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2010 Supreme(Cal) 1245
High Court Of Calcutta
Pratap Kumar Ray, Harish Tandan, JJ.
Biswajit Nandi - Appellant
Versus
Dilip Kumar Deb – Respondent
G.A. No. 1115 of 2010, A.P.O. No. 174 of 2010 AND W.P. No. 822 of 2007
Decided on : Oct 05, 2010
A.K.Bhattacharyya, Subrata Ghosh, S.Gangopadhyay, Pramit Ray, Sourav Kr.Mukherjee, Alok Ghosh, Swapan Kumar Debnath, Debanghsu Mondal, Biswarupa Mitra, Ashim Chatterji
A court has the power to take cognizance of subsequent events to mould the relief, but only if the three conditions laid down in Om Prakash Gupta case are satisfied.
Headnote:
KOLKATA MUNICIPAL CORPORATION ACT, 1980 - SECTION 400 - SUB-SECTION (3) - BUILDING RULES AND REGULATIONS - WRITS - SUBSEQUENT EVENTS - COURT'S POWER TO TAKE COGNIZANCE - WRIT APPLICATION - AMENDMENT - STATUTORY APPEAL - RIGHT TO PREFER - COURT'S INTERFERENCE - JUDICIAL REVIEW - ADJUDICATORY CONTOUR - ORDER OF DEMOLITION - LEGALITY AND VALIDITY - BUILDING TRIBUNAL'S JURISDICTION.
Fact of the Case:
A writ petition was filed seeking demolition of an unauthorized structure on the second floor of a building and restraining further construction without the approval of the Kolkata Municipal Corporation (KMC). During the pendency of the writ petition, a supplementary affidavit was filed alleging further unauthorized construction by fixing steel posts with steel truss. The learned Trial Judge, on the basis of the subsequent application and records of the Corporation, passed an order directing the demolition of the alleged unauthorized construction.
Finding of the Court:
1. The alleged fixing of steel posts with steel truss could not be considered as a subsequent event for adjudication in the present writ application as it was not related to the earlier cause of action or had any nexus with it. 2. The learned Trial Judge did not consider the report of the enquiry officer who passed the order of demolition to satisfy the adjudicatory contour of judicial review that there was a breach of building rules and regulations. 3. The order of demolition was assailable before the Appellate Authority prescribed under the statute, namely, the Kolkata Municipal Corporation Act, 1980. 4. The order directing demolition straightway deprived the appellant of preferring an appeal under Section 400(3) of the Kolkata Municipal Corporation Act, 1980. 5. The order of the learned Trial Judge was not legally sustainable.
Issues: 1. Whether the alleged fixing of steel posts with steel truss could be considered as a subsequent event for adjudication in the writ application? 2. Whether the learned Trial Judge erred in not considering the report of the enquiry officer who passed the order of demolition? 3. Whether the order of demolition was assailable before the Appellate Authority prescribed under the statute? 4. Whether the order directing demolition straightway deprived the appellant of preferring an appeal under Section 400(3) of the Kolkata Municipal Corporation Act, 1980?
Ratio Decidendi: 1. Subsequent events must be related to and have an impact on the issue raised in the original application. 2. A court has the power to take cognizance of subsequent events to mould the relief, but only if the three conditions laid down in Om Prakash Gupta case are satisfied. 3. The alleged fixing of steel posts with steel truss was not related to the earlier cause of action or had any nexus with it, and hence could not be considered as a subsequent event for adjudication in the writ application. 4. Every order must be with reasons so that a litigant may understand the application of the law on the factual matrix thereof, to agitate the issue for appropriate remedy to a higher forum. 5. The order of demolition was assailable before the Appellate Authority prescribed under the statute, and the order directing demolition straightway deprived the appellant of preferring an appeal under Section 400(3) of the Kolkata Municipal Corporation Act, 1980.
Final Decision: The appeal was allowed, and the impugned order was set aside and quashed. The court directed that the Building Tribunal should dispose of the appeal and the application filed under Section 5 of the Limitation Act expeditiously.
1. HEARD the learned Advocates appearing for the parties.
2. ASSAILING a portion of the judgment and order dated 10th March, 2010 passed in W.P. No. 822 of 2007 this appeal has been preferred.
The portion of the impugned order reads such :
"In that view of the matter I give a final opportunity to the private respondent to demolish the unauthorized structure as mentioned in the order of the Special Officer (Building) dated 28th March, 2008 within a period of 48 hours from the date of service' of a copy of this order failing which the writ petitioner will immediately notify the Kolkata Municipal Corporation who upon such notification will effect such demolition within a period of two weeks from the date of the said notification, On the requisition of the Kolkata Municipal Corporation the local police authorities the respondent No. 3 will render prompt assistance so that the order is carried out within the time specified therein."
3. THE writ application was filed by the respondent No. 1 praying the following reliefs :
"a) Compliance rule 26 be dispensed with ;
b) Declaration that the impugned structure on the second floor of the said premises being Premises No. 9, Latu Babu Lane, Kolkata-700 006 is illegal, unauthorized and liable to be demolished.
c) A writ of and/or writs in the nature of mandamus do issue commanding the respondents and each of their men and/or agents and/or servants to do the following : i) To take necessary steps to demolish the impugned structure on the second floor in respect of premises No. 9, Latu Babu Lane, Kolkata-700006 in terms of the order dated 22nd April, 1997; ii) THE respondent No. 4 and/or each of their men and/or agents and/or servants be restrained from doing any construction without the approval of the Kolkata Municipal Corporation in respect of any portion of premises No. 9, Latu Babu Lane, Kolkata-700006;
d) A writ of and/or in the nature of Prohibition do issue prohibiting the respondent No. 4 and/or each of their men and/or agents and/or servants from making further construction in respect of any portion of the said premises being premises No. 9, Latu Babu Lane, Kolkata-700006;
e) A writ of and/or in the nature of certiorari commanding the respondents to transmit all records pertaining to the instant case to this Hon'ble Court so that conscionable justice may be rendered to your petitioner;
f) Rule Nisi in terms of prayers hereinabove ;
g) Injunction restraining the respondent No. 4 and/or each of their men and/or agents and/or servants from making any further construction in respect of any portion of the said premises being premises No. 9, Latu Babu Lane, Kolkata-700006 in any manner whatsoever;
h) Ad interim orders in terms of prayers hereinabove;
i) Cost and incident of this application be borne by the respondents;
j) Such further and/or order or orders be passed and/or direction be given as this Hon'ble Court may deem fit and proper."
4. IN course of hearing a supplementary affidavit was filed bringing notice of the Court that further unauthorised construction was made over the roof of the 1st floor by fixing the steel post attached with steel truss. IN the rejoinder of the said supplementary affidavit a point was taken by the present appellant that it was not at all any permanent construction but temporary in nature for the purpose of celebrating Annapurna Puja Festival by changing the bamboo pole to the steel post. IN course of hearing of that issue production of record of the Corporation was made. Learned Trial Judge on the basis of subsequent application and records of Corporation passed an order impugned before us directing to demolish the construction. So far as the alleged unauthorised construction of 1st floor which at the present moment is the subject matter of appeal pending before the Building Tribunal. It is the case of the appellant before us that by a supplementary affidavit without amendment of the writ application, the issue about alleged further construction by fix
