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Judgment
Leave is granted to add one more respondent namely, Mr. Sanjoy Singh in whose name the impugned notice at page 118 has been issued by the Kolkata Municipal Corporation.
The present revision petition is directed against a judgment and order dated 11th October, 2017 passed by the Chairman, Municipal Building Tribunal, Kolkata Municipal Corporation in B.T. appeal No.77 of 2008. The said appeal in which the impugned order has been passed, was preferred by the petitioner challenging the order of demolition passed by the Special Officer (Building) in demolition case No.72-D/B-VII/2005-2006 in respect of the premises being No.5 Camac Street, Borough No.7, Kolkata and in the said appeal it was specifically challenged that the Special Officer (Building) had no jurisdiction to pass order of demolition. While passing the impugned order the Municipal Building Tribunal has held that since the petitioner has accepted a portion of the order passed by the Special Officer (Building) whereby it permitted the petitioner to retain a part of the building, his challenge to the other part of the order of demolition holding that the same is without jurisdiction, is not tenable. The learned Tribunal has held that the petitioner cannot be allowed to approbate and reprobate in the same breath.
From the order impugned it is apparent that the learned Tribunal has acted contrary to an earlier order passed by this Court being Annexure-E, at page 109 of the petition. The said order was passed on 18th July, 2017 whereby the Building Tribunal was requested to consider the issue of jurisdiction of the Special Officer who finally disposed the demolition case. But, it appears that the Building Tribunal while passing the impugned order has not considered the said request containing in the order dated 18th July, 2017 while C.O. 1882 of 2017 (Rajesh Kumar Gupta vs. Sanjoy Singh & Ors.), was disposed of.
It also appears to this Court that the justification on which the learned Tribunal has refused to consider the question of jurisdiction, is beyond any logic. His logic that without challenging the whole order, only a part cannot be challenged, is, equally unacceptable. The Tribunal, however, in my opinion, ought not to have disregarded the question which strikes at the very root of the matter because if an authority acts without jurisdiction the entire action becomes a nullity.
In such circumstances, the order impugned has to be interfered with in this revisional application and the petitioner is entitled to interim relief. Since the matter cannot be finally adjudicated now, the parties are directed to file their affidavits within three weeks, reply, if any, be filed within two weeks thereafter.
Let the matter appear in the list six weeks hence as "Contested Application".
However, the matter is very urgent inasmuch as attention of this Court has been drawn to the impugned notice being, Annexure-E at Page 118 of the writ petition which shows that the building is proposed to be demolished from 10:30 a.m. onwards today that is 31.07.2008. Having regard to such urgency the matter I am convinced that the interim order is required to be passed in order to protect the interest of the parties otherwise the revisional application itself will become infructuous and alternatively, if the petitioner succeeds and structure is demolished for want of interim relief, opposite parties may have to bear the burden of heavy costs.
In view of the finding made above, there shall be an interim order of stay of operation of the order impugned being, 11th October, 2017 passed by the Chairman, Municipal Building Tribunal, Kolkata Municipal Corporation in B.T. appeal No.77 of 2008, for a period of eight weeks from date, with liberty to pray for extension.
There shall also be an interim order of injunction restraining the Corporation Authorities including the Assistant Engineer, Borough 7 from acting any further on the basis of the impugned notice dated 17th January, 2018 being, Annexure-E at page 118 of the revisional application for a period of eight weeks from date of this order.
The learned advocate-on-record for the petitioner is directed to communicate this order forthwith.
Let it also be recorded that Mr. Chatterjee appearing for the petitioner, on request of the learned counsel for the Kolkata Municipal Corporation has supplied a copy of the revisional application.
Mr. Chatterjee alleged that an attempt was made to serve a copy of the revisional application upon the Kolkata Municipal Corporation and the same was refused.
The Corporation is also directed to act on the basis of the written communication of the advocate-on-record for the petitioner.
In view of the extreme urgency let a photostat plain copy of this order be supplied to the petitioner.