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Siddhartha Bhattacharjee Vs. Municipal Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. Nil of 1984
Judge
Reported inAIR1985Cal153
ActsCalcutta Municipal Act, 1951 - Section 561; ;Calcutta Municipal Rule - Rule 5(4); ;Constitution of India - Article 226
AppellantSiddhartha Bhattacharjee
RespondentMunicipal Corporation of Calcutta and ors.
Advocates:S.K. Roy Chowdhury, Adv.
DispositionPetition dismissed
Cases ReferredAjay Kumar Chose v. Corporation of Calcutta
Excerpt:
- .....rules 5(1) and 5(2) of the aforesaid schedule for demolition of the said premises on notice to the recorded owner and occupier. thereafter objections were filed by one probodh kumar dey as recorded owner of the said premises. several dates were fixed in 1978 and 1979 for considering the objections raised by the recorded owner in accordance with the provision of section 561 of the calcutta municipal act, 1951 but in spite of the adjournments neither the recorded owner nor his representative appeared at the hearing of the objections. thereafter on receipt of a complaint on 14th june, 1984 from lakshmi flour mills that a portion of the aforesaid building had already fallen, there was an inspection by the deputy city architect on 15th june, 1984. the deputy city architect on personal.....
Judgment:
ORDER

P.C. Borooah, J.

1. This application has been filed by the petitioner Siddhartha Bhattacharjee claiming to be the owner of premises No. 543, Rabindra Sarani, previously numbered as 242. Upper Chitpur Road within Shyampukur Police Station in Calcutta. The petitioner has challenged the validity of a notice dt. 26-6-1984 issued by the Commissioner of the Calcutta Municipal Corporation under Rule 5(4) of Schedule XVII of the Calcutta Municipal Act, 1951, inter alia, to the effect that premises No. 243, Rabindra Sarani would be demolished as it is a dangerous structure. A copy of this notice is included in Annexure 'A' to the petition.

2. Mr. Section K. Roy Chowdhury appearing on behalf of the petitioner has drawn my attention to paras 7 and 9 of the petition and submits that an employee of the Lakshmi Flour Mills of 542 Rabindra Sarani has caused and manipulated the demolition order with oblique motives. Both these paragraphs have been affirmed as true to the knowledge of the deponent. I fail to understand how such sweeping allegations made, inter alia, against the Corporation Authorities can be true to the knowledge of the deponent. On this ground alone this petition is entitled to be rejected in limine.

3. It has been pointed out to me by Mr. Banerjee appearing on behalf of the Corporation Authorities that as far back as on 7-7-77 the Deputy City Architect instituted proceedings under Rules 5(1) and 5(2) of the aforesaid Schedule for demolition of the said premises on notice to the recorded owner and occupier. Thereafter objections were filed by one Probodh Kumar Dey as recorded owner of the said premises. Several dates were fixed in 1978 and 1979 for considering the objections raised by the recorded owner in accordance with the provision of Section 561 of the Calcutta Municipal Act, 1951 but in spite of the adjournments neither the recorded owner nor his representative appeared at the hearing of the objections. Thereafter on receipt of a complaint on 14th June, 1984 from Lakshmi Flour Mills that a portion of the aforesaid building had already fallen, there was an inspection by the Deputy City Architect on 15th June, 1984. The Deputy City Architect on personal inspection being satisfied, issued the necessary order under Rule 5(4) and thereafter the Commissioner himself passed the impugned order and 2nd July, 1974 was fixed for demolition of the building. These statements of Mr. Banerjee have been made to the Court with reference to the records produced by the Corporation Authorities.

4. After these submissions were made Mr. Section K. Roy Chowdhury appearing on behalf of the petitioner submits that although his client was not the owner in 1977, he purchased the property in 1981. If the petitioner had actually purchased the property in 1981, I fail to understand why no steps were taken to have the necessary mutation in the Corporation records. Moreover, the petitioner is not entitled to any notice under Section 5(4) of the aforesaid Schedule.

5. Reference may also be made to a decision of this Court in the case of Ajay Kumar Chose v. Corporation of Calcutta reported in : AIR1956Cal410 , wherein it was inter alia held :

'Where a wall or building is in imminent danger of collapsing and there is no time to give notice, but the Commissioner is called upon to act at once, in the interest of public safety, he may proceed to take action under Sub-rule (4) of Rule 5, which in this respect supplied an omission. Under such circumstances, if notice has to be given and the parties heard, the very purpose of the repair or demolition would be frustrated. Thus, this sub-rule forms an exception to the rule of natural justice, namely, that in condemning a man to have his house pulled down, a judicial act is implied, and justice demands that the man should be heard.'

6. In the premises aforesaid, I dismiss this application, vacate the interim order. There will be no order as to costs.

7. All parties to act on a signed copy of the operative portion of the judgment.


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