- (1.) The disputes involved in the present writ proceeding relate to Premises No. 30, Burtolla Street, Calcutta-700 007 (hereinafter referred to as the said building). Prior to initiation of the present writ proceeding there were other writ proceedings also in connection with the said building. It is not necessary to refer to all the prior writ proceedings except one which was instituted by the writ petitioner calling in question a notice dated 6.12.1999 (annexure-'P-15' of the writ application) issued by the Municipal Commissioner of the Calcutta Municipal Corporation (hereinafter referred to as the corporation) under section 411(4) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act), directing to demolish departmentally the northern and southern part of the balconies at 1st and 2nd floor and roof slab at front corridor and stair case including main walls at road side of the said building. By the aforesaid notice under section 411(4) of the said Act it was certified that the demolition was necessary forthwith for the safety of public or the inmates of the building. This notice under section 411(4) of the said Act was called in question by the writ petitioner in a writ proceeding which went up to the Division Bench of this high Court as Appeal No. 211 of 2000 (Bijoy Shankar Tewari & Ors. v. The Calcutta Municipal Corporation & Ors.) and the Division Bench by a judgment and order dated 4.8.2000 disposed of the aforesaid appeal. The relevant part of the aforesaid judgment and order of the Division Bench is set out hereunder: "On the one hand the Court cannot take upon it any responsibility by passing an order that a building although unfit for human consumption should not be demolished which may be dangerous for the life and property of the habitants thereof but on the other hand in absence of any proof that the authority of the Corporation had acted bonafide, it cannot also allow demolition of a building solely for the benefit of a private party. The Calcutta Municipal Corporation Act, 1980 is regulatory in nature. The Legislature has enacted the Act with the objects and salutary principles as is stated in the preamble thereof. Such a statutory provision contained in section 411 relates to safety of the inhabitants of the building and/or its neighbours, but the same cannot be permitted to the used by the authorities of the Corporation on their whims and caprice. An action in terms of such provision must be taken only when the concerned authority satisfies itself that the public interest demands that action is necessary to be taken thereunder. Satisfaction of the statutory authority was therefore sine qua non for acting in terms of the said provisions. The report of the Chief Municipal Engineer (Building) shows that such a satisfaction had not been reached nor can be reached unless experts of some institution examine the building. We are, therefore of the opinion that the Mayor of the Corporation be requested to constitute a body of experts consisting of three members so as to satisfy himself as also the statutory authority that condition precedent exists for exercising the power under sub-section 4 of section 11 of the Act. One of three such experts may be an Engineer from Jadavpur University and another may be a reputed Chartered Engineer of the City. We, therefore, set aside the order and direct the Corporation to act only upon satisfying itself that condition precedent for exercising the power under section 411 exists. In the event, if the Committee the experts is of the opinion that the repair of the building which although may entail a huge expenses would serve the purpose such a direction may be issued. We make this observation having regard to the observation made by the Chartered Engineers appointed by this Court. The appellant is at liberty to carry on such repair in respect whereof an order of sanction has been issued by the Corporation in this regard. But that does not mean that Corporation would not be entitled to take any action against the appellant if they are guilty of violation of the order of sanction as suggested by the Chief Engineer (Building) in his report as noticed hereinbefore. We may place on record that having regard to the limited prayer made before this Court, all questions shall remain open. Having regard to the peculiar situation involved in this appeal we would also request the appropriate Bench to consider the desirability of disposing of the suit which is pending since 1964 particularly in view of the order of the apex Court dated 12.4.2000 passed in Special Leave Petition (Civil) No. 3365 of 1997. The Registrar, O.S., is directed to place the matter before the Hon'ble the Chief Justice, if not already done. Parties may mention the matter before the appropriate Bench for early hereing of the suit. They would also be at liberty to file such application before the appropriate Bench, as may be advised, for such direction or directions as may be considered necessary. All parties are to act on a xeroxed certified copy of this judgment, to be delivered on priority basis, on the usual undertaking."
