SANKAR DUTTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) The petitioner has moved the writ application challenging the two notices addressed to respondent No.6, Chandra Nath Banik; and one to the owner or occupier of premises Nos. 26 and 2.6/7, Hindusthan Park (now 26, Hindusthan Park). The two notices issued to the respondent No. 6 are dated 14th July, 1978 and 28th August, 1978, issued by the District Building Surveyor, Dist. No. IX(B) and the Deputy. City Architect, respectively, while the last notice is dated 1st September, 1978 signed by several officials including the City Architect and the Deputy Commissioner (A). The notice dated 14th July, 1978 issued by the D.B.S. directed the respondent No.6 that the impugned structure (i.e. the 9th and 10th storeys = 8th and 9th floors) of the said premises shown in the sketch map be demolished by the respondent No.6 failing which the demolition would be undertaken by the Corporation. The notice dated 28th August, 1978 by the Deputy City Architect fixed the date of demolition on 22nd September, 1978. The notice dated 1st September, 1978 under section 557 of the Calcutta Municipal Act, 1951 was issued under the signature of several officers including the Deputy Commissioner(A) directed the owner or occupier of the said premises that the D.B.S. and B.I. have been empowered by the Commissioner to enter into the aforesaid premises on 22nd September, 1978 at the specified hour to carry out the demolition of unauthorised construction on 9th and 10th storeys of the building as directed by the Deputy Commissioner(P) by his order dated 30th June, 1978 under section 414 of the Calcutta Municipal Act, 1951.

(2.) The case of the petitioner is that he is a tenant in respect of the 9th and 10th floors (actually it should be 8th and 9th floors or 9th and 10th storeys as appears from the Corporation record) of premises No.26 and 26/7, Hindusthan Park (now 26, Hindusthan Park, Calcutta} since 1963. He came to learn sometime in 19731 that the Corporation authorities would demolish the portion under his occupation in terms of an order dated 30th June, 1978 passed by the Deputy Commissioner. Thereafter he narrated the incident as indicated hereinbefore and stated that the notice was addressed to respondent No.6 and not to him. His case is that the Corporation never did issue any notice to him to show cause or gave any opportunity of hearing as to why the premises should not be demolished. He has a right to get an opportunity to place his case before the authorities otherwise there cannot be any substantial compliance of sections 414 and 557 of the Act of 1951. It is admitted in the petitioner that the Corporation did start a proceeding against the respondent No.6. It is further stated in the petition that the respondent No.6 sometime in 1967 by a registered deed relinquished his right, title and interest in the said property and dedicated it to Sri Sri Iswar Radhagobinda Jew with one Sm. Nirmala Banik as Shebait.

(3.) Mr. Habibullah, learned Advocate appearing for the petitioner, in his submissions stated that as an occupier of the 9th and 10th storeys of the premises in question he has the locus standi to come before this Court for the redress of his grievances. There is nothing in the statute that a person must be recorded or bona fide occupier. In this connection he has cited a decision reported in AIR 1982 Cal. 314 (Ram Awatar Agarwal and others v. Corporation of Calcutta and others). According to the learned Advocate, an occupier has the full right and locus standi to be heard if he is affected in any way keeping in view of the principles of natural justice and in this connection he cited a decision of my own in the case of Maula Bux v. State of West Bengal and others, reported in 1990(1) CLJ 124 = AIR 1990 Cal. 318 = CAL. LT. 1990 HC 174 = 1990(1) CHN 233. Mr. Habibullah's further argument is that in section under 414 of the said Act no action can be taken under section 557 of the Act because an occupier is not only entitled to a notice under section 414 of the Act but also a notice under section 557 of the Act. He repeated the contention once again in another way by submitting that if section 414(1) and (3) of the Act debars notice to an occupier then the statute itself is violative of natural justice because a statute which forbids or excludes from giving hearing to persons to be affected by an order of demolition is bad in law. A person who has been denied hearing by the authorities cannot be asked to vacate or give up his interest however limited it might be. He has referred to the aforesaid decision in the case of Ram Awatar Agarwalla (supra) and quoted Their Lordships that where local Board is the only authority that can make such an order, its act must be judicial act, and the party to be affected should have a notice given to him. The denial of notice is discriminatory and the Corporation has no leg to stand on the plea that an Occupier he is not entitled to any notice under section 414 of the Act and as in this case no such notice has been served upon the petitioner, the order of demolition is wholly bad. He further took a point that the merger of the two notices addressed to the owner or occupier of the said premises dated 1st September, 1978 is also defective.