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Calcutta High Court · body

2020 DIGILAW 123 (CAL)

Sanjib Dutta v. Lalit Himatlal Kampani

2020-02-03

SHAMPA SARKAR

body2020
JUDGMENT 1. This revisional application has been filed by an added party to a proceeding being B.T. Appeal No.39 of 2011 pending before the learned Municipal Building Tribunal, Kolkata Municipal Corporation. By the order impugned the learned Tribunal upheld the order of the Special Officer (Buildings) directing demolition of the structures belonging to the petitioner. The learned Tribunal upheld the said order upon perusal of the records and the written arguments filed by the respective parties and upon recording that oral submission were not required to be made. 2. It is the contention of the petitioner that the vendor of the petitioner was the original appellant before the learned Tribunal. Subsequent to the purchase, the petitioner was added as a respondent on the basis of an order passed by this Court in W.P. No.2222 (W) of 2016 dated February 25, 2016 wherein the petitioner was allowed to protect his title to the land as also protect the construction which was the subject matter of the appeal. It was directed that the petitioner be heard. The petitioner was added as a party in the appeal. Subsequently, the petitioner preferred another writ petition being W.P. No.13763 (W) of 2017 being aggrieved by an order dated April 18, 2017 passed by the Municipal Building Tribunal in B.T. Appeal No.39 of 2011. It was the contention of the petitioner that he should be allowed to appear before the Special Officer (Buildings) for re-hearing as the demolition order was passed when he was not a party to the proceeding. The said writ petition was disposed of with a direction upon the Municipal Building Tribunal to allow the petitioner to participate in the appeal as the petitioner being the subsequent purchaser had a right to protect his title in the land and the construction made thereon. The learned Judge was also pleased to observe that, as the petitioner was already in possession of the relevant documents, the hearing of the appeal should not be stalled simply on the ground that separate sets of documents were required to be served on the petitioner. This Court observed that the petitioner would be allowed to participate and intervene in the proceeding. All the points available to the petitioner could be agitated before the Tribunal affecting the legality of the order passed by the hearing officer. This Court observed that the petitioner would be allowed to participate and intervene in the proceeding. All the points available to the petitioner could be agitated before the Tribunal affecting the legality of the order passed by the hearing officer. The Municipal Tribunal was further directed to dispose of the proceeding as expeditiously as possible by providing adequate opportunity of hearing to the parties. Thereafter the petitioner was added to the proceeding. The hearing was concluded and the verdict of the Tribunal was reserved by an order dated June 22, 2017 and July 14, 2017 was fixed for delivery of judgment. 3. It is an admitted position that the parties had made their arguments before the learned Tribunal and the respondent no.4 had declined from making any further submission on June 22, 2017. Thereafter, the petitioner filed an application for transposition to the category of appellant and not the respondent. The said application was rejected. The petitioner also filed an application before the learned Tribunal for filing a cross objection and a memorandum of cross objection. The learned Tribunal allowed the application. Challenging the aforesaid order allowing filing of a memorandum of cross objection, the opposite party no.1 preferred a revisional application before this Court. The said revisional application was allowed. Aggrieved, the petitioner preferred a Special Leave Petition before the Honble Apex Court. The said Special Leave Petition was dismissed. Thereafter the petitioner approached the Tribunal by filing an application for regularization under the third and fourth proviso to Sub-Section (1) of Section 400 of the Kolkata Municipal Corporation Act, 1980. The said application was taken on record by an order dated April 17, 2018 and August 9, 2018 was fixed for hearing of the said application by the learned Tribunal. Thereafter, several dates were fixed for hearing of the said application. By order dated November 30, 2018 the Tribunal rejected the said application as being misleading and vague and the learned Tribunal fixed January 7, 2019 as the date for delivery of judgment. By the order dated January 7, 2019 the order of demolition passed by the Special Officer (Buildings) was upheld. Both the orders dated November 30, 2018 and January 7, 2019 are under challenge before this Court. 4. Mr. By the order dated January 7, 2019 the order of demolition passed by the Special Officer (Buildings) was upheld. Both the orders dated November 30, 2018 and January 7, 2019 are under challenge before this Court. 4. Mr. B.R. Bhattacharya, learned Senior Advocate, appearing on behalf of the petitioner submitted that the order dated November 30, 2018 was bad in law as no reasons were assigned by the learned Tribunal while dismissing the application for regularization and the order dated January 7, 2019 was bad because the learned members constituting the Tribunal did not hear the matter but passed the order on the basis of the records and written submissions of the parties. 