Ravi Krishan Kapur, J. - (1.) This petition is directed against an order dated 1st August, 2008 passed by the Municipal Building Tribunal in BT Appeal No.32 of 1999 (Sri Dijendra Chandra Roy vs. Municipal Commissioner and Ors.). By the impugned order the Tribunal had inter alia set aside an order passed in Demolition Case No.54- D/1999-2000 passed by the Special Officer dated 9th September, 1999.
(2.) The facts culminating in the filing of this petition are as follows: (a) The petitioner is the owner of a flat situated on the eastern side of the first floor of a building located at premises no.4B, Subgachi Second Lane, Kolkata - 39. The petitioner had purchased the flat by a deed of conveyance dated 23 July, 1997. The private respondent no.4 is the owner of the flat on the western side of the first floor of the same premises. (b) It is alleged on behalf of the petitioner that after the purchase of the said flat, the petitioner found that the alignment of the partition wall on the first floor of the flat was not in the same vertical line with the partition wall of the ground floor as shown in the sanctioned plan. In fact, according to the petitioner, the wall had been pushed inside the flat of the petitioner causing a variation of 0.80 meters on the eastern side. Thus, the disputed partition wall as alleged by the petitioner had been shifted inside his flat on the eastern side. This according to the petitioner was in deviation of the sanctioned building plan. (c) Thus, the crux of the complaint of the petitioner pertains to the shifting of a partition wall inside his flat contrary to and in violation of the sanctioned plan. (d) Upon a complaint being lodged by the petitioner with the Municipal Authorities, an inspection was carried out on 4 January, 1999 and the Inspection Officer detected an unauthorized construction and issued a notice under Section 400 (1) of the Kolkata Municipal Corporation Act, 1980 ("the said Act"). The Special Officer (B) who heard the Demolition Case, passed an order dated 9 September, 1999 directing both the petitioner and the private respondent no.4 to retain a common partition wall in conformity with the sanctioned building plan by shifting its present position to what was actually shown in the building plan under the supervision of an officer of the Kolkata Municipal Corporation. (e) Being dissatisfied with the order dated 9 September, 1999, the private respondent no.4 filed an appeal before the Tribunal which was numbered as B.T Appeal No. 32 of 1999. By an order dated 15 August, 2009 the Tribunal set aside the order dated 9 September, 1999 on the ground that the same was passed illegally and without jurisdiction. (f) The petitioner then filed a writ petition being WP No.1124 (W) of 2002 before this Hon'ble Court. By an order dated 13 June, 2006 a Single Judge of this Court set aside the order of the Tribunal and directed the Tribunal to pass orders in accordance with law and in terms of Section 400 (1) of the said Act. Being aggrieved by the order passed by the Single Judge dated 13 June, 2006, the private respondent no.4 filed an appeal. By an order dated 2 January, 2007, the Hon'ble Division Bench disposed of the appeal and refused to interfere with the order of the Single Judge. (g) Thereafter, B.T Appeal No.32 of 1999 was taken up for hearing. By an order dated 1 August, 2008 ("the impugned order") the Tribunal allowed the appeal of the respondent no.4 and set aside the order of the Special Officer dated 9 September, 1999 on inter alia the following grounds: i) That no sanction plan was placed before the Tribunal in order to establish that there was a deviation of the plan in raising of the internal partition wall. ii) The order of the Special Officer (Building) was silent as to in whose favour the plan had been sanctioned. iii) There was no infringement of the Building Rules of the Kolkata Municipal Corporation in shifting such wall. iv) There was nothing to show as to whose instance the District Building Inspector had visited the flat. v) The order of the Special Officer (Building) was silent as to the recitals of the registered deed and the legal consequences after the execution of the order of demolition and reconstruction of the shifting of the wall. vi) According to the Tribunal, the disputes between the petitioner and the private respondent no.4 were of a civil nature and therefore, could not be decided by the Tribunal. Moreover, according to the Tribunal a civil suit was also pending between the parties. (h) It is this order dated 1 August, 2008 ("the impugned order") passed by the Tribunal whereby the order dated 9 September, 1999 was set aside which is the subject matter of challenge in this petition. Notwithstanding directions having been given as far back as 2009 neither the Kolkata Municipal Corporation nor the private respondent no.4 chose to file any affidavit in opposition to the writ petition. The matter was taken up for hearing on diverse dates and both the petitioner and the Municipal Corporation filed their respective Notes of Arguments.
(3.) The petitioner challenged the impugned order on the ground that the same was misconceived and unwarranted. It was alleged on behalf of the petitioner that the Tribunal had failed to appreciate the true scope, purport and ambit of Section 400 (1) and that the Tribunal failed to properly exercise its jurisdiction. It was further alleged that there was an error apparent on the face of the records and the Tribunal has failed to take into consideration the records of the demolition case and that the Tribunal had completely ignored the documentary evidence of the demolition case in passing the impugned order. It was further alleged on behalf of the petitioner that the Tribunal failed to act on the directions of the High Court. The petitioner further alleged that there was no justification or foundation in the findings of the Tribunal that the disputes between the parties were civil in nature. The petitioner further alleges that the Tribunal erred in ignoring and disregarding the entire proceedings which arose out of the Demolition Case No.54-D/1999-2000 and erred in law in holding that the Special Officer had no jurisdiction to deal with the matter of unauthorized construction.;