decided in favour of the petitioner. 25. However, this Court has not decided on the merits of the factual aspects of the demolition as ordered by the Ld. Tribunal. This Court only remands the matter to the Ld. Tribunal to test the facts in the light of the applicability of the Amendment/Proviso as discussed above. It is made clear that the Ld. Tribunal shall be free to arrive at its ultimate decision on merits. It will be open to the Ld. Tribunal. This Court only remands the matter to the Ld. Tribunal to test the facts in the light of the applicability of the Amendment/Proviso as discussed above. It is made clear that the Ld. Tribunal shall be free to arrive at its ultimate decision on merits. It will be open to the Ld. Tribunal to hear the party/parties connected to the facts considered necessary to the BT Appeal in the light of the above discussed legal position. 26. Till the Ld. Tribunal arrives at its decision as directed above, the order impugned dated 20th January, 2017 shall remain permanently stayed. It is expected that the Ld. Tribunal will complete the exercise within a period of three months from the date of receiving a communication of this order. (P) Issue (b) stands accordingly answered to the extent above. 27. WP 647 of 2017 stands thus disposed of. 28. There will be, however, no order as to costs. 29. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.