Smt. Kajal Majumdar vs Sk. Mansur Ali & Ors
2023 Latest Caselaw 917 Cal

            IN THE HIGH COURT AT CALCUTTA
                        Civil Appellate Jurisdiction
                               (Appellate Side)

                            M.A.T. 1862 of 2022
                                     With
                            I.A. No. CAN/1/2022
                            I.A. No. CAN/2/2022

                            Smt. Kajal Majumdar

                                     Vs.

                            Sk. Mansur Ali & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                      &
        The Hon'ble Justice Apurba Sinha Ray

For the Appellant          : Mr. Arindam Banerjee, Adv.
                             Ms. Arpita Saha, Adv.
For   the   Private   Res- : Mr. Tapas Dutta, Adv.
pondents                     Mr. Mritunjoy Halder, Adv.
For the KMC                : Mr. Achintya Kr. Banerjee, Adv.
                             Mr. Debangshu Mondal, Adv.
Heard on                   : 29.11.2022,      13.12.2022,       04.01.2023,
                             09.01.2023 & 10.01.2023


CAV On                     : 10.01.2023


Judgment On                : 03.02.2023



Arijit Banerjee, J.:


1.    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
                                       2


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 appears from the order passed by the Municipal Building

Tribunal that the private respondent Kajol Majumder was served

with the summons. She initially appeared but thereafter chose not

to contest the proceeding. The Tribunal passed order on 21st

December, 2019.

The petitioner in the present writ petition sought for

implementation of the same. The Court merely directed the

Corporation to implement the said order.

The Court is of the opinion that the Special Officer (Building)

whose order was carried in appeal is not a necessary party

required for adjudication of the dispute in the present writ

petition. The order passed by the Special Officer (Building) had

already been examined and scrutinised by the Tribunal and

necessary order has been passed.

If any person aggrieved by the order passed by the Tribunal

chooses not to prefer any appeal or to challenge the same before a

superior forum then the said order is liable to be implemented. The

conduct of the applicant/private respondent in entering

appearance before the Tribunal at the initial stage and thereafter

not proceeding with the same implies that the private respondent

took the matter very casually and failed to appreciate the

consequence of her non-appearance.

The technical objection raised by the private respondent with

regard to the manner in which the respondent no.2 has been

described is also not accepted by the Court.

The order passed by the Tribunal not being challenged before

any competent forum has attained finality and ought to be

implemented by the respondent authority.

As regards the prayer made in the writ petition, it is for the ends

of justice, that the same may be modified.

The Court has passed order for implementation of the order

passed by the Tribunal. The order passed by this Court on 21st

June, 2022 is accordingly not required to be interfered with."

9. Being aggrieved the private respondent in the writ petition is before us

by way of this appeal.

10. Appearing for the appellant, Mr. Arindam Banerjee, learned Advocate,

submitted that the Tribunal disposed of the appeal by passing demolition

order against the appellant herein, without serving notice of appeal on the

appellant herein. He submitted, with reference to the records of B.T. Appeal

No. 68 of 2014, which we had called for, that at the initial stage, when the

application for condonation of delay and the stay application were heard by

the tribunal, the appellant herein had been notified. The appellant herein

participated in such proceedings. The appellant participated till the stage

when the stay application was allowed on August 25, 2017. Thereafter, no

notice was served on the appellant herein communicating any date of

hearing of the appeal. It appears from the records that by an order dated

September 2, 2019, the Tribunal fixed November 18, 2019, as the date for

further order. On the adjourned date, suddenly hearing of the appeal was

taken up and the complainant's/appellant's submission was recorded. On

the next day i.e., November 19, 2019 the, hearing was concluded after

hearing representative of KMC. The matter was fixed for judgment on

December 9, 2019. On that date the Tribunal passed its judgment recording

that the appellant herein who was the respondent no. 6 in the appeal before

the Tribunal, did not appear before the Tribunal for a long time.

