Sabyasachi Bhattacharyya, J. - (1.) The present application under Article 227 of the Constitution of India has been filed against an order dated August 16, 2017 passed by the Municipal Building Tribunal of the Kolkata Municipal Corporation. Upon a demolition order being passed under Section 400 of the Kolkata Municipal Corporation Act, 1980 against the opposite party no. 1 by the Municipal Commissioner, Kolkata Municipal Corporation, the opposite party no. 1 preferred an appeal, bearing Building Tribunal Appeal no. 39 of 2011, before the Municipal Building Tribunal. In such appeal, the opposite party no. 4 sought to be impleaded as a co-appellant on the strength of his purchase of the disputed flat from the appellant/opposite party no. 1 on February 18, 2014. Such prayer was initially refused but, upon such refusal order being challenged in W.P. No. 2222(W) of 2016, this Court permitted the opposite party no. 4 vide Order dated February 25, 2016 to participate in the appeal and the Tribunal was directed to entertain such prayer of the opposite party no. 4. Thereafter, the opposite party no. 4 renewed his prayer for being impleaded in the appeal upon which, vide order dated May 5, 2016, the Tribunal added the opposite party no. 4 as respondent no. 4. The opposite party no. 4 thereafter prayed for transposition to the category of appellant, which was turned down.
(2.) It appears from the records that the opposite party no. 4 not only participated in the hearing of the appeal, albeit in the capacity of a respondent, but also filed written notes of arguments in the appeal. Subsequently, only after the conclusion of the hearing of the appeal, the opposite party filed a petition on July 28, 2017 for leave to file cross-objection, along with a memorandum of crossobjection. The primary premise of such cross-objection was that the officer, who passed the order of demolition, although designated as a Special Officer (Building), did not have the authority to discharge the function as a delegate of the Municipal Commissioner as contemplated under Section 48 of the Kolkata Municipal Corporation Act, 1980. As such, the opposite party no. 4 contended, such Officer did not have the power, authority or jurisdiction to dispose of the proceeding under Section 400 of the Kolkata Municipal Corporation Act, 1980 and to pass an order of demolition. The Tribunal, vide the impugned order dated August 16, 2017, allowed such prayer and granted the opposite party no. 4 leave to file cross-objection upon imposition of costs. The principal ground for granting such leave was that the question of lack of jurisdiction can be raised at any stage of the proceeding. This, despite the specific finding of the Tribunal that the opposite party no. 4 did not canvass such grievance either at the argument stage or in the lengthy written argument, comprised of 17 pages and annexures, filed by the opposite party no. 4. It was further found by the Tribunal that the issue of lack of jurisdiction of the Special Officer (Building) was an afterthought.
(3.) Upon service being completed, the present Revisional application is taken up for hearing. Learned counsel for the petitioner, who was the complainant before the Municipal Commissioner, argues that even if the question of lack of jurisdiction could have been urged at the inception of the proceeding, such issue could not be raised by the opposite party no. 4 at the fag end of the appeal, more so when both the opposite party no. 4 and his predecessor-in-interest, the opposite party no.1- appellant, participated throughout in the appeal and in the entire proceeding respectively. Learned Counsel for the petitioner cites two judgments, reported respectively at (Jupiter General Insce. Co. Ltd. v Corporation of Calcutta, 1956 AIR(Cal) 470) and at (Prasun Roy v The Calcutta Metropolitan Development Authority, 1988 AIR(SC) 205) which lay down the proposition that where the applicant participates in arbitration proceedings without protest and avails the proceedings, he cannot be heard, when he sees that the award has gone against him, to make an objection that the whole of the proceedings are without jurisdiction on the ground of a known disability of the other party.;