Written Notes of Arguments on behalf of the Petitioners

 

DISTRICT: South 24-Parganas

 

In the High Court at Calcutta

Civil Revisional Jurisdiction

C.O.4032 of 2015

(Biswaroop Bhattacharya &Anr. Vs. Smt. Aloka Roy & Ors.)

C.O.4033 of 2015

(Gopal Shaw &Anr. &Anr. Vs. Smt. Aloka Roy & Ors.)

C.O.4034 of 2015

(Santanu Kanjilal &Anr. Vs. Smt. Aloka Roy & Ors.)

 

Written Notes of Arguments on behalf of the Petitioners

 

Factual matrix of the case:

The first two revisional applications have been filed by the subsequent purchasers of apartment situate at Premises No.578, Laskarhat, Kolkata700039 in Ward No.107 under BoroughXII of the Kolkata Municipal Corporation (‘the said premises’ and ‘the KMC’ respectively for short). The said premises is a Ground+3 storied building. The petitioners in the first revisional application are the owners of the apartment at the 3^rdfloor of the said premises and the petitioners in the second revisional application are the owners of the apartment situate at the ground floor of the said premises. The developers and/or promoters are the petitioners in the third revisional application. The opposite party No.1 in all the revisional applications is the original owner of the said premises who entered into development agreement with the developer/promoter to develop the said premises which was developed and sold by subsequent purchasers.

The opposite party No.1 entered into a joint venture development agreement on 5th December,2007 with the developers/promoters to develop a multistoried building at the said premises and subsequently on 2^ndJune,2008, a building plan was sanctioned by the KMC in respect of the said premises. The developers constructed the multistoried building. On 27^thApril,2009 and 28^thApril,2009, the developers/promoters executed the deed of conveyance being the power of attorney holder in favour of the subsequent purchasers being the petitioners in the first revisional application and the petitioners in the second revisional application respectively. In the deed of conveyance, the opposite party No.1 was the vendor and the confirming party. Thereafter, the petitioners in the first and second revisional application respectively took possession of their apartments and have been living there since then.

 

There has been a demolition proceeding in respect of the said premises which the petitioners came to know on 2^ndFebruary,2012 and it came to their notice that the Special Officer(Building),KMC vide order dated 10^thMay,2011 directed for demolition of the unauthorized construction. The petitioners amongst others, filed a writ petition before this Hon’ble Court and by virtue of the order dated 18^thApril,2012, the said demolition order was set aside and the KMC was directed to hear the matter afresh after granting an opportunity of hearing to the parties.

 

Despite the order being passed by this Hon’ble Court, the petitioners did not get the copies of the précis and demolition sketch and as such, did not get appropriate opportunity to file objection and by order dated 16^thOctober,2012, the Special Officer(Building),KMC again passed an order of demolition in the same line following and/or simply copying the order passed by the then Special Officer(Building),KMC on 10^thMay,2011 which was set aside by this Hon’ble Court. Subsequently, there have been proceedings before this Hon’ble Court regarding the opportunity of filing appeal and ultimately, the petitioners filed statutory appeal before the Municipal Building Tribunal against the said demolition order dated 16^thOctober,2012 by challenging the same. The Municipal Building Tribunal, by judgment and order dated 18^thSeptember,2015 passed in BT Appeal Nos.103 of 2013, 5 of 2014 and 110 of 2014 dismissed the said appeals and confirmed the order passed by the Special Officer(Building),KMC.

 

Challenging the said common judgment and order dated 18^thSeptember,2015 passed by the Municipal Building Tribunal as aforesaid, the revisional applications have been filed and they have been clubbed together and being heard together. By order dated 16^thOctober,2015, this Hon’ble Court was pleased to admit the revisional applications by directing service of copies of the same upon the opposite parties and was further pleased to grant stay of operation of the judgment and order impugned passed by the Municipal Building Tribunal which has been continuing till date.

