Summary of the Written Notes of Arguments

 

Summary of the Written Notes of Arguments

Case: C.O. 4032 of 2015, C.O. 4033 of 2015 & C.O. 4034 of 2015
High Court at Calcutta – Civil Revisional Jurisdiction

1. Background

• The three revisional applications arise out of a demolition proceeding concerning a Ground + 3 storied building at Premises No. 578, Laskarhat, Kolkata.
• The first two petitions are by subsequent purchasers of flats, while the third petition is by the developers/promoters.
• The original owner, Smt. Aloka Roy, had entered into a Joint Venture Development Agreement with the developers on 5 December 2007, following which the building plan was sanctioned by the Kolkata Municipal Corporation (KMC), flats were sold, and the purchasers took possession in 2009.

2. Demolition Proceedings

• KMC initiated demolition proceedings alleging unauthorized construction.
• The first demolition order dated 10 May 2011 was challenged before the High Court, which set it aside and directed a fresh hearing.
• Despite the High Court's direction, the petitioners were allegedly denied copies of relevant documents and an effective opportunity of hearing.
• A fresh demolition order dated 16 October 2012 was again passed, substantially reproducing the earlier order.
• The Municipal Building Tribunal dismissed the appeals on 18 September 2015, leading to the present revisional applications. The High Court granted interim stay of the Tribunal's order.

3. Change in Status of Original Owner

• Initially, the original owner was shown as the Person Responsible (PR) for the alleged unauthorized construction.
• Subsequently, without explanation, she became the complainant, while the developers and purchasers were treated as the persons responsible.
• The petitioners contend that they were never supplied the relevant records explaining this change, amounting to procedural irregularity.

4. Nature of Alleged Deviations

The alleged unauthorized constructions include:

• Cantilever projections.
• Construction of lofts and toilets.
• Internal shifting of brick walls.
• Conversion of one car parking space into a residential unit.

The petitioners argue that:

• All deviations are within the same covered area and largely within permissible limits.
• The change of use of the parking space is capable of regularization under the Kolkata Municipal Corporation Act.

Principal Legal Arguments

A. Lack of Jurisdiction (Coram Non Judice)

The central contention is that:

• The Special Officer (Building), KMC had no statutory authority under the Kolkata Municipal Corporation Act, 1980 to pass demolition orders.
• Reliance is placed on Susama Saha v. Kolkata Municipal Corporation (2015 (5) CHN 309), where the High Court held that the Special Officer (Building) was not legally empowered to exercise such jurisdiction.
• Although KMC filed an SLP before the Supreme Court, it was dismissed with liberty to seek review, and the review remains pending.
• Therefore, the demolition order is argued to be without jurisdiction, void ab initio, and coram non judice, rendering the Tribunal's order equally unsustainable.

B. Applicability of 2015 Regularization Regulations

The Tribunal allegedly erred by:

• Treating the deviations as "major" without considering the Kolkata Municipal Corporation (Regularization of Building) Regulations, 2015, which came into force before disposal of the appeals.
• The petitioners argue that the alleged deviations were capable of regularization under these Regulations.

C. Subsequent Amendment Cannot Cure Earlier Defect

• KMC later amended Section 400 by introducing the Fourth Proviso empowering the Municipal Commissioner to appoint a Special Officer.
• The petitioners contend that this amendment itself demonstrates that the earlier Special Officer lacked authority.
• The amendment cannot retrospectively validate an order passed in 2012 without jurisdiction.

Consumer Forum Proceedings

• The original owner has simultaneously filed a consumer complaint seeking compensation and a Completion Certificate (CC).
• The developers submit that the absence of a Completion Certificate is solely because of the pending demolition proceedings.
• They seek liberty from the High Court to obtain the Completion Certificate if the demolition proceedings are set aside.

Reply to KMC's Contentions

The petitioners argue:

• Res judicata does not apply because the issue is one of jurisdiction (coram non judice), which can be raised at any stage.
• The plea that subsequent purchasers have no locus standi is contrary to the records since they were served notices and participated in the demolition proceedings.
• Earlier decisions relied upon by KMC are distinguishable because, unlike those cases, the jurisdictional objection was raised before the Tribunal itself.

Reply to Original Owner's Contentions

The petitioners submit that:

• Section 400 of the Kolkata Municipal Corporation Act is substantive, not merely procedural.
• Therefore, the amendment empowering the Municipal Commissioner to appoint a Special Officer cannot operate retrospectively to validate earlier demolition orders passed without jurisdiction.

Relief Sought

The petitioners pray that the High Court:

1. Set aside the demolition order dated 16 October 2012.
2. Set aside the Municipal Building Tribunal's order dated 18 September 2015.
3. Hold that the Special Officer (Building), KMC lacked jurisdiction.
4. Grant liberty to the developers to approach KMC for issuance of the Completion Certificate (CC) so that the consumer dispute may also be resolved.

Bottom of Form