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High Court Of Calcutta
M. M. Dutt, Monoj Kumar Mukherjee
RAM AWATAR AGARWAL - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
F. M. A. T. 540 Of 1982
Decided On : 04/07/1982
Calcutta Municipal Act, 1951 - Ss. 414, 414a, 557(1)(b), 560(1), 568 - Building Rules, Schedule XVI, Rules 59, 60 - Constitution of India, Arts. 14, 19(1)(g), 21, 300a - Principles of natural justice - Demolition of unauthorized construction - Service of demolition orders - Right to be heard - Right to alternative accommodation - Right to compensation - Legality of demolition order - Applicability of principles of election and merger.
Fact of the Case:
The appellant tenants of a 14-storey building constructed in violation of the Calcutta Municipal Act, 1951, and the Building Rules thereunder, challenged the demolition orders issued by the Corporation of Calcutta. The appellants claimed that the demolition orders were illegal as they were not served on them, that they were entitled to an opportunity of being heard before the demolition, and that the Corporation was required to provide them with alternative accommodation or compensation.
Finding of the Court:
1. The Corporation was entitled to proceed with the demolition of the unauthorized construction based on the first demolition order, as the subsequent unauthorized constructions were merely extensions of the original unauthorized construction and had no separate and independent existence. 2. The Corporation was not required to wait for the disposal of the appeals filed by the respondent before the Building Tribunal or to take any step for the vacation of the stay order, as the appeals and stay order had become infructuous and inoperative. 3. The demolition of the building on the strength of the first order would be quite consistent with the provisions of the Act and the Building Rules. 4. The Corporation was not required to serve copies of the subsequent demolition orders on the appellants, as they were not "persons responsible" within the meaning of Section 414(5) of the Act. 5. The appellants' contention that they should be given an opportunity of being heard before the enforcement of the demolition order was rejected, as Section 414 of the Act did not provide for such hearing and the principles of natural justice did not require it in the circumstances of the case. 6. The appellants' claim to a right to alternative accommodation or compensation was rejected, as the Act did not make any provision for such relief and the appellants were in unlawful occupation of the unauthorized building.
Issues: 1. Whether the Corporation was required to serve copies of the subsequent demolition orders on the appellants. 2. Whether the appellants were entitled to an opportunity of being heard before the demolition. 3. Whether the Corporation was required to provide the appellants with alternative accommodation or compensation. 4. Whether the demolition order was illegal.
Ratio Decidendi: 1. The Corporation was not required to serve copies of the subsequent demolition orders on the appellants, as they were not "persons responsible" within the meaning of Section 414(5) of the Act. 2. The appellants' contention that they should be given an opportunity of being heard before the enforcement of the demolition order was rejected, as Section 414 of the Act did not provide for such hearing and the principles of natural justice did not require it in the circumstances of the case. 3. The appellants' claim to a right to alternative accommodation or compensation was rejected, as the Act did not make any provision for such relief and the appellants were in unlawful occupation of the unauthorized building. 4. The demolition order was not illegal, as it was passed in accordance with the provisions of the Act and the Building Rules.
Final Decision: The appeal was dismissed. The Corporation was directed not to execute the demolition order for a period of thirty days from the date of the judgment to enable the owner and the occupiers of the building to vacate the same.
( 1 ) THE appellants, who are 60 in number, have preferred this appeal against the judgment of B. C. Ray J. , whereby the learned Judge dismissed the application of the appellants under Article 226 of the Constitution of India.
( 2 ) THE appellants claim to be the tenants of premises No. 174, Chittaranjan Avenue, Calcutta, which is a 14-storeyed building. It is not disputed that the said building has been constructed without any sanctioned plan and in violation of the provisions of the Calcutta Municipal Act, 1951, hereinafter referred to as the Act, and the Building Rules under Schedule XVI of the Act. Admittedly, one Smt. Durga Devi is the owner of the land, comprising the said building being premises No. 174, Chittaranjan Avenue, Calcutta. The respondent No. 11, Shyam Lal Agarwalla, took a lease of the land with an old structure standing thereon from the said Durga Devi on June 27, 1977. The old structure was demolished by him and, thereafter, he started the construction of the disputed building without any sanctioned plan and in violation of the Building Rules. The Corporation of Calcutta tried to prevent the respondent No. 11 from constructing the building in defiance of the provisions of the Act and the Rules, but all attempts of the Corporation were defeated by the respondent No. 11, and he succeeded in erecting the building up to the sixth storey. After the service of statutory notice, the Corporation started a demolition case and on May 15, 1978 the Deputy Commissioner of the Corporation passed an order of demolition.
( 3 ) THE said order of demolition dated May 15, 1978 could not stop the respondent No. 11, Shyam Lal Agarwalla, from going on with further constructions up to the 10th storey and, thereafter up to the 14th storey. On April 21, 1981, the Corporation passed two other demolition orders, one for the 7th to 10th storeys and the other for the 11th to 14h stories. In the meantime, Shyam Lal Agarwalla filed an appeal before the Building Tribunal of the Corporation against the first demolition order of the building up to the sixth storey. He also filed two other appeals before the Building Tribunal against the other two demolition orders, both dated April 21, 1981, relating to 7th to 10th stories and 11th to 14th stories.
( 4 ) ON May 29, 1981, the Building Tribunal dismissed the appeal of the respondent No. 11, Shyam Lal Agarwalla, filed against the first demolition order dated May 15, 1978 in respect of the demolition of the building up to the sixth storey. Against the said order of the Building Tribunal, the respondent No. 11 filed a writ application in this Court, which was dismissed by P. C. Barooah J. on June 22, 1981. Being aggrieved by the said order of Barooah J. , the respondent No. 11 preferred an appeal before a Division Bench of this Court under Clause 15 of the Letters Patent. The said appeal and an application for interim order were both dismissed by the Appeal Court by its judgment dated November 16, 1981. A special leave petition was filed by the respondent No. 11 before the Supreme Court against the judgment of the Appeal Court dismissing the appeal. On February 15, 1982, the Supreme Court summarily dismissed the special leave petition.
( 5 ) WHILE the appeal preferred by the respondent No. 11 against the judgment of Barooah J. was pending before the Appeal Court, he filed an application before the Building Tribunal of the Corporation praying for stay of the said two demolition orders dated April 21, 1981. At the hearing of the said application for stay, it was contended on behalf of the respondent No. 11 that the issue whether the construction of the building up to the 6th storey was illegal or not was sub judice before the High Court and as such, the Tribunal should not act on the assumption that such construction up to the 6th storey was unlawful and unauthorised. Considering the said contention, the President of the Building Tribunal by his order dated September 9, 1981
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