2000 INSC 0162
                                        SUPREME COURT OF INDIA

                                        Municipal Commissioner, Calcutta

                                                           Vs.

                                                Salil Kumar Banerjee

                                (S.P. Bharucha, N. S. Hegde and Ruma Pal JJ.)

                                                      03.02.2000

                                                       ORDER

S.P. BHARUCHA, J.

1. We find the conduct of the first respondent thoroughly dishonest.

2. The first respondent was required by the appellant to demolish a construction that he had put up.
He challenged the order of demolition before the Building Tribunal constituted in this behalf under
the Municipal Corporation Act, 1980. The decision of the Tribunal having gone against him, he
filed a writ petition be fore the High Court at Calcutta and con tended that the Tribunal which had
heard and disposed of his appeal was improperly constituted in that it consisted of only two
members. The writ petition was allowed and the Municipal Corporation has filed this appeal there
against by special leave.

3. At the time the demolition order was passed, the provisions of the Calcutta Municipal Act, 1951
were in force. It pro vided for the Constitution of a Building Tribunal under Section 391-B. It was
to consist of a President and two assessOrs. It was empowered under Section 391-A read with
Section 414-A to hear appeals against orders passed by the Commissioner, which included orders
requiring demolition. Section 415 of the Calcutta Municipal Corporation Act, 1980, which replaced
the 1951 Act, originally provided for a Tribunal of a Chairman and two assessOrs. Section 415 was,
thereafter amended and the Tribunal was then to consist of a Chair man and such number of
members not exceeding six as the State Government might determines. The Chairman was
empowered to constitute one or more benches, each bench to comprise of atleast two members of
whom one would be a Judicial Member and the other would be a Technical Member. The 1980 Act,
in Section 631, made provisions for savings as to certain suits and proceedings. Sub-section (3)
thereof stated :

(3) Save as provided in Sub-section (2) the procedure laid down in this Act shall be followed in all
proceedings relating to be contravention of the provisions of the Calcutta Municipal Act, 1951.

4. In the first place, by reason of Section 631(3), the Tribunal that heard the first respondent's appeal
was properly constituted. That Sub-section expressly made provision that the procedure of the 1980
Act would be followed in respect of proceedings that related to contraventions of the 1951 Act. This
provision was overlooked by the High Court. The High Court also overlooked the fact that it was
the first respondent, the writ petitioner before it, who had filed the appeal under the 1980 Act before
the Tribunal and had at no stage before the Tribunal ever contended that it was improperly
constituted. Even assuming that it ought to have consisted of three or more members, had that
objection been taken at the initial stage of the hearing of the appeal before the Tribunal, that
position could have been rectified. Certainly, in circumstances such as these, the High Court ought
not to have exercised its discretion in favour of the first respondent.

5. The decision of this Court in Narhari Shivram Shet Narvekar v.Pannalal Umediram squarely
applies to the facts of the present case.

6. In the circumstances, the appeal is al lowed. The judgment and order under appeal is set aside.
The writ petition filed by the first respondent is dismissed. The first respondent shall pay to the
appellants and respondents No. 2 and 3 the costs of this appeal.

7. It is needless to say, having regard to the passage of time that the appellant must act expeditiously
to implement the order of the Tribunal.