The Municipal Commissioner, Calcutta & Ors. Vs. Sh. Salil Kumar Banerjee & Ors.
EmailCalcuttta Municipal Act, 1951
Sections, 391A, 391B and 414A – Calcutta Municipal Corporation Act, 1980, Sections 415 and 631 – Building Tribunal – Appeal against orders, passed by Commis-sioner – Appeal against demolition order – 1951 Act providing for Tribunal consisting of President and two assessors to hear ap-peals of demolition cases – 1980 Act providing for constitution of Tribunal Benches consisting of one Judicial Member and one Technical Member – New Act also providing for saving clause to the effect that procedure laid down in the new Act will also govern contravention of the 1951 Act – Demolition taking place while 1951 Act was in force – New Act coming into force when appeal was preferred – Tribunal constituted in terms of the provisions of the new Act giving finding against respondent confirming demoli-tion order passed by Commissioner – On appeal High Court holding that the Tribunal was improperly constituted as pleaded by re-spondents. Held in view of the saving clause contained in the new Act the High Court was wrong in holding that Tribunal was improp-erly constituted. Further respondents who filed the appeal under the 1980 Act before the Tribunal not having taken the point of improper constitution of the Tribunal at any point of time during the appeal before the Tribunal, High Court was not justified in entertaining the plea of improper constitution of the Tribunal. Narhari Shivram Shet Narvekar v. Pannalal Umediram AIR 1977 SC 164 Applied. (Para 4)
1. We find the conduct of the first respondent thoroughly dishon-est.
2. The first respondent was required by the appellant to demolish a construction that he had put up. He challenged the order of demolition before the Building Tribunal constituted in this behalf under the Municipal Corporation Act, 1980. The decision of the Tribunal having gone against him, he filed a writ petition before the High Court at Calcutta and contended that the Tribunal which had heard and disposed of his appeal was improperly consti-tuted in that it consisted of only two members. The writ petition was allowed and the Municipal Corporation has filed this appeal there against by special leave.
3. At the time the demolition order was passed, the provisions of the Calcutta Municipal Act, 1951 were in force. It provided for the constitution of a Building Tribunal under Section 391-B. It was to consist of a President and two assessors. It was empowered under Section 391-A read with Section 414-A to hear appeals against orders passed by the Commissioner, which included orders requir-ing demolition. Section 415 of the Calcutta Municipal Corporation Act, 1980, which replaced the 1951 Act, originally provided for a Tribunal of a Chairman and two assessors. Section 415 was, there-after amended and the Tribunal was then to consist of a Chairman and such number of members not exceeding six as the State Government might determines. The Chairman was empowered to constitute one or more benches, each bench to comprise of atleast two members of whom one would be a Judicial Member and the other would be a Technical Member. The 1980 Act, in Section 631, made provisions for savings as to certain suits and proceedings. Sub-section (3) thereof stated :
“(3) Save as provided in Sub-Section (2) the procedure laid down in this Act shall be followed in all proceedings relating to be contravention of the provisions of the Calcutta Municipal Act, 1951.”
4. In the first place, by reason of Section 631(3), the Tribunal that heard the first respondent’s appeal was properly constitut-ed. That Sub-section expressly made provision that the procedure of the 1980 Act would be followed in respect of proceedings that related to contraventions of the 1951 Act. This provision was overlooked by the High Court. The High Court also overlooked the fact that it was the first respondent, the writ petitioner before it, who had filed the appeal under the 1980 Act before the Tribunal and had at no stage before the Tribunal ever contended that it was improperly constituted. Even assuming that it ought to have consisted of three or more members, had that objection been taken at the initial stage of the hearing of the appeal before the Tribunal, that position could have been rectified. Certainly, in circumstances such as these, the High Court ought not to have exercised its discretion in favour of the first respondent.)
5. The decision of this Court in Narhari Shivram Shet Narvekar v. Pannalal Umediram (AIR 1977 SC 164) squarely applies to the facts of the present case.
6. In the circumstances, the appeal is allowed. The judgment and order under appeal is set aside. The writ petition filed by the first respondent is dismissed. The first respondent shall pay to the appellants and respondents no. 2 and 3 the costs of this appeal.
7. It is needless to say, having regard to the passage of time, that the appellant must act expeditiously to implement the order of the Tribunal.
