Laddu Gopal Bajoria and anr. Vs. the Kolkata Municipal Corporation and ors. - Court Judgment

Jyotirmay Bhattacharya, J.

1. Two proceedings were initiated by the Kolkata Municipal Corporation against the petitioners on the basis of the complaints made by the respondent Nos. 11 to 17 who introduced themselves as transferee owners of the premises No. 60/1, Ballygunj Circular Road, Kolkata-700 019.. One of such proceedings was initiated under Section 400(1) of the Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) for demolition of the alleged illegal construction made by the petitioners at the said premises. The other proceeding was initiated under Section 416 of the said Act for illegal change of user of the said premises by the petitioners without sanction and/or permission from the Municipal authority.

2. Admittedly National Motors of which Laddu Gopal Bajoria is the proprietor, is a tenant of the entire premises No. 60/1, Ballygunj Circular Road, Kolkata-19 comprising of 48 Cottachs of land together with a building and outhouses standing thereon.

3. Immediately after purchase of the said premises, the respondent Nos. 11 to 17 made a complaint vide their letter dated 23rd August, 2005 against the petitioner No. 1 for constructing a semipucca pandal illegally at the said premises without the consent of the said respondents and for illegal letting out of the property for marriage function, parties, kirtans and other social gatherings on payment of huge amounts.

4. On receipt of the said complaint, notice under Section 400 of the said Act was served upon the complainants, viz., the respondent Nos. 11 to 17 herein whereby the complainants were called upon to demolish a number of single storied structures illegally constructed in the said premises, within a fortnight from the date of service of the said notice.

5. this Court is still at a loss to understand as to why such a notice was served upon the complainants. However, the complainants replied to the said notice by their letter dated 29th December, 2005. The complainants in their said letter challenged the validity of the said notice on various grounds. According to them, the said notice is a vague one, as the said notice does not disclose and/or specify the portion of the construction which was illegally constructed by the petitioners in the said premises. Non supply of the precis detailing the unauthorised construction and non-disclosure of infringement of any specific building rules, was the other ground on which the validity of the said notice was challenged by the said complainants.

6. A similar notice was also served upon the petitioner No, 1 by the Municipal authorities vide their letter dated 26th December, 2005.

7. The petitioner No. 1 replied to the said notice under Section 400 of the said Act by his letter dated 2nd January, 2006 whereby the allegation regarding illegal construction at the said premises was denied by the petitioners. The petitioners invited the Municipal authority to hold a joint inspection at the said premises. The petitioners also requested the Municipal authority to supply a copy of the complaint on the basis of which such notice was issued. The Municipal authorities were also requested to withdraw and/or recall and/or rescind the said notice.

8. By the said notice, the petitioners were directed to stop unauthorized use of the said premises for any commercial purpose forthwith.

9. Since a portion of the ground floor of the said premises is being used by the petitioners unauthorisedly for commercial purpose in violation of provisions contained in Section 416(1) of the said Act, a notice under Section 416 of the said Act was served upon the petitioners.

10. On receipt of the said notice, the petitioners wrote a letter to the Special Officer (Building) on 24th January, 2006 requesting the said Officer to supply all the relevant papers and documents and inspection report to the petitioners for enabling them to file objection to the said notice. In the said letter, the petitioners, however, did not specify the documents which the petitioners required for filing objection to the said notice.

11. The petitioner No. 1, however, in his letter dated 30th January, 2006 requested the Municipal Commissioner to supply certified copies of the demolition sketch map, the enquiry report or reports prepared by the municipal officials upon conduct of a local inspection and all other documents upon which the department proposed to rely upon, in the said proceeding. Similar request was also made to the Deputy Engineer (Building South) and the Director General (Building) by the petitioner No.l by his letter dated 28th January, 2006.

12. On 31st January, 2006 when the said proceeding was fixed for hearing, the petitioners submitted an objection to both the aforesaid notices under Section 400(1) as well as under Section 416 of the said Act.

