Sandip Chatterjee vs Prabir Bose & Ors
2023 Latest Caselaw 3177 Cal

   D/L
Item No 02
03.05.2023
 KOLE
                               MAT 638 of 2023
                                    With
                             IA No. CAN 1 of 2023

                              Sandip Chatterjee
                                    -Vs.-
                              Prabir Bose & Ors.


             Mr. Biswaroop Bhattacharyya,
             Mr. Dipayan Kundu,
                                                         ... for the appellant.
             Mr. Syamal Kr. Das,
             Mr. Ajoy Barman Roy,
                                                 ... for the respondent no. 1.

Mr. Suman Basu, ... for the Municipal Corporation.

By consent of the parties the appeal and the

application are taken up for hearing together.

A judgment and order dated March 23, 2023,

whereby the writ petition of the respondent nos. 1 to 3, being

WPA 19726 of 2021, was disposed of by a learned Judge, is

under challenge in this appeal. The appellant was the

private respondent in the writ petition.

The writ petition was filed for implementation of an

order of demolition for alleged unauthorized structures put

up by the appellant herein. The learned Judge directed

implementation of the demolition order. Hence this appeal.

A preliminary point has been raised by Mr.

Bhattacharyya, learned Advocate for the appellant, to the

effect that the demolition order is without jurisdiction and

non-est in the eye of law. Hence, the same cannot be

implemented. This is because, the demolition order has

been issued by the 'Bastukar' (Engineer) and not by the

appropriate authority under Section 266 of the West Bengal

Municipal Corporation Act, 2006 (in short the "2006 Act").

On the day when the appeal was admitted, i.e. on

April 18, 2023, the learned Advocate for the Corporation had

drawn our attention to Section 47 of the 2006 Act which

permits delegation of powers and functions of the

Commissioner to any other officer or any employee of the

Corporation. We had requested learned Advocate for the

Corporation to come back with instructions as to whether or

not there was, in fact, any such delegation by the

Commissioner.

On April 26, 2023, a further order was recorded,

which we need not advert to.

Today, learned Advocate for the Corporation fairly

and candidly submits that in spite of search, no order of

delegation could be found in the records of the corporation.

In that view of the matter, the only avenue would be to set

aside the demolition order as being without jurisdiction and

directing the appropriate authority under Section 266 of the

2006 Act, to initiate fresh proceeding and carry the same to

its logical conclusion after giving an opportunity of hearing

to all concerned parties.

Accordingly, the order under appeal as well as the

demolition order issued by the Bastukar are set aside. The

Commissioner of the Corporation is directed to initiate fresh

proceedings under Section 266 of the 2006 Act and carry the

same to its logical conclusion. In the fresh proceeding

opportunity of hearing shall be granted to all concerned

parties including the appellant and the writ petitioners

herein. The parties will be allowed to file and rely on

whatever documents they may be advised. The order will

naturally be a reasoned order. The entire exercise shall be

completed within six weeks from the date of communication

of this order to the Commissioner of the Corporation.

We have not gone into the merits of the case. The

Appropriate Authority shall take an informed decision in

accordance with law.

Needless to say, if the Corporation or the writ

petitioners intend to rely on any document at the fresh

hearing, advance copy of the same shall be made available to

the appellant herein. Likewise, if the appellant intends to

rely on any document at the fresh hearing, advance copy

thereof should be made available to the Corporation and the

writ petitioners.

Since we have not called for affidavits, the allegations

made in the stay application are deemed not to be admitted

by the respondents.

The appeal and the connected application are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

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