SAMIR BISWAS Vs. MUNICIPAL COMMISSIONER, G.M.S.

JUDGEMENT

(1.) The short question which we have been invited to resolve in the present proceeding relates to the meaning of two terms used in Sec. 400 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act). These two terms are 'the person at whose instance' mentioned in Sub -section (1) of the said Sec. 400 of the said Act and 'any person aggrieved' in Sub -section (3) of the said Sec. and the propriety of the impugned order dated May 12,1992, passed by the Municipal Corporation Building Tribunal, depends on our finding as to the import of the said two terms.

(2.) From the materials placed before us, it appears that on a complaint lodged by the Respondent No. 4, a demolition proceeding was initiated, upon a notice to the Respondent No. 3, which culminated with an order of demolition under Sec. 400, ex parte, as far as the Petitioners are concerned ; on an appeal before the Building Tribunal, preferred by the Petitioners, claiming to be joint owners in respect of the said property and further asserting the disputed structures to be more than 30 years old, in terms of Sec. 400(3) of the said Act, the Building Tribunal dismissed the same upon a finding that the Appellants/Petitioners not being persons "at whose instance the erection or the work had been made" did not have locus standi to maintain the appeal.

(3.) We have given our anxious consideration to the question raised and the submissions made by the respective Counsel. According to us, the user of two different terms in Sub -sections (1) and (3) of Sec. 400 is a clear pointer of the legislative intent of assigning different meaning? and import to the two terms. The explanation to Sub -section (1) illustrates that there may be different types of interest -holders regarding the property on which or pertaining to which the unauthorised construction may be made and direction for demolition, on any of the said categories of persons, may prejudicially affect the interest of other categories of persons. Such a contingency cannot be totally ruled out. In the context of possibility of such prejudices, if the definition and meaning of 'aggrieved persons' as imparted and determinant criteria as laid down by the Supreme Court in the case of Jasbhai Motibhai Desai v/s. Roshan Kumar, Haji Bashir Ahmed and Ors. : A.I.R. 1976 S.C. 578 are applied, the Appellants/ Petitioners fall squarely in the category of 'aggrieved persons' as used in Sub -section (3) of the said Sec. 400. This elasticity to the definition is a necessity for the sake of justice and as such the dismissal of the appeal by the Building Tribunal, on the reasons as given, cannot be sustained. We, however, hasten to add that each case has to be judged on its facts and circumstances. A presumption on the basis of relationship of father and sons between the Appellants/Petitioners and Mahadev Biswas in the facts and circumstances of the present case is of no consequence. For the reasons aforesaid, we find that the appeal at the instance of the Petitioners, is maintainable.