5. Mr. Sarkar, learned senior advocate, appearing on behalf of the opposite party no.1 submitted that the unauthorized construction complained of and directed to be demolished by the Special Officer (Buildings) in a proceeding under Section 400 of the Kolkata Municipal Corporation Act was a matter of fact which the petitioner could not improve by adducing further arguments. That, even if, the petitioner was allowed to make further oral submission before the authorities, the unauthorized construction could not be regularized and the result of the appeal was a foregone conclusion, inasmuch as, the law is well-settled that if there was an unauthorized construction then as per the series of judgments pronounced by the Honble Apex Court, the said construction could not be allowed to continue and demolition was an inevitable consequence. 6. According to Mr. Sarkar there has not been violation of natural justice, inasmuch as, the petitioner did not have a legitimate expectation of being heard. The petitioner was allowed to file his written arguments and the evidences were already on record and the learned Tribunal passed the order upon consideration of all such relevant documents and the submissions made by the petitioner in his written notes of arguments. 7. Mr. Sarkar further submitted that it has been held in the decision of Cinnamond and Others vs. British Airports Authority reported in (1980) 2 All ER , that personal hearing was not a matter of right before an administrative authority and all that the Court should see was whether the the authority passing the order has acted fairly and a fair and reasonable opportunity was given to the party, aggrieved by the order to make out his case. According to Mr. According to Mr. Sarkar, the order of demolition could not be altered in view of the admitted position that the construction was unauthorized even if a hearing was given to the petitioner. 8. Mr. Sarkar further relies on the decision of Honble Apex Court in the matter of Canara Bank vs. V.K. Awasthy reported in AIR 2005 Supreme Court 2090 and submits that the oral hearing of the petitioner would be an empty formality. 9. Mr. Sarkar has drawn the attention of the Court to various paragraphs of the application for vacating which has been treated as the affidavit-in-opposition. It has been categorically stated that the petitioner filed his written arguments and by doing so had foregone his right to be heard personally and/or through his learned advocate. 10. Mr. Sarkar further submitted that the conduct of the petitioner should be taken into account, inasmuch as, the petitioner had stalled the proceeding by filing frivolous applications one after another. Thus, the petitioner according the Mr. Sarkar was not entitled to any relief. In support of the order impugned Mr. Sarkar categorically submitted that the order read as a whole would not appear to be perverse and did not suffer from any illegality or material irregularity. 11. Mr. Banerjee, learned advocate appearing on behalf of the Kolkata Municipal Corporation also submits that the petitioner did not have any right or equity over the constructed portion which was unauthorized. He relied on a decision of the Honble Division Bench of this Court in the matter of Giasuddin vs. Mayer in Council (Building) reported in 2001 (1) CHN 4 . 12. Having considered the arguments advanced by the parties, it is an admitted position that the hearing was concluded on June 22, 2017. The petitioner was allowed to be added as a party to the proceeding and make his submission by orders of this Court. Hearing was also directed to be given to the petitioner. The petitioner had stepped into the shoes of the original appellant. The petitioner does not deny the fact that the members of the Tribunal who were hearing the appeal had heard the petitioner and had concluded the hearing on June 22, 2017 and reserved the judgment by fixing July 14, 2017 for delivery of judgment. The petitioner had stepped into the shoes of the original appellant. The petitioner does not deny the fact that the members of the Tribunal who were hearing the appeal had heard the petitioner and had concluded the hearing on June 22, 2017 and reserved the judgment by fixing July 14, 2017 for delivery of judgment. Thereafter, during the pendency of the interlocutory applications before the learned Tribunal the members changed and new members were inducted to preside over the Tribunal. Admittedly, the order impugned was passed by the newly inducted members and records do not reveal that any oral hearing was advanced by either of the parties before the said members of the learned Tribunal. There is a rule which has been titled as the ' Calcutta Corporation Tribunal (Conduct of Business) Rules, 1965 . Rule 12 provides as follows: '12. Procedure for hearing appeals:- (1) Where both the appellant and the respondent appear when the appeal is called on for hearing, the appellant shall first be heard in support of the appeal. (2) The Tribunal shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. (3) (a) If the appellant does not appear when the appeal is called on for hearing, the Tribunal may dismiss the appeal. (b) Where an appeal is dismissed for non-appearance of the appellant he may apply for re-admission of the appeal and if he satisfies the Tribunal that he was prevented by sufficient cause, from appearing when appeal was called on for hearing, the Tribunal shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (4) (a) If the appellant appears and the respondent does not appear when the appeal is called on for hearing, the Tribunal shall, after hearing the appellant, proceed to dispose of the appeal. (b) Where an appeal is heard in the absence of the respondent and judgment is pronounced