 

It is pertinent to mention here that when the demolition proceeding initially started, the opposite party No.1, viz., Smt. Aloka Roy, the original owner of the said premises, was the “Person Responsible”(‘PR’ for short) for the alleged unauthorised construction in the said proceeding. However, subsequently, when the second round of demolition proceeding started after the order dated 10^thMay,2011 passed by the Special Officer(Building),KMC was set aside by this Hon’ble Court, the opposite party No.1, surprisingly and mysteriously, became the complainant instead of PR and the developer/promoter along with the subsequent purchasers became the PR. Since at any point of time the petitioners in these three revisional applications neither could get the copies of the documents on the basis of which the proceedings were initiated nor get inspection of record, they could never know how all these alterations in the record of the KMC took place and how a person shown as PR could subsequently become complainant in the same proceeding.

 

The other major aspect of the matter is that the allegation of unauthorized construction is with regard to (i) projection of cantilever on 1^st, 2^ndand 3^rd floor,(ii)construction loft and toilet,WC,(iii)shifting of  inside brick walls on different floors of the said premises within the same covered area, and (iv) conversion of one car parting space into a residential unit.

 

It is pertinent to mention here that all the alleged deviations are within the permissible limit or the within same covered area which have all along been recorded by the Special Officer(Building),KMC as well as Municipal Building Tribunal. Therefore,the deviations are not major. So far the conversion of car parting space is concerned, the same could be regularized by using the powers by the municipal authorities regarding change of user which is permissible in law.

 

Legal submissions:

As stated above, the alleged deviations are well within the permissible limit and/or covered area which could very well be regularized including the change of user by invoking powers under Section 416 of the Kolkata Municipal Act, 1980 (“The 1980 Act” for short).The alleged violations are not causing any inconvenience to any of the inmates of the building as alleged. furthermore, there has been much hue and cry that all the car parking spaces have been covered whereas despite the change of user at the ground floor, two car parking spaces are still there which are being used by the subsequent purchasers of the said premises.

 

The first and foremost question involved in the revisional applications is the authority and jurisdiction of the Special Officer (Building), KMC to pass demolition order as the Special Officer (Building), KMC is not the officer appointed in terms of the 1980 Act.By a judgment delivered by this Hon’ble Court (Harish Tandon,J.) on 2^ndDecember,2015 in the case of Susama Saha Vs. Kolkata Municipal Corporation reported in 2015(5)CHN 309,this Hon’ble Court held that the Special Officer(Building),KMC was not the officer appointed under the 1980 Act and could not be appointed by the Municipal Commissioner as such. Therefore, the Special Officer(Building),KMC was not having any jurisdiction to pass the order of demolition. Therefore, the demolition order passed by the Special Officer (Building), KMC suffers from the jurisdictional defect of coram non judice. The said judgment of this Hon’ble Court was carried in a Special Leave Petition by the KMC before the Hon’ble Supreme Court of India and the same was dismissed by the Hon’ble Supreme Court of India with liberty as prayed for by the KMC to seek review of the said judgment. A review application has been filed in this Hon’ble Court by the KMC and the same is still pending adjudication. Therefore, as on date, the judgment delivered by this Hon’ble Court in the case of Susama Saha (supra) holds good and in one of the decisions concerning the similar question, a Co-ordinate Bench of this Hon’ble Court(Partha Sarathi Sen,J.) in C.O.1089 of 2008 (Sri Nemai Naskar Vs. Sri Pradip Acharya & Ors.) followed the decision of Susama Saha (supra) as binding precedent and allowed the revisional application by setting aside the orders passed by the Special Officer(Building)KMC as well as the Municipal Building Tribunal and remanded the same to the KMC to start the proceeding de novo.

Copies of the judgment delivered in the case of Susama Saha (supra) and the subsequent judgment of a Co-ordinate Bench of this Hon’ble Court following the case of Susama Saha (supra) as binding precedent are enclosed herewith.

