SABITA NANDY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This case has a chequered history. The dispute between the parties is attributable to an alleged construction raised by the appellant, namely, Sabita Nandy (in short, Sabita) beyond the sanction plan dtd. 19/3/2003. The issue was first agitated by Sabita's neighbour, namely, Ganesh Chandra Patra (in short, Ganesh) by filing a writ petition being WP 21391 (W) of 2013. By an order dtd. 18/9/2013, the writ petition was rejected with an observation that if any comprehensive complaint is made, the municipal authority will take steps on such complaint. Ganesh thereafter filed a complaint on 3/12/2013 to the Rajarhat Gopalpur Municipality (in short, RGM). As the same was not considered, Ganesh filed WP 2128 (W) of 2014 which was disposed of by an order dtd. 6/8/2014 directing the Board of Councillors (in short, BOC) of the RGM to initiate proceeding under Sec. 218 of the West Bengal Municipal Act, 1993 (in short, the 1993 Act) and to conclude the same by passing a reasoned order. As the said order dtd. 6/8/2014 was not complied with, Ganesh preferred a contempt application being CPAN 2296 of 2014. In the said contempt application, an order was passed on 30/1/2017 directing the Commissioner of Bidhannagar Municipal Corporation (in short, BMC) to file a report by 2/3/2017 since the affairs of RGM were taken over by BMC. Thereafter, upon notice to the parties, a physical inspection was conducted on 20/2/2017 and a demolition order was passed by the Commissioner, BMC on 9/2/2018. Challenging the demolition order Sabita preferred a writ petition being WP No. 7672 (W) of 2018. Sabita, however, withdrew the said writ petition on 12/6/2018 and preferred a statutory appeal on 31/7/2018. During pendency of the said statutory appeal, Ganesh preferred a fresh writ petition being WPA No. 17998 (W) of 2018 seeking directions towards implementation of the demolition order. The said writ petition was disposed of by an order dtd. 27/9/2018 directing the appellate authority to consider and dispose of Sabita's appeal within twelve weeks. The pending contempt application thereafter came up for hearing on 8/2/2019 and the same was disposed of recording part compliance with liberty to Ganesh to take out a fresh contempt application, if there is any failure on the part of BMC to comply with the Court's order dtd. 6/3/2014 by 31/3/2019. Thereafter, in a writ petition being WPA 6780 of 2022 preferred by Ganesh for implementation of order of demolition, an interim order was passed on 11/7/2022 directing BMC 'to proceed with the demolition that is scheduled tomorrow (12/7/2022) strictly in accordance with law'. The writ petition was also made returnable on 18/7/2022 to ensure compliance of the directions. Challenging the said order dtd. 11/7/2022, Sabita preferred a mandamus appeal being MAT 1077 of 2022 which was dismissed by an order dtd. 15/7/2022. Challenging the said order, Sabita preferred a Special Leave Petition (in short, SLP). The same was disposed of by an order dtd. 3/8/2022 directing the registry of the High Court to list the writ petition preferred by Sabita being WP 15950 (W) of 2022 challenging the order of demolition before the appropriate Bench within a week and for such period the demolition order was stayed without prejudice to the rights and contentions of the respective parties. In the midst thereof, Ganesh preferred a fresh contempt petition being CPAN 1003 of 2019 as per liberty granted in the earlier contempt application. The same was disposed of by an order dtd. 4/11/2022 observing inter alia that 'when the Supreme Court as evident from its said order placed before us was desirous of disposal of the writ application, in my opinion, it would not be proper to exercise this Court's power in its contempt jurisdiction'. Pursuant to the order passed in the SLP, Sabita's writ petition was taken up for hearing and judgment was reserved on 8/8/2022 and BMC was directed not to take any step towards demolition till delivery of the judgment. In the midst thereof, Ganesh preferred a fresh writ petition being WPA 6780 of 2022 seeking implementation of the order of demolition which was heard by the learned Single Judge and was tagged with Sabita's writ petition being WPA 15950 of 2022 by an order dtd. 2/9/2022. Thereafter on 30/11/2022, Sabita's writ petition was dismissed. On the same date, in Ganesh's writ petition being WPA 6780 of 2022, BMC was directed to take steps to implement the order of demolition at the earliest, but positively within a period of four weeks from the date of communication of the order. The judgment dtd. 30/11/2022 passed in the writ petition being WP 15950 (W) of 2022 is the subject matter of challenge in the appeal being MAT 1988 of 2022 and the order dtd. 30/11/2022 passed in the writ petition being WPA 6780 of 2022 is the subject matter of challenge in the appeal being MAT 1987 of 2022 preferred by Sabita and her husband.

(2.) Mr. Banerjee, learned advocate appearing for the appellant submits that the impugned order of demolition was passed in derogation to the provisions of the West Bengal Municipal Corporation Act, 2006 (in short, 2006 Act). The appellant was not granted any reasonable opportunity of hearing prior to issuance of the demolition order and such violation of natural justice knocks down the said order with nullity. Such plea can be set up by a person against whom the order is sought to be used or executed, at any stage and in any proceedings including collateral proceedings. In support of such contention reliance has been placed upon a judgment delivered in the case of Nawab khan Abbas Khan Vs. the State of Gujarat, reported in (1974) 2 SCC 121 and an unreported judgment delivered in the case of Bina Saha versus The Kolkata Municipal Corporation and Others.

(3.) He argues that learned Judge failed to appreciate that on 20/2/2017, a mere inspection was conducted for the purpose of recording alleged deviation. The presence of the appellant during such inspection does not absolve the Commissioner from granting pre-decisional opportunity of hearing to the appellant.