11. Mr. Banerjee referred to Rules 10 (1) and (2) of Calcutta Corporation

Tribunal (Conduct of Business) Rules 1965, which read as follows:-

"(1) Unless an appeal be dismissed for any reason referred to in

rule 9, the President shall call for the relevant record from the

Commissioner and notice of the appeal shall be issued to all

respondents fixing a date for their appearance.

(2) After service of notice on the respondents and receipt of the

record from the Commissioner, the President shall fix a date for

hearing the appeal."

12. Mr. Banerjee submitted that the principles of natural justice have

been completely violated in the present case by the Tribunal vitiating the

judgment and order passed by the Tribunal on December 9, 2019. Such

judgment and order is null and void and non-est in the eye of law. The

learned Single Judge by the order dated June 21, 2022, could not have

directed implementation of the Tribunal's order since the same was a

nullity. Consequently, the learned Judge ought to have allowed the recalling

application and erred in dismissing the recalling application by the

judgment and order impugned in this appeal.

13. Appearing for KMC, Mr. Achintya Banerjee, learned Advocate,

submitted that the conduct of the appellant disentitles her to any equitable

relief. She voluntarily stayed away from the proceedings before the Tribunal.

She had due notice of the hearings before the Tribunal and participated

therein. After the stage of the stay application being allowed by the tribunal,

the appellant herein absented herself in such proceedings. It was her duty

to find out when the appeal was fixed for hearing and contest the appeal.

After having served notice of the interlocutory proceedings on the appellant,

the Tribunal did not have any further obligation to serve on her notice

intimating the date of hearing of the appeal. In any event, the appellant

herein did not take recourse to the remedy provided by Rule 12(4) of the

1965 Rules which reads as follows:-

"(4) (a) If the appellant appears and the respondent does not

appear when the appeal is called on for hearing, the Tribunal

shall, after hearing the appellant, proceed to dispose of the appeal.

(b) Where an appeal is heard in the absence of the respondent and

judgment is pronounced against the respondent, he may apply for

re-hearing the appeal and if he satisfies the Tribunal that he was

prevented by sufficient cause from appearing when the appeal was

called on for hearing, the Tribunal shall re-hear the appeal on

such terms as to costs or otherwise as it thinks fit."

14. Mr. Banerjee submitted that the appellant thought that the demolition

order of the Tribunal will never be implemented. Hence the appellant merrily

sat tight without taking any step for assailing the Tribunal's order. Mr.

Banerjee prayed for dismissal of the appeal.

15. Appearing for the writ petitioner, who was the complainant and

appellant before the tribunal, Mr. Datta, learned Advocate, submitted that

the appeal is not maintainable. Relying on the decisions of the Hon'ble

Supreme Court in the case of DSR Steel (private) limited v. State of

Rajasthan & Ors., reported at (2012) 6 SCC 782 and in the case of

Bussa Overseas & Properties Private Limited & Anr. v. Union of India

& Anr., reported at (2016) 4 SCC 696, Mr. Datta submitted that since the

appellant has not challenged the order dated June 21, 2022, which still

subsists, this appeal is not maintainable. He relied on the observations in

paragraph 25.3 of the reported judgment in the case of DSR Steel (private)

limited v. State of Rajasthan & Ors. (supra) which reads as follows:-

"25.3 The third situation with which we are concerned in the

instant case is where the revision petition is filed before the

Tribunal but the Tribunal refuses to interfere with the decree or

order earlier made. It simply dismisses the review petition. The

decree in such a case suffers neither any reversal nor an alteration

or modification. It is an order by which the review petition is

dismissed thereby affirming the decree or order. In such a

contingency there is no question of any merger and anyone

aggrieved by the decree or order of the Tribunal or Court shall

have to challenge within the time stipulated by law, the original

decree and not the order dismissing the review petition. Time

taken by a party in diligently pursing the remedy by way of review

may in appropriate cases be excluded from consideration while

condoning the delay in the filing of the appeal, but such exclusion

or condonation would not imply that there is a merger of the

original decree and the order dismissing the review petition."

