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2017 Supreme(Cal) 820
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Lalit Himatlal Kampani - Petitioner
Vs.
The President, Advertising Club, Calcutta & Ors. - Respondents
C.O. No. 3355 of 2017
Decided On : 12-12-2017
Advocate Appeared:
For the Petitioner: Mr. S.P. Sarkar, Mr. Barin Banerjee, Mr. Shaunak Ghosh, Mr. Rajib Mullick,
Ms. Monika Dey
For the Respondents: Mr. Siddhartha Banerjee, Ms. Antara Chatterjee, Mr. Pijush Biswas, Mr. Avishek Das, Mr. Arindam Banerjee, Mr. Bimal Sanganaria, Ms. Tanuka Basu
For the Kolkata Municipal Corporation : Mr. Achintya Kumar Banerjee
The main legal point established in the judgment is the importance of raising objections to jurisdiction at the earliest possible opportunity and the distinction between lack of authority and statutory lack of jurisdiction, and how it impacts the nullification of the action.
Headnote:
Jurisdiction - Kolkata Municipal Corporation Act - Section 400, Section 48 - The court discussed the authority and jurisdiction of the Special Officer (Building) to pass a demolition order under Section 400 of the Kolkata Municipal Corporation Act, 1980. It highlighted the principle that an objection as to jurisdiction ought to be taken at the earliest possible opportunity and the nature of objection as waivable. The court also emphasized the distinction between lack of authority and statutory lack of jurisdiction, and how it impacts the nullification of the action.
Fact of the Case:
The case involved a challenge against an order of demolition passed by the Municipal Building Tribunal of the Kolkata Municipal Corporation. The opposite party no. 4 sought to be impleaded in the appeal and filed a belated cross-objection challenging the authority and jurisdiction of the Special Officer (Building) to pass the demolition order.
Finding of the Court:
The court found that the opposite party no. 4 should not have been granted leave to file a cross-objection at a belated stage due to several reasons, including the participation of the predecessor-in-interest in the proceedings, the principle of judicial propriety regarding objections to jurisdiction, and the nature of the objection as waivable.
Issues: The issues included the timing of raising objections to jurisdiction, the participation of the opposite party no. 4 in the proceedings, and the nature of the objection as to the authority and jurisdiction of the Special Officer (Building) to pass the demolition order.
Ratio Decidendi: The court held that the objection as to jurisdiction ought to be taken at the earliest possible opportunity and emphasized the principle of judicial propriety. It also highlighted the distinction between lack of authority and statutory lack of jurisdiction, and how it impacts the nullification of the action.
Final Decision: The court allowed the application under Article 227 of the Constitution of India, set aside the impugned order, and granted liberty to the opposite party no. 4 to withdraw costs, if any, deposited pursuant to the impugned order.
Sabyasachi Bhattacharyya, J.
The present application under Article 227 of the Constitution of India has been filed against an order dated August 16, 2017 passed by the Municipal Building Tribunal of the Kolkata Municipal Corporation. Upon a demolition order being passed under Section 400 of the Kolkata Municipal Corporation Act, 1980 against the opposite party no. 1 by the Municipal Commissioner, Kolkata Municipal Corporation, the opposite party no. 1 preferred an appeal, bearing Building Tribunal Appeal no. 39 of 2011, before the Municipal Building Tribunal. In such appeal, the opposite party no. 4 sought to be impleaded as a co-appellant on the strength of his purchase of the disputed flat from the appellant/opposite party no. 1 on February 18, 2014. Such prayer was initially refused but, upon such refusal order being challenged in W.P. No. 2222(W) of 2016, this Court permitted the opposite party no. 4 vide Order dated February 25, 2016 to participate in the appeal and the Tribunal was directed to entertain such prayer of the opposite party no. 4. Thereafter, the opposite party no. 4 renewed his prayer for being impleaded in the appeal upon which, vide order dated May 5, 2016, the Tribunal added the opposite party no. 4 as respondent no. 4. The opposite party no. 4 thereafter prayed for transposition to the category of appellant, which was turned down.
2. It appears from the records that the opposite party no. 4 not only participated in the hearing of the appeal, albeit in the capacity of a respondent, but also filed written notes of arguments in the appeal. Subsequently, only after the conclusion of the hearing of the appeal, the opposite party filed a petition on July 28, 2017 for leave to file cross-objection, along with a memorandum of cross-objection. The primary premise of such cross-objection was that the officer, who passed the order of demolition, although designated as a Special Officer (Building), did not have the authority to discharge the function as a delegate of the Municipal Commissioner as contemplated under Section 48 of the Kolkata Municipal Corporation Act, 1980. As such, the opposite party no. 4 contended, such Officer did not have the power, authority or jurisdiction to dispose of the proceeding under Section 400 of the Kolkata Municipal Corporation Act, 1980 and to pass an order of demolition. The Tribunal, vide the impugned order dated August 16, 2017, allowed such prayer and granted the opposite party no. 4 leave to file cross-objection upon imposition of costs. The principal ground for granting such leave was that the question of lack of jurisdiction can be raised at any stage of the proceeding. This, despite the specific finding of the Tribunal that the opposite party no. 4 did not canvass such grievance either at the argument stage or in the lengthy written argument, comprised of 17 pages and annexures, filed by the opposite party no. 4. It was further found by the Tribunal that the issue of lack of jurisdiction of the Special Officer (Building) was an afterthought.
3. Upon service being completed, the present Revisional application is taken up for hearing. Learned counsel for the petitioner, who was the complainant before the Municipal Commissioner, argues that even if the question of lack of jurisdiction could have been urged at the inception of the proceeding, such issue could not be raised by the opposite party no. 4 at the fag end of the appeal, more so when both the opposite party no. 4 and his predecessor-in-interest, the opposite party no.1- appellant, participated throughout in the appeal and in the entire proceeding respectively. Learned Counsel for the petitioner cites two judgments, reported respectively at AIR 1956 Cal 470 (Jupiter General Insce. Co. Ltd. Vs. Corporation of Calcutta) and at AIR 1988 SC 205 (Prasun Roy Vs. The Calcutta Metropolitan Development Authority) which lay down the proposition that where the applicant participates in arbitration proceedings without prote
