Brain Ghosh, J. - (1.) Since the facts of these cases and the law applicable thereto are same or similar, we propose to dispose of them by this common judgement.
(2.) In all these appeals writ petitions filed by the respondent-writ petitioners succeeded wherein validity of section 400(8) of the Calcutta Municipal Corporation Act, 1980 had been challenged.
(3.) Before these writ petitions were decided, another writ petition was considered by an Hon'ble single Judge of this Court. In that writ petition also validity of the said section of the said Act was challenged. The Hon'ble Judge by the judgement and order dated 9th December, 1987 dismiss the said writ petition on the principal ground that the writ petition was filed on mere apprehension that an order has been passed under the provision of the said section but from the records as produced, it did not appear that any such order has in fact been passed. The Hon'ble Judge held that the writ petition as framed is not maintainable as the same is merely speculative. The Hon'ble Judge, however, on being pressed by the petitioner went in to the validity of the said section and held as follows: "I could not discover any infirmity in that provision. The power is an emergency power, to be exercised only under certain special circumstances. It is only the Mayor-in-Council who can exercise this power. Mayor-in-Council has been defined in section 8 of the Act. It consists of the Mayor, the Deputy Mayor and not more than 10 other elected members of the Corporation. Therefore, the power has been given not to an individual but to a responsible body of the Corporation and the power is to be exercised only if the Mayor-in-Council is of the opinion that immediate action is called for. In other words, it is an emergency power and to be exercised if it is found that a building is being constructed in contravention of the provisions of the Act, the reasons for taking emergency action must be recorded in writing and then only the order to demolish the building forthwith can be passed. The petitioner has referred to section 400(1) of the Act and contended that the power to demolish is already there. If there is ordinary power to demolish in ordinary circumstances, I fail to see why vesting of emergency powers on the highest body of the Corporation should be ultra vires the Constitution. In course of argument an example was given to- the petitioner that suppose some construction was started at the middle of the night on the Chowringhee Road, will the Corporation have to go through the entire process of giving a hearing as envisaged in the Act before any order is passed for demolishing the construction? Will not the people of Calcutta suffer indefinitely in that case? In that situation,emergency power must be exercised. Similarly if it is found that a building has been built on private land without any sanctioned plan and that immediate action is needed, in that event,this emergency power has to be exercised. There can be no doubt that to exercise the power under the section there must be some ground justifying the exercise of the emergency power.";