16. He also relied on the observations in paragraphs 15, 19, 28 and 29 of

the reported judgment in the case of Bussa Overseas & Properties Private

Limited & Anr. v. Union of India & Anr.(supra):-

"15. In Shanker Motiram Nale, a two-Judge Bench has opined that

an appeal against the order rejecting the application for review of a

judgment and decree passed by the learned Single Judge is not

appealable as appeal is not against the basic judgment. To arrive

at the said conclusion, the Court has referred to Order 47 Rule 7

of the Code of Civil Procedure, 1908 that bars an appeal against

the order of the Court rejecting the review.

19. In Vinod Kapoor, it has been held thus:-(SCC pp. 382-83,

paras 11-12)

"11. Moreover, on the High Court rejecting the application for

review of the appellant, the order rejecting the application for

review is not appealable by virtue of the principle in Order 47 Rule

7 CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput,

Suseel Finance & Leasing Co. v. M. Lata and M.N. Haider v.

Kendriya Vidyalaya Sangathan cited by the learned Counsel for

Respondent 8, this Court has consistently held that an appeal by

way of special leave petition under Article 136 of the Constitution

is not maintainable against the order rejecting an application for

review in view of the provisions of Order 47 Rule 7 CPC.

12. There is nothing in the decisions cited by the appellant to show

that this Court has taken a view different from the view taken

in Abhishek Malviya v. Welfare Commr. with regard to

maintainability of an appeal by way of special leave under Article

136 of the Constitution against an order of the High Court after an

earlier special leave petition against the same order had been

withdrawn without any liberty to file a fresh special leave petition.

Similarly, there is nothing in the decisions cited by the appellant

to show that this Court has taken a view that against the order of

the High Court rejecting an application for review, an appeal by

way of special leave under Article 136 of the Constitution is

maintainable."

28. The aforequoted passage in Mahendra Saree Emporium (2)

case has to be appositely understood. The three-Judge Bench has

held that any legislation subordinate to the Constitution cannot

whittle down or take away the jurisdiction and powers conferred

on the constitutional courts of the country. The decisions which

we have referred to earlier deal about the maintainability of the

challenge to the order of review when the main order is not

assailed. The real test is even if the order passed in review is set

aside, the order that is not challenged cannot be set aside. The

decision in Eastern Coalfields Ltd. as has been rightly opined in

Ripa Sarma case, has been rendered in ignorance of the earlier

judgments of co-equal strength. That apart, we are inclined to

agree with the view in Ripa Sarma wherein it has been observed

that the submission with regard to the merger of the main order

with the order in review has been merely noticed in Eastern

Coalfields Ltd. and not accepted.

29. Needless to state that when the prayer for review is dismissed,

there can be no merger. If the order passed in review recalls the

main order and a different order is passed, definitely the main

order does not exist. In that event, there is no need to challenge

the main order, for it is the order in review that affects the

aggrieved party."

17. On merits Mr. Datta adopted the submission made on behalf of KMC.

He also prayed for dismissal of the appeal.

18. We have heard learned Counsels for the parties at length. In our view

the appeal can be decided on a short point of law.

19. The admitted facts are that the writ petitioner herein lodged a

complaint of the appellant herein having made unauthorised construction. A

demolition case was initiated on the basis of such complaint. The Special

Officer (Building), upon hearing the concerned parties allowed the appellant

herein to retain the alleged unauthorised construction on certain terms. The

writ petitioner hearin appealed against such order before the Municipal

Building Tribunal. The appeal was accompanied by an application for

condonation of delay and an application for stay of operation of the order of

the Special Officer (Building).

20. We called for the records of the appeal from the Tribunal. The records

show that the appellant herein participated through her lawyer at the

hearing of the application for condonation of delay and also at the hearing of

the stay application. Both the said applications were allowed by the

Tribunal.

21. Admittedly no further notice was served by the Tribunal or the

appellant before it being the present writ petitioner, on the present appellant

prior to the Tribunal taking up the appeal for hearing. We are unable to

accept the submission of learned Advocate for KMC that since the appellant

had participated at the interlocutory stage, i.e., at the hearing of the

application for condonation of delay and at the hearing of the stay

application, there was no obligation on either the Tribunal or the appellant

before it to serve any further notice of hearing of the appeal on the appellant

herein. Rules 1 and 2 of the 1965 Rules clearly contemplate that where an

appeal is not dismissed for any reason referred to in Rule 9, the President of

the Tribunal shall call for the relevant records from the Commissioner of the

Corporation and after service of notice on the respondents intimating a date

for their appearance and after receipt of the records from the Commissioner,

the President shall fix a date for hearing the appeal.