against the respondent, he may apply for re-hearing the appeal and of he satisfies the Tribunal that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the Tribunal shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit. (5) If, at the time of hearing the appeal, it appears to the President that any person, who had presented his case before the order appealed from was passed but who has not been made a party to the appeal, is interested in the result of the appeal, the President may adjourn the hearing and direct the appellant to make such person a respondent. (6) The parties to an appeal shall not be entitled to produce before the Tribunal any evidence, oral or documentary, in addition the evidence placed before the Commissioner : Provided that if- (a) the Commissioner has refused to take evidence which, in the opinion of the president, ought to have been taken, or (b) the President considers the production of any evidence to be essential in order to enable the Tribunal to pronounce judgment, the President may, after recording his reasons therefor, allow such evidence to be produced.' 13. A bare perusal of the rule will indicate that the Tribunal while functioning as a quasi-judicial as also an appellate authority ought to give a hearing to the parties. The appellant shall first be heard in support of the appeal, the respondent shall be allowed to respond thereafter and the appellant was subsequently entitled to reply. Thus, the rules have provided a procedure to be followed by the learned Tribunal while disposing of an appeal. It is not disputed that the newly constituted members did not hear the parties as the same has been reflected in the order impugned. The learned Tribunal did not think it necessary to hear the parties as the Tribunal proceeded on the basis of the documents already on record as also the written arguments. The decision in Cinnamond and Others (supra) was delivered under different set of facts, inasmuch as, in that case the unlicensed taxi drivers who were touting for fares and were not entitled to enter the airport were disallowed from entering inside the airport premises by the Airport Authority on the basis of a bye-law empowering them to do so. This was an administrative order which was challenged in the ground of denial of natural justice amongst others. The Court held that the administrative authority had the power to deny these unlicensed taxi drivers from continuing illegal activities and several warnings were given to them yet they continued such activity. This was an administrative order which was challenged in the ground of denial of natural justice amongst others. The Court held that the administrative authority had the power to deny these unlicensed taxi drivers from continuing illegal activities and several warnings were given to them yet they continued such activity. Thus the order debarring them from entering the airport was not in violation of the principles of natural justice as the administrative authority was well within its power to do so, and the persons affected did not have a legitimate expectation to be heard. 14. Under such circumstances, when there was repeated violation of the rules by the taxi drivers, the learned court held that the taxi drivers need not be heard. With regard to the decision in Canara Bank (supra), Their Lordships had held that whether hearing would be a mere formality or not was a matter to be determined under the facts and circumstances of each case. Thus, the decisions relied upon by Mr. Sarkar does not help the opposite party no.1. 15. In this case there are rules which provide that the parties should be heard by the Tribunal. Once the constitution of the Tribunal changed and the members who had fixed the date for delivery of judgment were replaced by another set of members justice would be sub-served if the newly constituted bench rehears the petitioner as also the other parties before the learned Tribunal. 16. This Court however, is conscious of the fact that the petitioner has dragged the proceeding by filing numerous applications and such behavior is reprimanded. The application for regularization which was filed by the petitioner on April 17, 2018 was not disposed of with reasons, but was rejected with a single observation that the same was misleading and vague. Subsequently, the order impugned dated January 7, 2019 was passed without hearing the petitioner. 17. Under such circumstances, the orders dated November 30, 2018 and January 7, 2019 are set aside and quashed. The matter is remanded back to the learned Tribunal for a fresh hearing of B.T. Appeal No.39 of 2011 as also the application for regularization dated April 17, 2018. It is made clear that the learned Tribunal will dispose of the pending application as indicated hearinabove as also the appeal in accordance with law and on their own merits. The petitioner will not be granted any unnecessary adjournments. It is made clear that the learned Tribunal will dispose of the pending application as indicated hearinabove as also the appeal in accordance with law and on their own merits. The petitioner will not be granted any unnecessary adjournments. The records of the hearing before the Special Officer (Buildings) if have already gone down from the Appellate Tribunal, should be sent by the Corporation to the learned Tribunal within seven days from the date of receipt of communication of this order and the learned Tribunal will dispose of the application and appeal within 30 days from the date of receipt of the records. 18. The revisional application is allowed. There will be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.