13. In the said objection, the petitioners categorically mentioned that the petitioners cannot deal with the aforesaid notices unless the certified copies of the demolition sketch map, purported enquiry reports and other documents on which the Corporation was seeking to rely upon in the said proceeding are supplied to the petitioners. The petitioners also reserved their right to make further appropriate submission on the issue of alleged unauthorised construction and the alleged unauthorised change of user upon receipt of the certified copies of those documents.

14. Similar notices were also served upon the respondent Nos. 11 to 17 who in their letter dated 29th December, 2005 practically supported the said notice by confirming the allegation regarding unauthorised change of user of the said premises by the petitioners.

15. The hearing of the said proceedings was ultimately concluded by the Special Officer without supply of the certified copies of those documents to the petitioners and ultimately by an order dated 15th March, 2006, the petitioners were directed to demolish the illegal constructions as mentioned in the departmental precis prepared during the inspection of the said premises, within a period of 15 days from the date of communication of the said order and in default the Kolkata Municipal Corporation will demolish the same at the costs and risk of the petitioners.

16. So far as the unauthorised change of user is concerned, it was also held by the Special Officer (Building) that the petitioners are using the said premises unauthorisedly for ceremonial purposes in violation of provision contained in Section 416 of the said Act.

17. The petitioners have challenged the legality and/or validity of the said order dated 15th March, 2006 passed by the Special Officer (Building) in D/Case No. 93-D/2005-06 in this writ petition.

18. Admittedly the said order is an appealable order. An order of demolition of an unauthorised construction under Section 400 of the said Act is appealable under Sub-section (3) of Section 400 of the said Act before the Municipal Building Tribunal appointed under Section 415 of the said Act. Similarly, an order of stoppage of unauthorised user of a premises passed under Sub-section (5) of Section 415 of the said Act is appealable under Sub-section (6) of Section 416 of the said Act before the Municipal Building Tribunal appointed under Section 415 of the said Act.

19. In this regard, I must point out that no order for stoppage of unauthorised user was passed by the Special Officer under Section 416(5) of the said Act in the instant case. As such, there is no scope for filing any appeal, so far as the unauthorised change of user is concerned, before the appellate forum.

20. Be that as it may, the scope for interference with such an order of demolition before this Court, in its Constitutional Writ Jurisdiction, is very limited.

21. In fact, Mr. Sen, learned senior counsel, appearing on behalf of the petitioners, in his usual fairness, submitted that the legality of an order cannot be challenged as a whole in this writ petition when remedy by way of appeal is available under the Statute itself. Mr. Sen, however, submitted that the scope of interference with the order of demolition by the High Court in the Constitutional Writ Jurisdiction is only restricted to a case where such an order is passed in violation of principle of natural justice. In support of such submission, Mr. Sen relied upon a decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and and Ors. reported in : AIR1999SC22 .

22. Mr. Sen pointed out to this Court that the petitioners repeatedly prayed for the certified copies of the demolition sketch map, purported enquiry reports and other documents on which the Corporation was seeking to rely upon in the said proceeding but none of those documents was supplied to the petitioners. As a result the petitioners could not contest the said proceeding effectively.

23. By referring to the first proviso to Section 400 of the said Act, Mr. Sen submitted that order of demolition cannot be passed unless the person responsible is given a reasonable opportunity of showing cause as to why such order shall not be made. Reasonable opportunity, according to Mr. Sen, is not a sham opportunity. Mr. Sen submitted that reasonable opportunity means an effective opportunity. Mr. Sen submitted that the petitioners were deprived of a reasonable opportunity of representing themselves in connection with the said proceeding, as the certified copies of the said documents were not supplied to the petitioners.

24. Mr. Sen contended that the impugned order cannot be retained on record, as the said order was passed without considering the sanctioned plan of the said building. According to Mr. Sen, the sanctioned plan of the said building is the basic document without which no one can come to the conclusion as to whether the impugned constructions were made beyond any sanctioned plan and/or in deviation of the sanctioned plan.

