MANOJ DEVI Vs. MUNICIPAL COMMISSIONER CMC

JUDGEMENT

(1.) In exercise of power under Section 400 sub-section (8) of the Calcutta Municipal Corporation Act, 1980, a portion of the building was demolished on the ground of undertaking unauthorized construction. Challenging this action, the plaintiff-appellant had filed a suit against the Corporation contending that the Municipality be restrained from demolishing other portion of the building and had assailed the action taken under Section 400 sub-section (8) of the Act on the ground that it had breached the provisions contained in the sub-section itself. In the plaint, it has been averred that the property was purchased by the plaintiffs and his sister having moiety share. The learned Trial Court had dismissed the suit. The non-joinder of the sister in the suit is one of the grounds on which relief was denied. The second ground was that the date and particulars of the order passed under Section 400 sub-section (8) was not available from the pleading amounting to vagueness. The other ground is that the suit is otherwise barred under the provisions of the Act.

(2.) While supporting and opposing the application for injunction, both the learned Counsel had addressed the Court on merit of the appeal. We, therefore, propose to dispose of the appeal and application together. By consent of the parties, the appeal is treated as on day's list for hearing. "The appeal and the application are disposed of as hereafter. Appellant's submission :

(3.) Mr. Arindam Banerjee, learned Advocate for the appellant, points out that non-joinder of parties would not be fatal since the interest of the sister was being represented on the concept that both plaintiff and his sister were entitled to each particle of the property and that his sister had implicitly and impliedly consented to the representation of the estate by him since she did not raise any objection. On the question of bar of suit, he had pointed out that the principle is an accepted and settled proposition of law that when there is a prohibition from invoking the Civil Court's jurisdiction, the same does not exclude the Civil Court's jurisdiction altogether. It may prevent the Civil Court from questioning the justification or the validity of the order on merit but it does not take away the jurisdiction of the Civil Court to look into and examine the scope as to whether the jurisdiction, the action whereof is barred, was properly, validly and bona fide exercised without any breach of the provision. According to him, in this case the recording of the reasons in writing, which is mandatory under sub-section (8) of Section 400, had been infringed in the absence of any service of notice upon him and despite having admitted in the written statement the Corporation never referred to the particulars of the order nor disclosed the said order nor had produced anything to show the order before the Court and as such an adverse presumption was to be drawn with regard to breach and infringement of the process for exercising power under sub-section (8) of Section 400. His alternative argument was that no appeal is provided for under sub-section (3) of Section 400, which does not include an appeal from an action taken under sub-section (8) of Section 400 despite Section 415, inasmuch as this provision does not provide for appeal against such an order. Respondents' submission :