(2.) Thereafter a body of experts consisting of Prof. Dr. Sakti Ranjan Bhattacharya, M.C.E., Ph.d, F.I.E., F.A.E., M.I.S., M.I.G.S., M.A.S.C.E., M.I. Struct, E, Member of the Indian Society for Non destructive testing, Head of the Department of Civil Engineering, Jadavpur University, Shri Phalguni Bandopadhya, B.C.E.M. Sc, C. Eng, M.I. Struct. E. (London) Chartered Structural Engineer, Shri Shankar Das. B.E. (CAL) M.E. (CAL) Structural Consultant was constituted and the said body of experts submitted a report relating to the aforesaid building and thereafter a demolition order under section 411(1) has been issued. A copy of such demolition order admittedly, has not been served upon the writ petitioners. But the writ petitioners and other occupants of the said building were informed by a notice dated 12.6.2001 issued under section 411(2) of the said Act to vacate the said building within five days from 12.6.2001.
(3.) In the present writ proceeding the writ petitioners have prayed for an order in the nature of mandamus commanding the respondent Nos. 1 to 4 not to give any effect or further effect to the order dated 18.5.2001 passed by the Municipal Commissioner, the respondent No.3 and the order dated 19.5.20001 passed by the Mayor, the respondent No. 2 and the order passed by the Dy. Chief Engineer (Building), the respondent No. 4 bearing reference Dy. CE (B) North/140/2001-02 dated 12.6.2001 being annexure 'P-19' of the writ petition. The order dated 18.5.2001 passed by the Municipal Commissioner and the order dated 19.5.2001 passed by Mayor are set out hereunder: "Municipal Commissioner's Office Calcutta Municipal Corporation Sub: 30, Burtala Street, Calcutta-700 007. Hon'ble Mayor may kindly recall that the Division Bench of the Hon'ble High Court had on 20th September, 2000 requested Hon'ble Mayor to constitute a body of expert consisting of 3 members so as to satisfy himself that the condition precedent exists for exercising the power under section 411(4). The brief background of the case is that the building at 30 Burtala Street was in absolutely dilapidated condition and in the opinion of CMC dangerous to the habitants. The owners, however, had challenged the decision of the CMC in the Court. The then CMC (Building) was asked by the Hon'ble High Court to submit a report to the Court regarding the stability of the building. The report of the then CMC (Building) failed to satisfy the Hon'ble Court. The Division Bench requested Hon'ble Mayor to constitute a body of expert of which one would be from Jadavpur University and another may be the reputed Chartered Engineer from the city. Accordingly under order of Hon'ble Mayor the Committee was constituted. The Committee had since submitted their report which is placed below. I have examined the report of the Committee. The Committee has also carried out tests on the materials of the building to ascertain the approximate age of the building. In all the tests they have found that the building materials like brick, timber etc. is well below the safety limit and has deteriorated to a great extent. The Committee has finally concluded that even the building has to be repaired such repair would mean reconstructing the entire building. Actually they have advised against retaining the structure by carrying out repairs and they have recommended that the entire building to be demolished with sufficient care so that there is no loss of life during demolition. I have carefully gone through the report of the Expert Committee and I am of the view that the condition precedent exist to application of section 411(4) of CMC Act, 1980. Opinion of learned C.M.L.O. has also taken as to whether a hearing has to be given to the owners before passing a suitable order and the C.M.L.O. is of the view that a hearing has to be given before passing the appropriate order. The building still has tenants. In case the CMC has to demolish the building under section 411(4) the onus would lie on the CMC to have the building vacated and to spend money for demolition which can later be realised from the Owners which would be a long drawn process. Therefore, it is recommended that we may pass order under section 4121(1) where the onus of demolition of the building would lie on the owners. Hon'ble Mayor may kindly peruse the report of the Expert Committee and pass necessary orders. Submitted. Hon'ble Mayor Sd/- 18.5.01 MUNICIPAL COMMISSIONER Demolition order under section. 411(1) may be issued without further delay; after proper notice. Sd/- 19.5.01 MAYOR";