25. Mr. Sen pointed out that even the change of user of the building cannot be decided without considering the sanctioned plan itself, as for coming to the conclusion regarding the change of user of the building, the purpose for which sanction was granted under Section 396 of the said Act is required to be ascertained from the sanctioned plan itself.

26. Mr. Sen further pointed out from the impugned order itself that the sanctioned plan which is the basic document has not been taken into consideration at all while passing the order impugned. As such, the said order is absolutely an illegal order.

27. Mr. Sen, thus, prayed for quashing of the said order.

28. Mr. Pal, learned senior counsel, appearing for the respondent Nos. 11 to 17, supported the impugned order by submitting that reasonable opportunity of hearing was given to the petitioners in connection with the said proceeding. Mr. Pal submitted that the petitioners never applied for the certified copy of the sanctioned plan of the said building in connection with the said proceeding.

29. Mr. Pal further contended that the petitioners cannot suffer any prejudice for non-supply of the certified copies of the documents which were sought for by the petitioners, as the entire record was available to the petitioners for inspection in course of hearing of the said proceeding.

30. Mr. Pal submitted that when the true copies of the precis containing the description of the illegal construction and the violation of different provisions of the said Act and the Rules framed thereunder in the process of such construction, were admittedly served upon the petitioners, the petitioners cannot complain against the non-supply of the certified copies of the documents.

31. Mr. Pal further pointed out that the petitioners 'had the opportunity to inspect the documents which were relied upon by the Corporation in connection with the said proceeding and in fact the petitioners took inspection thereof in course of hearing of the said proceeding and as such the petitioners cannot make a grievance by complaining that they were deprived of a reasonable opportunity of hearing.

32. Mr. Pal further submitted that the demolition sketch plan forms part of the order of demolition and as such the petitioners are not entitled to get the demolition sketch plan prior to the passing of the demolition order. According to Mr. Pal, non-supply of the demolition sketch plan to the petitioners cannot be a ground for interference with the order impugned.

33. Mr. Pal further submitted that the assessment register of the said premises for the period of 1984-85 as well as the certified copy of the inspection report submitted by the Urban Land Ceiling Authorities on 19th February, 1997 will show the extent of the construction which were there at the said premises on the date of holding such inspection, i.e., on 19th February 1997 by the Urban Land Ceiling Authorities. As such, if those two documents are considered along with the demolition sketch plan and/or the precis prepared in connection with this demolition proceeding, then there will be no difficulty to ascertain the extent of the illegal construction made in the said premises after the said inspection.

34. Mr. Pal further submitted that the impugned construction was not referred to either in the assessment register or in the inspection report of the Urban Land Ceiling Authority. As such, the conclusion which has been arrived at by the Special Officer in the order impugned, is absolutely justified, as nothing could be produced by the petitioners to show that the impugned construction was either there even at the time of holding such inspection or such construction was raised by them thereafter with a valid sanctioned plan.

35. Thus, Mr. Pal submitted that the impugned order need not be interfered with in the facts of the instant case.

36. In fact, Mr. Pal also invited this Court to appoint a Special Officer for ascertaining the additional constructions which were made by the private respondents after 19th February, 1997 with reference to the Inspection report submitted by the Urban Land Ceiling authority. Such prayer cannot be accepted by this Court, as this Court sitting in its constitutional writ jurisdiction, cannot enlarge of the scope of adjudication of this writ petition.

37. Mr. Ghosh, learned advocate, appearing for the Kolkata Municipal Corporation, submitted that since the petitioners moved a writ petition earlier, inter alia, praying for issuance of the certified copies of the sanctioned plan as well as the other documents for preferring an appeal against the said order of demolition, and since such prayer of the petitioners was allowed by this Court and the documents have already been supplied to the petitioners for the aforesaid purpose, the petitioners cannot maintain the instant writ petition for challenging the said order of demolition before this Court without preferring an appeal.

38. Mr. Ghosh also submitted that reasonable opportunity of hearing was given to the petitioners in connection with the said proceeding. Mr. Ghosh contended that in connection with the demolition proceeding, the Corporation Is required to serve a notice under Section 400 of the said Act and a copy of the precis prepared in connection therewith upon the person responsible.

