2008 Supreme(SC) 145

2008(1) Supreme 702
Supreme Court of india
H.K. Sema & Lokeshwar Singh Panta, JJ.
Rajib Kumar Paul & Anr. — Petitioners
versus
Gurudas Mitra & Ors. — Respondents
Appeal (civil) 6831-6833 of 2001
Decided on : 30-01-2008

Headnote:Calcutta Municipal Corporation Act, 1980 – Sections 416 – Sanction of suit premises as Residential – Conversion of said premises from residential to commercial unauthorizedly without obtaining sanction from appropriate authority – Application by appellants praying for regularization of entire irregularity, requesting it to allow change of user of place from residential to commercial – Rejected by Special officer, Building Calcutta Municipal corporation directing demolition of unauthorized construction – Appeal - Dismissed – Writ petition – Single judge remanded case to Tribunal for fresh consideration – However Division bench set aside order of single judge and allowed appeal further directing Corporation authority to take immediate steps in terms of order of Special officer and confirmed by Tribunal – Appeal there against – Plea that appellant’s application for regularization of change of user from residential to commercial was not disposed of by authority and that Special officer, building without considering and disposing of application ordered demolition of unauthorized construction – Contention of appellants held unsustainable – Perusal of Order of Special Officer, Building, showed that Special Officer, Building, did take note of application filed by appellants and after having considered various provisions and after hearing parties passed order of demolition - Consideration of request of appellants in Application for regularization of unauthorized construction and unauthorized land was implicit in the order itself – Hence it could not be said that demolition order had been passed without considering the application – Appeal dismissed.(Paras 9, 10)

       Principles of natural justice – Violation of – Appeals filed by appellant Bank that appellant bank being not a party before single judge and division Bench there was a clear violation of principles of natural justice – However said contention was belied by fact - In order passed by Special Officer, Building, it was clearly recorded that one “A” , Advocate, appeared on behalf of Appellant Bank, a tenant in respect of 1st and 2nd Floor of premises in question – Appellant bank was functioning on 1st and 2nd floor of premises - Undisputedly, appellant-bank was a tenant of owner of house - Bank had to sail or drown with owner of house - When the entire building of four floors was ordered to be demolished, the 1st and 2nd floors alone could not survive - Hence there was no substance in contention of appellant-bank - Appeals having no merit, dismissed. (Paras 11, 12)

       Facts of the case:-

       1.Suit premises was herein in the instant case sanctioned as residential. Said premises was converted from residential to commercial unauthorizedly without obtaining sanction from appropriate authority. An application was filed by appellants praying for regularization of entire irregularity, requesting it to allow change of user of place from residential to commercial. Said Application was rejected by Special officer, Building Calcutta Municipal corporation directing demolition of unauthorized construction. Appeal there against was dismissed. On Writ petition, Single judge remanded case to Tribunal for fresh consideration. However Division bench set aside order of single judge and allowed appeal further directing Corporation authority to take immediate steps in terms of order of Special officer and confirmed by Tribunal.

       2.Present Appeal has been filed against said order of High Court.

       Findings of the Court :

       The Court held that perusal of Order of Special Officer, Building, showed that Special Officer, Building, did take note of application filed by appellants and after having considered various provisions and after hearing parties passed order of demolition. Consideration of request of appellants in Application for regularization of unauthorized construction and unauthorized land was implicit in the order itself. Hence it could not be said that demolition order had been passed without considering the application. Appeals dismissed.

       Result: Appeals dismissed.