22. In our considered view it cannot be contended that just because the

appellant herein appeared before the Tribunal at the interlocutory stage, she

was not entitled to receive notice of hearing of the appeal. Hearing of an

application for condonation of delay or hereing of an interlocutory

application for stay of the impugned order is entirely different from hearing

of the appeal on merits. None of the respondents have been able to

demonstrate before us with reference to the records of the case that notice of

hearing of the appeal was served on the appellants herein. It is clear that the

appeal was heard and decided without serving notice of appeal on the

appellant herein.

23. The appellant herein was, therefore, denied an opportunity of hearing

by the Tribunal before deciding the appeal. This would be a flagrant breach

of audi alteram partem - one of the two original limbs of the principles of

natural justice - meaning thereby that an opportunity of hearing must be

granted by an authority to a person who is likely to be affected by any order

that the authority may pass. The basic idea is that nobody can be

condemned unheard. If an allegation is made against a person, on the basis

of which an authority - whether judicial, quasi-judicial or executive -

proposes to pass an order or take action which may have adverse

consequences for that person, then, prior to passing such order or taking

any action, the authority must afford a reasonable opportunity of hearing to

that person so that he gets a chance to refute the allegation or otherwise

deal with the same. This salutary principle has become deeply embedded in

our justice dispensation system and indeed in the legal system all over the

world. Legal justice cannot be achieved without observing the principles of

natural justice.

24. It is now well settled that an order passed in breach of the principles

of natural justice is null and void and non-est in the eye of law. It has no

effect in law. The party aggrieved by such an order can challenge it at any

stage, even at the stage of execution, and even in a collateral proceeding. In

the present case, we have no doubt in our mind, that the order of the

Tribunal is a nullity being violative of the principles of natural justice. That

order was put in execution by the complainant by filing the present writ

petition. The learned Judge directed implementation of the Tribunal's order

of demolition passed against the present appellant in her absence. When

demolition was sought to be effected by the KMC people, the appellant came

to know of the demolition order of the Tribunal. She preferred an appeal

against the learned Single Judge's order directing execution of the

demolition order. A Co-ordinate Bench did not interfere since although the

appellant was a party to the writ petition, she had chosen not to appear

before the learned Single Judge. The Co-ordinate Bench disposed of the

appeal by granting liberty to the appellant to approach the learned Single

Judge with an appropriate application. The appellant did so. The learned

Judge recorded that Her Lordship was hearing out the writ petition afresh.

The learned Judge finally concluded that there was no reason to recall the

order dated June 21, 2022, whereby the Tribunal's demolition order had

been directed to be implemented. The learned Judge was of the view that the

appellant voluntarily stayed away from the hearing of the appeal before the

Tribunal.

25. We are unable to agree with the learned Single Judge. No notice of

appeal having been served on the appellant herein as required by Rules 1

and 2 of the 1965 Rules, it cannot be said that the appellant's absence at

the hearing of the appeal before the Tribunal was intentional. We have

already indicated our view that the Tribunal's order is a nullity. The learned

Judge failed to appreciate this aspect of the matter and consequently erred

in not recalling the order dated June 21, 2022, whereby the Tribunal's

demolition order had been directed to be implemented.

26. Learned Advocate representing KMC submitted that there was an

alternative remedy available to the appellant by way of approaching the

Tribunal for recall of its order under Rule 12(4) of the 1965 Rules, and

therefore, this appeal should not be entertained. This argument does not

impress us. Firstly, the appellant herein is not the writ petitioner. Secondly,

the appellant has been able to persuade us that she was completely in the

dark regarding the hearing of the appeal before the Tribunal and the final

order of the Tribunal directing demolition of the construction put up by her.

