Calcutta High Court (Appellete Side)
Gour Chandra Nandy & Ors vs The Howrah Municipal Corporation & Ors on 24 November, 2023
Author: Amrita Sinha
Bench: Amrita Sinha
Item No.07
24.11.2023
sh/agm In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WPA 24799 of 2023
Gour Chandra Nandy & Ors.
v.
The Howrah Municipal Corporation & Ors.
Mr. Saptangshu Basu, Ld. Sr. Adv.
Mr. Sayan Sinha
Mr. Soham Kumar
... for the petitioners.
Mr. Tanmoy Mukherjee
Mr. Souvik Das
Mr. K.R. Ahmed
Mr. Rudranil Das
... for the respondent no. 5.
Mr. Sandidpan Banerjee
Mr. Ankit Sureka
Mr. Sobhan Majumder
... for HMC.
Mr. Rudranil De
... for the State.
Mr. Debanik Banerjee
Mr. S.S. Biswas
... for the respondent nos. 6, 7 & 8.
The petitioners are aggrieved by the order dated
September 21, 2023 passed by the Assistant Engineer-
in-Charge, Building Department, Howrah Municipal
Corporation directing the person responsible for causing
self-demolition of the unauthorized construction and
deviated portions as mentioned in the inspection report
and in default the Corporation will cause demolition of
the unauthorized construction and the deviated portions
and recover the costs of demolition from the person
responsible.
The impugned order has been attacked on two fold
grounds. First being that an accommodation was sought
for on the day of hearing which was refused and second,
the inspection report relied upon by the Assistant
Engineer-in-Charge was not circulated.
In support of the aforesaid submission the
petitioners rely upon the judgment delivered by the
Hon'ble Supreme Court in the matter of Union Bank of
India v. Sanjoy Mittal & Ors. and Union Bank of India
v. Ranjan Roy & Ors. reported in 2000 SCC Online
Cal 313: (2000) 2 CHN 616 wherein the Hon'ble
Supreme Court took note of the decisions reported in
1968 (3) All England Law Reports 506 in Priddle v.
Fisher & Sons. and R. v. Thames Magistrates' Court
reported in 1974 (2) All England Law Reports 1219,
wherein refusal to grant adjournment was held to be
violative of the principles of natural justice.
The petitioners also rely upon the judgment
delivered by the Hon'ble Supreme Court in the matter of
Union of India & Ors. v. Mohd. Ramzan Khan,
reported in (1991) 1 SCC 588 wherein the Court was of
the opinion that in a quasi-judicial matter, if the
delinquent is being deprived of the knowledge of the
material against him though the same is made available
to the punishing authority in the matter of reaching his
conclusion, rules of natural justice would be affected.
It is the specific submission of the petitioners that
there has been violation of the principles of natural
justice in not granting adjournment for a solitary day
and in not supplying the inspection report relying upon
which the self-demolition order has been passed.
It has been submitted that no inspection was
conducted and no notice of inspection was ever served
upon the petitioners prior to preparation of the
inspection report and prior to conducting hearing in the
matter.
It has been submitted that G+4 floors were
sanctioned by the Corporation and the 5th floor has been
constructed by the petitioners on the assumption that
the same may be sanctioned by the Corporation as an
application seeking sanction of the same was filed and
pending consideration before the Corporation.
It has, however, been fairly admitted that the
sanction of the 5th floor is yet to be allowed.
It has been submitted that the 5th floor is
completely occupied and the observation in the
impugned order that the same is unoccupied is
incorrect.
Prayer has been made for setting aside the
impugned order of self-demolition.
The submission and prayer of the petitioners has
been opposed by the respondents.
Learned advocate representing the respondent no.
5 submits, upon instruction that, the Constituted
Attorney of the petitioners who is the respondent no. 8
herein was present at the time of hearing and,
accordingly, the submissions of the petitioners that
opportunity of hearing was not granted, is incorrect.
It has been submitted that the entire 5th floor has
been constructed without sanction. The structure in
question was unoccupied at the time of inspection but
the same has been let out on rent very recently to a
retired police officer of the Batra Police Station.
Learned advocate representing the respondent no.
8 submits that a days' accommodation was sought at
the time of hearing which was refused and, as such, the
said respondent was not able to place all documents in
support of the construction made at the time of hearing.
It has been submitted that at present the
relationship between the petitioners and the respondent
no. 8 has turned sour.
Learned advocate representing the Corporation
submits that as there is no sanction for the additional
floor that has been constructed, the same is liable to be
demolished. There are deviations in the construction
made upto the G+4 floor level.
It has been submitted that at the time of
inspection the structure in question was found to be
unoccupied.
Respondents pray for dismissal of the writ
petition.
Upon hearing the parties and upon perusal of the
materials on record it appears that G+4 floors were
sanctioned by the Corporation. Though the impugned
order of self-demolition records that a joint inspection
was held on August 18, 2023 but the same has been
disputed by the petitioners and the respondent no. 8.
Admittedly, on the date of hearing, the respondent
no. 8 who was actually responsible for making
construction sought for an adjournment. The petitioners
herein also sought for an adjournment.
The impugned order records that there is deviation
in construction till the G+4th floor level. As regards the
additional floor, admittedly, there is no sanction for
raising construction.
The precedents relied upon by the petitioner are
settled principles of law and, accordingly, they are not
dealt with separately.
As an issue has been raised with regard to the
violation of principles of natural justice and as
admittedly, the inspection report has not been
circulated, accordingly, to put an end to the dispute
once and for all, the Corporation is directed to grant a
further opportunity of hearing to all the parties for
production of documents in support of the construction
made.
A joint inspection shall be conducted upon prior
notice to all the parties and the spot inspection report be
circulated amongst the parties. After circulation of
report, the hearing shall be conducted and final order
shall be passed in the matter.
Spot inspection shall be conducted by 8th
December, 2023 and thereafter subsequent steps shall
be taken by the Corporation at the earliest. Final order
shall be passed positively within a period of 60 days
from the date of circulation of the spot inspection report.
The notice of spot inspection and the notice of
hearing shall be served upon the person(s) responsible
for making construction/the owners and the occupiers
of the subject structure and the said notice shall be
pasted at several conspicuous places in and around the
subject property so that none can come forward in
future claiming ignorance of the notice of spot inspection
and hearing.
As it appears that the Corporation has already
detected unauthorized construction of the top most floor
and deviation in the G+4 floors, accordingly, the
person(s) responsible for making construction is
restrained from making any further construction at the
subject premises till the issue is finally decided by the
Corporation.
The person(s) responsible and the owners of the
subject property are restrained from transferring/
alienating or creating any third party right in respect of
any portion of the subject structure till the issue is
finally decided by the Corportion.
The impugned order dated 21st September, 2023
is, accordingly, set aside and quashed.
Affidavit-of-service filed today in Court be kept
with the records.
The writ petition stands disposed of.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