39. Mr. Ghosh pointed out that those two documents were served upon the petitioners. Mr. Ghosh, thus, contended that the petitioners cannot complain against the violation of principle of natural justice for non-supply of those documents which the petitioners are not entitled to get under the law.

40. Mr. Ghosh further pointed out that denial of sufficient opportunity of hearing, simplicitor, cannot be ground for interference unless substantial injury Is proved on account of such denial. According to Mr. Ghosh, the petitioners failed to make out any case of sufferance of any substantial injury and/or resultant prejudice for non-supply of the certified copies of those documents and as such interference is not necessary In the facts of the instant case. In support of such submission, Mr. Ghosh relied upon a decision of the Hon'ble Supreme Court in the case of Sohan Lal Gupta v. Asha Devi Gupta, reported in : (2003)7SCC492 .

41. Let me now consider the aforesaid submissions of the learned Advocates of the respective parties.

Re: Proceeding under Section 400(1) of the said Act.

42. Admittedly, the entire building is not unauthorised. It is also an admitted position that there is a sanctioned plan for the said premises. The said premises consists of a two storeyed building and several single storeyed buildings including outhouses.

43. The Corporation served a notice under Section 400 of the said Act upon the petitioners in respect of a number of single storied constructions in the said premises. The said notice does not specify the constructions in respect of which such notice was issued. The precis were also not served along with the notice upon the petitioners.

44. The complainants themselves in their reply being annexure 'P-10' to this writ petition complained against the vagueness of the said notice, as it neither specifies the illegal construction in respect of which such notice was issued nor specifies the provisions which were violated in the process of such construction.

45. Admittedly the petitioners were served with the precis of the illegal construction twice in course of hearing of the said proceeding. The Municipal authority claims that both the copies of the said precis are the true copies of the precis which was prepared by the Municipal authority in connection with the said proceeding.

46. Both the copies of the said precis which were received by the petitioners have been annexed to this writ petition. On perusal of the said copies of the precis, this Court finds a marked difference between the copies of the said two precis. In one of the copies of the said precis which is appearing at page 221 of this writ petition, the respective dates as to when the illegal construction was detected and also the date when the notice under Section 400(1) and Section 416(5) of the said Act were served upon the petitioners, were mentioned. The other copy of the precis which is appearing at page 240 of this writ petition, does not disclose the date when notice under Section 400(1) was served upon the petitioners. The service of notice under Section 416(5) of the said Act, is not mentioned at all in the said notice. The violation of Rules 109 and 110 was mentioned in the copy of the said precis, though such violation was not complained of in the copy of the precis appearing at page 221 of this writ petition. Certain discrepancies are also apparent with regard to the entries contained in the Column referring to Rule 57 between the two copies of the said precis.

47. Thus, this Court cannot come to the conclusion that the copy of the precis appearing at page 221 is identical with the precis appearing at page 240 of this writ petition.

48. When the petitioners in such a situation, prayed for certified copy of the said precis for ascertaining the exact complaint which the petitioners were required to meet in the said proceeding, the concerned authority ought not to have concluded the hearing of the said proceeding without supplying the certified copy of the precis which was prepared by the Municipal authority in connection with the said proceeding.

49. On perusal of the notice under Section 400(1) of the said Act, this Court holds that the said notice is a vague one, as it does not specify the construction in respect of which such proceeding was initiated. Supply of two different precis which does not tally with each other, further clouded the proceeding.

50. That apart, this Court agrees with Mr. Sen that the sanctioned plan is the basic document which should have been considered by the Special Officer before passing the order of demolition. Without considering the sanctioned plan, the concerned authority cannot come to the conclusion as to whether such construction was without any sanction or in deviation of the sanctioned plan. No doubt the certified copy of the assessment register for the relevant period as well as the inspection report of the authorities under the Urban Land Ceiling Act are the vital documents from which the legality of the impugned construction can be ascertained even in the absence of the sanctioned plan, but still then this Court holds that before coming to the conclusion regarding the legality of the said construction by relying upon the said documents, the certified copies thereof should have been supplied to the petitioners for enabling them to contest the said proceeding effectively.

