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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Susama Saha – Petitioner
Versus
Kolkata Municipal Corporation & Ors. – Opposite Parties
A.S.T. No. 193 of 2015 with C.O. Nos. 2234, 3244 of 2015
Decided On : 02-12-2015
DELEGATION OF POWER - SPECIAL OFFICER (BUILDING) - COMPETENCY - KOLKATA MUNICIPAL CORPORATION ACT, 1980 - SECTIONS 14, 17, 18, 19, 24, 48, 400(1) - REGULATIONS - DE-FACTO DOCTRINE - APPLICABILITY.
Fact of the Case:
The Petitioner has challenged an action taken against them under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 alleging that they have illegally and unauthorizedly undertaken the construction work in violation of the different provisions of the said Act and the Rules framed thereunder. The Special Officer (Building) is acting as a delegatee to the Municipal Commissioner and hearing the proceeding and passing orders for demolition in the event such construction violates any of these statutory provisions.
Finding of the Court:
1. The order of the Municipal Commissioner to delegate his powers and functions under sub-Section 1 of Section 400 of the Code is bad, illegal and contrary to the provisions contained under Section 48 of the Act. 2. The De-Facto Doctrine has its applicability where there exists an office but the person who is appointed to hold such office is not legally appointed and the actions/decisions and the orders passed by him before the declaration of his appointment as void is saved under such doctrine. 3. The De-Facto Doctrine cannot be extended even to a case where the post is non-existent and have been created without an authority of law and the person appointed on such post discharges the functions and duties in such capacity.
Issues: 1. Whether the Special Officer (Building) is an officer or an employee of the Corporation? 2. Whether the Municipal Commissioner can delegate its power to a person who is neither an officer nor an employee of the Corporation? 3. Whether the order of demolition, passed in assumption of such power which is invalid, all actions including the orders by the Special Officer (Building) is per-se illegal, void and unsustainable? 4. Whether the Special Officer (Building) is an officer appointed by invoking the provisions of the Act and therefore the delegation by the Municipal Commissioner under Section 48 is valid, legal and cannot be struck down?
Ratio Decidendi: 1. The Municipal Commissioner is empowered to delegate any of its powers and functions including the powers and functions conferred under sub-Section (1) of Section 400 to any other officer or any employee of the Corporation and such delegation of power can only be made by an order of the Municipal Commissioner envisaged under Section 48 of the Act. 2. The Special Officer (Building) is not included within the category of the officers depicted in sub-Section (1) of the Section 14 of the Act. 3. The Municipal Commissioner may not seek recommendation from the Municipal Service Commission in case of an appointment of an officer coming under Category A post if the appointment is for a term of six months. 4. The Municipal Commissioner enjoins unfettered right to appoint a person in “A” Category post for a period of six months. 5. The De-Facto Doctrine is introduced in the legal parlance as a matter of policy and necessity to protect the interest of the public and the individual where those interests were involved in the official acts of a person exercising the duties of an office without being unlawful officer.
Final Decision: The Revisional Applications are allowed. There shall be no order as to costs.
Harish Tandon, J.
1. A short but interesting point is raised in this Revisional Application touching the competence and/or powers of the Special Officer (Building) to discharge the statutory duty and function of the Municipal Commissioner vested under section 400(1) of the Kolkata Municipal Corporation Act, 1980 as delegatee. An action has been taken against the Petitioner under Section 400(1) of the said Act alleging that they have illegally and unauthorizedly undertaken the construction work in violation of the different provisions of the said Act and the Rules framed thereunder. The Special Officer (Building) is acting as a delegatee to the Municipal Commissioner and hearing the proceeding and passing orders for demolition in the event such construction violates any of these statutory provisions. Such order is amenable to be challenged before the Building Tribunal by way of an appeal and against the Appellate Order further challenge can be made before the High Court under Article 227 of the Constitution of India. This is how the matter has come up before this Court and a point is raised at the behest of the Petitioner on the validity of the powers exercised by the Municipal Commissioner under Section 48 of the said Act.
2. The object and the purpose behind the incorporation of the Kolkata Municipal Corporation Act was to amend and consolidate the law relating to municipal affairs in the city of Kolkata. The said Act contains the exhaustive provisions relating to constitution of the Corporation, powers and functions of the Municipal Authorities, election of the Councillors, conduct of business, maintenance of the municipal records, imposition of taxes and recovery thereof and providing civil amenities including the town planning and maintenance of the buildings and so on so forth.
3. Before proceeding to address the core issue as above, it would be relevant and profitable to narrate the different provisions of the said Act. Section 2 of the said Act contains the definition Clause assigning meaning of the different words or expressions used in the said Act for the purpose of interpretations and the meaning thereof. Section 3 of the Act postulates the Municipal Authorities for the purpose of carrying out the provision of the said Act and to be comprised of the Corporation, Mayor-in-Council and the Mayor. Sub-Section (2) of Section 4 of the Act specifies the Corporation as a body corporate with perpetual succession and a common seal and may sue or be sued in such name. It shall be so appointed by notification issued by the State Government to take charge of the Municipal Government of Kolkata to be known as Kolkata Municipal Corporation. It is relevant to record that the expression “Calcutta” has been substituted by the word “Kolkata” by Section 5 of the West Bengal Capital City (Change of Name) Act, 2001, which came into force from 1st day of January, 2001. Section 5 of the Act relates to constitution of the Corporation which consists of 141 elected Councillors and such persons having special knowledge or experience in municipal administration as the State Government may nominate from time to time. However, the restriction was imposed upon such persons not to have a right to vote in the meeting of the Corporation. Sub-Section (2) of Section 5 mandates that the said 141 Councillors shall be elected by the Constituencies and for the purpose of the same each word described in Schedule II of the Act shall constitute the Constituency. Out of those elected Councillors one member shall be elected at the first meeting of the Corporation as Mayor and one member as Chairman. Section 8 of the Act provides that the Mayor-in-Council consisting of Mayor, the Deputy Mayor and not more than 10 (ten) other elected members of the Corporation shall be responsible to the Corporation and shall transact the business which shall be determined by the Corporation by Regulations.
4. The entire argument is advanced on the provision contained in Ch
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