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High Court Of Calcutta
Jyotirmay Bhattacharya
SANJAY MEHTA - Appellant
Versus
KOLKATA MUNICIPAL CORPORATION - Respondent
W. P. 17011 Of 2006
Decided On : 10/18/2006
KOLKATA MUNICIPAL CORPORATION ACT - SECTION 400(1) - NOTICE TO SHOW CAUSE - LOCUS STANDI OF TENANTS - UNAUTHORIZED CONSTRUCTION - SECTION 400(8) - EXTRAORDINARY POWER OF MAYOR-IN-COUNCIL - RIGHT TO HEARING - INTERPRETATION OF "PERSON AT WHOSE INSTANCE" - SECTION 400(3) - RIGHT OF APPEAL - "ANY PERSON" DEFINED - TENANT'S RIGHT TO COMPENSATION - TENANT'S LACK OF STANDING TO OPPOSE DEMOLITION - MUNICIPAL AUTHORITY'S DUTY TOWARDS TENANTS - TENANTS NOT AFFECTED BY DEMOLITION ORDER - TENANTS LACK LOCUS STANDI TO CHALLENGE DEMOLITION ORDER.
Fact of the Case:
Tenants of an unauthorized building in Kolkata filed a writ petition challenging the demolition order issued by the Kolkata Municipal Corporation without providing them a notice of hearing. The petitioners argued that as occupiers of the building, they had a right to be heard under Section 400(1) of the Kolkata Municipal Corporation Act, 1980, before passing the demolition order.
Finding of the Court:
The court held that the petitioners, as tenants of an unauthorized construction, did not have the locus standi to challenge the demolition order passed under Section 400(1) or Section 400(8) of the Kolkata Municipal Corporation Act, 1980.
Issues: 1. Whether the petitioners, as tenants of an unauthorized construction, had the locus standi to challenge the demolition order passed under Section 400(1) or Section 400(8) of the Kolkata Municipal Corporation Act, 1980? 2. Whether the petitioners were affected by the demolition order?
Ratio Decidendi: 1. The court interpreted the expression "person at whose instance" in Section 400(1) of the Kolkata Municipal Corporation Act, 1980, to mean the owner, occupier, or any other person who is responsible for the unauthorized construction. 2. The court held that the petitioners, as tenants of an unauthorized construction, were not the persons responsible for the construction and, therefore, did not have the right to be heard under Section 400(1) of the Act. 3. The court further held that the petitioners were not affected by the demolition order as they did not have any legal right in the unauthorized construction. 4. The court distinguished between the right to hearing under Section 400(1) and the right to appeal under Section 400(3) of the Act, holding that only those persons who had the right to be heard under Section 400(1) could file an appeal under Section 400(3).
Final Decision: The court dismissed the writ petition, holding that the petitioners lacked the locus standi to maintain the petition.
( 1 ) THE petitioners who are the tenants of premises No. B/113/h/16/1, Bipin behari Ganguly Street, Kolkata-700 012 filed this writ petition, inter alia, praying for issuance of a writ in the nature of mandamus commanding the respondents, their servants, agents or employees not to take any step or further steps affecting in any way or manner the possession and enjoyment of the petitioners' respective holdings and structures in the said premises.
( 2 ) IN this wril petition, the petitioners have made a complaint against the municipal Authorities of the Kolkata municipal Corporation, as they are taking steps to demolish the building standing at the said premises without service of any notice regarding initiation of any demolition proceeding upon the petitioners.
( 3 ) THE legality of the order of demolition, has been challenged by the petitioners primarily on the ground of non-service of notice of hearing upon the petitioners. The petitioners allege that the Municipal Authority has not adhered to the mandatory provision regarding service of notice upon the petitioners for showing cause, before passing an order of demolition. The first proviso to Section 400 (1) of the Kolkata Municipal Corporation act, 1980 gives a mandate to the municipal Authority to serve a notice to show-cause even upon the occupier of the building before passing an order of demolition. The petitioners, thus, claim that the demolition order, cannot be sustained in law due to non-compliance of the mandatory provision of Section 400 (1) of the said Act relating to service of notice to show-cause upon the petitioners.
( 4 ) MR. Ghosh, learned Advocate, appearing for the Municipal Authority, raised a preliminary objection regarding the locus of the petitioners to maintain this writ petition. Mr. Ghosh submitted that since the petitioners are neither the owners nor the occupiers nor the persons responsible for such unauthorised construction, they cannot claim any right of hearing in connection with the demolition proceeding. By referring to the explanation added to sub-section (1)of Section 400 of the Kolkata Municipal Corporation Act, 1980, Mr. Ghosh submitted that it is only the owner, occupier or any other person who is responsible for such unauthorised construction, gets an opportunity of hearing before passing of any order of demolition.
( 5 ) MR. Ghosh contended that since the petitioners neither claimed that they constructed the said building nor they claimed that the building was caused to have been constructed by any other person at their instance, they cannot claim any right of hearing in a proceeding for demolition under Section 400 (1)of the Kolkata Municipal Corporation Act, 1980.
( 6 ) BY relying upon a Division Bench decision of this Court in the case of ram Awatar v. Calcutta Corporation, reported in AIR 1982 Cal. 314, Mr. Ghosh submitted that the Division Bench of this Hon'ble Court, after examining the scope and ambit of the similar provision of the Calcutta Municipal Act, 1951, held that "the person responsible" means a person who has something to do with the work of construction or who is in a position to comply with an order of demolition. It was further held therein that "the person responsible" does not include an occupier of the unauthorised construction who has nothing to do with the work of such construction or any addition to it. Relying upon the said decision, Mr. Ghosh contended that the occupiers of the building in question who have no connection whatsoever with the construction of the building, cannot claim any opportunity of hearing in connection with the demolition proceeding.
( 7 ) MR. Ghosh contended that if the said principles are applied in the present case, then the irresistible conclusion will be that the petitioners do not enjoy any right of hearing in connection with a demolition proceeding under Section 400 (1) of the said Act.
( 8 ) MR. Ghosh informed this Court that here is a case where th
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