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IN THE HIGH COURT AT CALCUTTA
Arijit Banerjee, Apurba Sinha Ray, JJ.
Kajal Majumdar - Appellant
Versus
Sk. Mansur Ali & Ors. - Respondents
M.A.T. No. 1862 of 2022, I.A. No. CAN/1, 2/2022
Decided On : 03-02-2023
UNAUTHORISED CONSTRUCTION - DEMOLITION ORDER - MUNICIPAL BUILDING TRIBUNAL - NATURAL JUSTICE - NOTICE OF APPEAL - NULL AND VOID - RECALL OF ORDER - PRINCIPLES OF NATURAL JUSTICE - ORDER 9 RULE 13 OF THE CODE OF CIVIL PROCEDURE - WRIT PETITION - JUDGMENT AND ORDER SET ASIDE.
Fact of the Case:
The appellant, Kajol Majumder, was alleged to have made unauthorised construction on her property. A demolition case was initiated against her, and the Special Officer (Building) of the Kolkata Municipal Corporation (KMC) allowed her to retain the construction on certain conditions. The complainant, a neighbour of the appellant, appealed to the Municipal Building Tribunal, which reversed the order of the Special Officer and directed demolition of the construction.
Finding of the Court:
The court found that the appellant was not served with notice of the appeal before the Municipal Building Tribunal and that she was not given an opportunity to be heard. The court held that the Tribunal's order was a nullity and that the learned Single Judge erred in not recalling the order dated June 21, 2022, whereby the Tribunal's demolition order had been directed to be implemented.
Issues: 1. Whether the appellant was served with notice of the appeal before the Municipal Building Tribunal? 2. Whether the appellant was given an opportunity to be heard before the Municipal Building Tribunal? 3. Whether the Tribunal's order was a nullity? 4. Whether the learned Single Judge erred in not recalling the order dated June 21, 2022?
Ratio Decidendi: 1. The court held that the appellant was not served with notice of the appeal before the Municipal Building Tribunal and that she was not given an opportunity to be heard. 2. The court held that the Tribunal's order was a nullity since it was passed in violation of the principles of natural justice. 3. The court held that the learned Single Judge erred in not recalling the order dated June 21, 2022, whereby the Tribunal's demolition order had been directed to be implemented.
Final Decision: The court allowed the appeal, set aside the judgment and order under appeal, and declared the demolition order passed by the Municipal Building Tribunal on December 9, 2022, to be a nullity. The court also directed the Tribunal to hear the appeal afresh after serving due notice of appeal on all the parties and to decide the appeal within 6 months from the date of a copy of this order being placed before the Tribunal by the parties.
JUDGMENT
Arijit Banerjee, J. - This appeal is directed against a judgment and order dated September 22, 2022, whereby an application for recall of an order dated June 21, 2022, being CAN 1 of 2022, was dismissed. The judgment and order dated June 21, 2022, was passed by the learned Single Judge disposing of WPA 2978 of 2020 by directing implementation of a demolition order.
2. The material facts of the case are that on a complaint received from the present writ petitioner who is a neighbour of the appellant herein, to the effect that the appellant has made unauthorised construction, a demolition case was initiated by the Special Officer (Building), Kolkata Municipal Corporation (KMC). The Special Officer (Building) passed a final order, after hearing all the parties, allowing the appellant herein to retain the impugned construction upon payment of certain charges.
3. The writ petitioner herein carried such order in appeal before the Municipal Building Tribunal being B.T Appeal No. 68 of 2014. The Tribunal reversed the order of the Special Officer (Building) and passed an order dated December 9, 2022, directing demolition of the construction put up by the appellant herein.
4. Alleging non-implementation of the order of demolition, the present writ petitioner approached the learned Single Judge by filing W.P.A 2978 of 2020. By a judgment and order dated June 21, 2022, the learned Judge disposed of the writ petition by directing the Commissioner of 'KMC'- 'to immediately takes steps for implementation of the order passed by the Municipal Building Tribunal on December 9, 2019, at the earliest, positively within the period of 3 months from the date of communication of a copy of this order.' The present appellant was a party respondent but was not represented on the day when the writ petition was disposed of.
5. It appears that on the strength of the said order dated June 6, 2022, people from KMC went to demolish the impugned construction put up by the appellant. The appellant contending that only thereupon the appellant came to know of the order dated June 6, 2022, as also the demolition order passed by the Municipal Building Tribunal, the appellant filed an appeal being M.A.T 1342 of 2022 along with a stay application and an application for condonation of delay of 27 days in filing the appeal.
6. It was submitted before a Co-ordinate Bench that the appellant had engaged a lawyer to contest the writ petition and she was all throughout under the impression that her interest was being protected by her advocate. From time to time, she enquired from her advocate as regards the status of the case and she was assured that the case has not yet been heard. Suddenly people from KMC visited her house to demolish the same. She has been informed that her advocate passed away in May, 2022, and hence, her case went un-represented before the learned Single Judge.
7. Upon hearing the parties the Co-ordinate Bench by a judgment and order dated August 25, 2022, disposed of the appeal and the connected applications with the following observations:-
'We are not inclined to go into the merits of the case. The appellant may approach the learned Single Judge with an appropriate application explaining her absence on the day the impugned order was passed. If such an application is made, the learned Judge is requested to decide the same in accordance with law.
Only to grant a breathing space to the appellant, let the demolition not be carried out for a fortnight from date.'
8. Pursuant to the liberty granted by the Division Bench, the appellant herein approached the learned Single Judge with an application for recall of the order dated June 21, 2022. By the impugned judgment and order dated September 22, 2022, such recalling application was dismissed. The learned Judge recorded in the order that the entire writ petition was heard on merits once again. Having heard the parties the learned Judge dismissed the recalling application with the following observations:-
'It a
An order passed in breach of the principles of natural justice is null and void and non-est in the eye of law.
An order affecting a person's rights is effective only when communicated, starting the limitation period from that date, not the date of the order itself.
The duty of the municipal authority to ensure prompt demolition of unauthorized constructions and the precedence of the order of a higher court over that of a subordinate court.
An unauthorized construction is liable to be demolished, and the municipal authorities are not bound to regularize the same.
Proper service of notice under the Kolkata Municipal Corporation Act can be achieved through speed post, satisfying statutory requirements for natural justice.
The main legal point established in the judgment is the importance of adhering to building rules and not permitting unauthorized construction to remain. The court emphasized the need to implement val....
The Superintendent Engineer validly issued a demolition order under delegated authority, despite challenges regarding notice and natural justice, affirming the necessity of judicial efficiency in mun....
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