51. Certified copy of the sanctioned plan was applied for by the petitioners in December, 2005. Direction was also passed by the concerned authority for supply of the certified copy of the said sanctioned plan to the petitioners. The petitioners deposited the requisite fees thereafter. But still then, the certified copy of the sanctioned plan was not supplied to the petitioners, though certified copy of the said sanctioned plan was given to the private respondents on 15th March. 2006.

52. Non-supply of the said certified copy of those documents to the petitioners, in my view, caused fatal to the proceeding, as the petitioners were deprived of a reasonable opportunity of contesting the said proceeding due to non-supply of the certified copies of the documents.

53. Thus, this Court holds that the principles of natural justice has been grossly violated in the instant case. By relying upon the principles laid down in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (supra), this Court holds that interference under Article 226 of the Constitution of India is necessary in this case, Since the resultant prejudice as a consequence of non-supply of the certified copies of those documents has been demonstrated in the instant case, the submission of Mr. Ghosh cannot be accepted.

Re: Proceeding under Section 416 of the said Act.

(i) The requirement of the sanctioned plan cannot be ignored altogether, inasmuch as, for coming to the conclusion regarding the change of user of the building, the said document is absolutely necessary, as the purpose for which the sanction was granted for construction of the said building, can only be ascertained from the sanctioned plan itself.

The building sanctioned plan of the said premises was not produced by either of the parties before the Special Officer (Building). The Special Officer (Building) also did not consider the building plan of the said premises at all. Without considering the building plan no one can ascertain the purpose for which the said plan was sanctioned. Unless the purpose for which such building plan was sanctioned is ascertained from the sanctioned building plan Itself, no one can come to the conclusion about the change of user of the said premises.

A building sanctioned plan dated 21st January, 1.921 has been produced before this Court to show that part of the building was sanctioned for petrol godown. The existing building has also been shown in the said building plan. The said plan no doubt gives an indication that the sanction was granted for both residential and commercial purpose. It appears from the said sanctioned plan that the premises in respect of which such sanction was granted was described as 60 Ballygunj Circular Road. The premises which is now the subject matter of this writ petition is 60/1 Ballygunj Circular Road. this Court is not in a position to find out as to whether the said sanctioned plan relates to the premises in dispute in this writ petition. As such, without Investigation of further materials, this Court cannot arrive at a definite conclusion regarding the allegation of change of user of the said premises, but this Court can certainly come to a definite conclusion that without taking note of the sanctioned plan, none can come to the conclusion regarding the alleged change of user of the said premises by the petitioners.

(ii) The circumstances which compelled the petitioners to submit their application for grant of certificate of enlistment for using the said premises for ceremonial functions before the Municipal authority has been explained by the petitioners in their objection being annexure 'P-21' to this writ petition at page 234 thereof but the same was not considered by the Special Officer at all at the time of passing of the Impugned order. Non-consideration of this part of the explanation vitiates the trial of the proceeding.

(iii) The copy of the inspection report on the basis of which notice under Section 416 of the said Act was issued, has also not been supplied to the petitioners. Thus, the petitioners were deprived of a reasonable opportunity of hearing for non-supply of the basic document on which the foundation of the proceeding rests.

Conclusion :

54. Accordingly, this Court holds that the order impugned cannot be sustained.

55. The impugned order, thus, stands set aside,

56. This order will not, however, prevent the Municipal authority from disposing of the said proceedings in accordance with law afresh after supply of the relevant documents to the petitioners, as indicated above.

57. In the event, the said proceedings are considered afresh, then the Special Officer will consider the same in accordance with law without being influenced by any of the observations made hereinabove.

The writ petition, thus, stands allowed.

Let the original file of the Corporation relating to the impugned proceeding be returned to Mr. Ghosh, learned Advocate of the Corporation.

Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.