She came to know of the order only when pursuant to the order impugned

in this appeal the KMC people went to demolish the impugned construction

in terms of the Tribunal's order. The appellant did not act unreasonably in

assailing the order of the learned Single Judge. She was however sent back

to the learned Single Judge by the Division Bench. Her recalling application

was dismissed. Hence this appeal. In the facts and circumstances of the

case, we do not think that the appellant has acted unreasonably in

approaching this Court directly in emergent situation without taking

recourse to Rule 12(4) of the 1965 Rules.

27. The point urged on behalf of the writ petitioner that the appellant, not

having assailed the parent order dated June 21, 2022, cannot maintain this

appeal also does not find favour with us. Pursuant to liberty granted by a

Coordinate Bench, the appellant approached the learned Single Judge with

an application for recall of the order dated June 21, 2022. Such application

was dismissed. It was perfectly in order for the appellant to assail such

dismissal order before us. If we allow this appeal, which we propose to do,

the same will amount to allowing the appellant's application for recall of the

learned Single Judge's order dated June 21, 2022. Hence no separate appeal

against such order need be filed.

28. The two judgments relied upon by learned Advocate for the writ

petitioner, in our considered view, have no manner of application to the

facts of the present case. Both the judgments deal with a situation where an

application for review of an order has been rejected. The said decisions

discuss as to when there will be a merger of the original order with the order

passed on the review application. In the facts of the present case, we are not

concerned with any review application. The application that was dismissed

by the learned Single Judge was one in the nature of an application under

Order 9 Rule 13 of the Code of Civil Procedure which reads as follows:-

"13. Setting aside decree ex parte against defendant.- In any

case in which a decree is passed ex parte against a defendant, he

may apply to the Court by which the decree was pass for an order

to set it aside; and if he satisfies the Court that the summons was

not duly served, or that he was prevented by any sufficient cause

from appearing when the suit was called on for hearing, the Court

shall make an order setting aside the decree as against him upon

such terms as to costs, payment into Court or otherwise as it

thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it

cannot be set aside as against such defendant only it may be set

aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed

ex parte merely on the ground that there has been an irregularity

in the service of summons, if it is satisfied that the defendant had

notice of the date of hearing and had sufficient time to appear and

answer the plaintiff's claim.]

[Explanation.- Where there has been an appeal against a decree

passed ex parte under this rule, and the appeal has been disposed

of on any ground other than the ground that the appellant has

withdrawn the appeal, no application shall lie under this rule for

setting aside that ex parte decree.]"

29. The learned Single Judge, on such application, reheard the writ

petition and came to the conclusion that there was no reason to alter or

recall the earlier order dated June 21, 2022. In fact, the learned Judge

affirmed her Ladyship's earlier order on merits. The learned Judge could

have reheard the writ petition only on the basis that the earlier order dated

June 21, 2022, stood recalled and the writ petition was being heard afresh.

Upon rehearing, the learned Judge passed the same order as Her Ladyship

did on June 21, 2022, holding that there was no warrant to interfere with

the order dated June 21, 2022. In our considered opinion there was no legal

requirement for the appellant to file an appeal also against the order dated

June 21, 2022.

30. In view of the aforesaid this appeal is allowed. The judgment and order

under appeal is set aside. We declare the demolition order passed by the

Municipal Building Tribunal on December 9, 2022, to be a nullity.

Consequently the order dated June 21, 2022, passed by the learned Single

Judge in the writ petition becomes ineffective.

31. The Tribunal shall now hear the appeal being BT Appeal No. 68 of

2018 afresh after serving due notice of appeal on all the parties and shall

decide the appeal as expeditiously as possible and positively within 6

months from the date of a copy of this order being placed before the

Tribunal by the parties hereto. We clarify that we have not gone into the

merits of the case. It will be entirely up to the Tribunal to take a fresh

decision upon hearing all parties as to whether or not the order of the

Special Officer (Building) assailed before the Tribunal, can be sustained.

32. The appeal and the connected applications are accordingly disposed

of.

33. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(Apurba Sinha Ray, J.)                                 (Arijit Banerjee, J.)