 

One more striking point is that the Tribunal has held that the deviations are not minor but major in nature. The Tribunal failed to consider the Kolkata Municipal Corporation (Regularization of Building) Regulations,2015 which came into effect on 20^thJune,2015, i.e., prior to the date of hearing of the appeal by the Tribunal wherein the KMC was empowered to regularize these kinds of deviations which are minor in nature. The Tribunal held that the deviations cannot be treated as minor deviations only because the same are causing inconvenience to the inmates of the building whereas the case remains that none of the inmates are complaining save and except the original owner. The regulations regarding regularization which came into effect in 2015 as aforesaid (“The 2015 Regulations” for short) did not specify or define as to which deviations would be treated as major and which deviations would be treated as minor.

​A copy of the 2015 Regulations is enclosed herewith. 

 

Therefore, the core jurisdictional question as to whether the Special Officer (Building), KMC was having jurisdiction to pass demolition order which is involved in the present revisional applications and has been held to be in favour of the petitioners in the case of Susama Saha (supra) and the subsequent decision of the Co-ordinate Bench of this Court rendered in C.O. 1089 of 2008, it is clear that the order dated 16^thOctober,2012, apart from the factual irregularities, hit by the principles of coram non judice and as such, without jurisdiction and void ab initio. As a result, the order passed by the Tribunal impugned, this revisional application fails on the same score and the same is also liable to be set aside.The law is settled by this time that the question related to coram non judice could be taken at any stage of the proceeding, even in the appellate stage or in a collateral proceedings also.

 

​It is pertinent to mention to note here that the KMC did accept the judgment and order rendered in the case of Susama Saha(supra) as after pronouncement of judgment in Susama Saha(supra),an amendment was brought in Section 400(1) 4^thProviso which empowered the Municipal Commissioner to appoint Special Officer to whom the Municipal Commissioner would delegate his powers and functions to decide the demolition proceeding. Therefore, it is clear that the order passed on 16^th October,2012 passed by the Special Officer (Building),KMC was without jurisdiction and consequently, the decision of the Tribunal without considering the plea of coram non judice is also without jurisdiction and both are liable to be set aside.

 

The opposite party No.1 has proceeded against the petitioners in the third revisional application being the developers/promoters seeking compensation along with the prayer for bringing a Completion Certificate(CC) from the Kolkata Municipal Corporation before the District Consumer Forum. The opposite party No.1 is seriously pursuing the proceeding before the said consumer forum and in view of the pendency of the demolition proceeding and consequent appeal as well as the present revisional applications before this Hon’ble Court, the developers/promoters are not entitled to the Completion Certificate.

 

In case thisHon’ble Court sets aside the order passed by the Special Officer (Building), KMC dated 16^thOctober,2012 and consequent impugned order passed by the Municipal Building Tribunal on 18^thSeptember,2015 by following the ratio decided in case of Susama Saha(supra) which is a binding precedent followed by the other coordinate Bench judgment following Susama Saha(supra) as a binding precedent, in that event, thisHon’ble Court may be pleased to grant liberty to the petitioners in the third revisional application being the developers/promoters to approach the KMC to obtain the Completion Certificate(CC) so that the grievances of the opposite party No.1 regarding grant of Completion Certificate as claimed before the consumer forum is met. In the event the Hon’ble Court directs for initiation of the proceeding de novo, in that case, the Hon’ble Court may pass specific direction that so long the proceedings before the appropriate authorities would be pending, the opposite party No.1would not be able to proceed with the prayer for grant of Completion Certificate (CC) as against the petitioners in the third revisional application being the developers/promoters before the consumer forum.

 

Reply to the submissions made by the KMC:

 

The KMC has submitted that since this Hon’ble Court in various orders passed in the writ petitions at the instance of the present petitioners time to time directed the Special Officer (Building), KMC to hear the matter, now the petitioners cannot turn back and question the jurisdiction of the Special Officer (Building),KMC as the same would be hit by the principles of res judicata. Such a submission is contrary to the cardinal principles of law because the principles of res judicata applies only in factual matters whereas the present question is a pure question of law regarding coram non judice which goes to the root of the matter and could be questioned at any stage and the orders passed by this Hon’ble Court cannot be construed against the principles of law but in accordance with law. As such, the said plea is contrary to law as well as contrary to record.

 

The KMC has further submitted that the appeals as well as the revisional applications at the instance of the apartment owners, the subsequent purchasers, being the petitioners in the first and second revisional application are not maintainable because they are subsequent purchasers and only the proceedings are maintainable as against the developers/promoters. Such plea and/or submission is also grossly contrary to the materials on record as the materials on record would reveal that along with the developers/promoters, the subsequent purchasers also received notices of hearing and participated in the demolition proceeding before the Special Officer (Building), KMC. It would further reveal from the materials on record that there was no such plea before the Municipal Building Tribunal on behalf of the KMC and such plea has been made for the first time before this Hon’ble Court which is not maintainable at all being grossly contrary to the materials on record. It is surprising that the KMC has made submissions against their own record. The KMC has cited three orders of Co-ordinate Benches of this Hon’ble Court passed in C.O.1541 of 2018, C.O.3722 of 2015 and C.O.3355 of 2017 wherein the Hon’ble Court did not accept the plea of based on Susama Saha( supra) as the same was taken at a very belated stage and for the first time before the Hon’ble High Court. The cited decisions differed from the present revisional applications because of the reason that in the present cases, the plea of coram non judice was very much taken before the Municipal Building Tribunal which was not accepted by the Municipal Building Tribunal. Subsequently, the same was raised in this Hon’ble Court as would be evident from the grounds in support of the revisional applications. Therefore, the plea of taking the point of coram non judice at the belated stage on the basis of which those three cited decisions were decided by this Hon’ble Court would not be applicable in view of the facts and circumstances of the present revisional applications. As in the present revisional applications, the points were very well raised before the Tribunal, and it has not been raised for the first time in this Hon’ble Court. Therefore, those three decisions would not be applicable in the present case. 

 

Reply to the submissions of the opposite party No.1:

 

The opposite party No.1 has submitted that Section 400 of the 1980 Act is a procedural law and since the Municipal Commissioner has been empowered to appoint Special Officer(Building),KMC and delegate his power to the Special Officer to hear the demolition proceedings by way of amendment bringing the 4^thProviso to Section 400(1) of the 1980 Act, the procedural law would retrospectively be applicable and the question of coram non judice could be cured by applying the amended provision retrospectively in the instant case. In support of the submission, judgment delivered in the case reported in 1991 SCC Online (Cal) 148, 2003 (6) SCC 659 and 2024 (3) ICC 825 (Cal) have been cited. The said submission is incorrect on the face of it because Section 400 is not a procedural law but a substantive law being the only provision regarding demolition proceeding and the consequent reliefs including the appeal. Section 400 starts with the salutary word “Order of demolition and stoppage of buildings and works in certain cases and appeal”. The very salutary word of Section 400 makes it clear that Section 400 is a substantive provision of law and as such, the submission made on behalf of the opposite party No.1that the same is procedural and amendments could be applied retrospectively has no legs to stand. Law is very clear that the provision of appeal, apart from any other power, is a substantive right which is conferred by the statute and the power giving rights to prefer an appeal under Section 400 makes it absolutely clear that Section 400 is a substantive law and not a procedural law. Therefore, the submission of the opposite party No.1 with regard to applying the amended powers of the Municipal Commissioner brought by the amendments in the form of 4^thProviso in Section 400 (1) is absolutely illegal and unknown to law.

 

Submissions:

In the circumstances, the revisional applications may be allowed by holding that the order passed by the Special Officer (Building), KMC dated 16^thOctober,2012 and the consequent order impugned dated 18^thSeptember,2015 passed by the Municipal Building Tribunal, both be set aside and the petitioners in the third revisional application being the developers/promoters be granted liberty to approach the KMC to obtain the Completion Certificate (CC) as prayed for by the opposite party No.1 in all three revisional applications, in the consumer forum.