Calcutta High Court
Amiya Kumar Shau vs The Kolkata Municipal Corporation & Ors on 18 January, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
GA No. 3772 of 2016
APOT No. 460 of 2016
WP No. 967 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
AMIYA KUMAR SHAU
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
The Hon'ble JUSTICE SANKAR ACHARYYA
Date : 18th January, 2017.
Mr. Ranjan Deb, Sr. Adv.
Mr. Subrata Kr. Basu, Adv.
Mr. S. Chakraborty, Adv.
...for the appellant
Mr. Gurudas Mitra,
Mr. Sourav Chaudhuri, Advs.
...for respondent nos. 1 to 4
Mr. R. Chatterjee, Mr. A. Dey, Advs.
...for respondent nos. 6 to 10 The Court : It appears that an affidavit of service has already been filed in Court earlier.
By consent of the parties, the appeal is treated as on the day's list and taken up for consideration along with the application for stay. 2
This appeal arises out of an order dated 10th November, 2016 passed by the learned Single Judge in W.P. No. 967 of 2016 (Moni Mohan Dutta & Ors. Vs. The Kolkata Municipal Corporation & Ors.). The appellant herein was a private respondent no. 6 in the writ proceeding. The impugned order begins with the following paragraph :
"The order which I now pass in this new writ can be taken to be as one for implementation of the order dated 12th July 2016 disposing of an earlier writ, (WP No.673 of 2016 Moni Mohan Dutta & Ors. Vs. Kolkata Municipal Corporation & Ors.)."
It is, therefore, necessary to advert to the order dated 12th July, 2016 passed in the earlier writ petition, being W.P. No. 673 of 2016 (Moni Mohan Dutta & Ors. vs. Kolkata Municipal Corporation & Ors.). The operative portion of the order dated 12th July, 2016 reads as follows :
"I have seen the photographs and I fully agree with the submission of Mr. Mitra, the learned Advocate for the Kolkata Municipal Corporation that the building immediately requires attention and otherwise there is every possibility of its collapsing causing severe danger to the people around. Since the owner has already submitted the plan I direct the Corporation Authorities to consider and dispose of the same specifically within a period of three weeks from today. Considering the condition of the building the time frame fixed by this Court is to be treated as mandatory. The Corporation Authorities are directed to act with utmost expedition so that the building does not become source of any danger to any person.3
Mr. Chakraborty on instruction from his client, who is present in Court, undertakes in Court that after completion of the new building the existing tenants will be rehabilitated at their respective shops with the identical size of the shop room.
With the above direction the writ petition is disposed of.
It is made clear that if the Corporation sanctions the new building plan in favour of the owner they shall make construction as expeditiously as possible, but positively within a period of six months from the date of delivery of possession by the tenants.
It is further made clear that during the interregnum period i.e. before the plan is sanctioned if it either appears to the tenants or to the owner of the building that any part of the building requires an immediate attention they shall be at liberty to make repair of the same and the parties are directed to cooperate with each other so that it does not cause any hazard to anybody. The authorities are directed to act on the communication of the learned Advocate for the Kolkata Municipal Corporation without insisting on a certified copy of the order."
According to the appellant, while passing the impugned order, the learned Single Judge has essentially obliterated the effect of the order dated 12th July, 2016, although it was held by the learned Single Judge in the impugned order at the very outset that it was to be taken as one for implementation of the order dated 12th July, 2016.
In order to evaluate the correctness of such submission made on behalf of the appellant, it is necessary to examine the impugned order in the light of the operative portion of the order dated 12th July, 2016. For the 4 said purpose the relevant portion of the impugned order dated 10th November, 2016 is quoted hereinbelow :
"The respondent developer, it seems, has already submitted a plan to the Kolkata Municipal Corporation, for sanction, ostensibly, in furtherance of the said order. While Mr. Ghosh for the owner developer submits that this plan is for full-scale development of the property by rebuilding it, Mr. Chatterjee for the petitioners says that on examination of the plan it appears that it is only for repair and renovation of the building. Hence his clients be permitted to remain possessed of their respective areas of occupation.
At this point of time, considering all circumstances it would be prudent to accept the version of Mr. Ghosh and treat the proposed building plan as one for large scale rebuilding of the property.
In those circumstances, how can the respective interests of the parties be preserved in terms of the order dated 12th July 2016 ?
For the time being, the petitioners will be entitled to remain in possession of the respective areas and no further building or construction work is to be carried out unless and until the conditions mentioned herein below are fulfilled.
The writ petitioners have been shown alternative accommodation behind the property in question. Mr. Ghosh submits that this accommodation has been earmarked for them. They will satisfy themselves with regard to the accommodation and the nature of occupancy they are being offered. Once they are so satisfied, they will express their willingness to shift to the new accommodation.
Concurrently an agreement will be executed between the petitioners and the owner developer with regard to the accommodation which each of the petitioners will ultimately be given in the building after it is rebuilt together with a time frame within which the construction has to be commenced, completed and possession thereof handed 5 over to each of the petitioners. This agreement will have to be duly registered. The petitioners will be provided areas in the new building as indicated in a table set out below :
Shop No. Name of tenant Area occupied by Area proposed in Physical possession Sanctioned plan.
(Sq m) (Sq m)
1 Moni Mohan Dutta 2.10x8.10=17.01 2.10x8.10=17.01
2 Gouri Basak, Avijit Basak 1.83x8.10=14.823 1.83x8.10=14.823
& Saswati Bhoumick
3 Samit Talukdar, Pramit 2.2x8.10=17.82 2.2x8.10=17.82
Talukdar & Ramit
Talukdar
4 Sankar Samanta 4.6x8.10=37.26 4.6x8.10=37.26
5 Thakur Prasad Dhar 2.165x8.10=17.563 2.165x8.10=17.563
There should be a proper plan annexed to the said agreement. Upon completion of the new building and obtainment of the occupancy certificate, the petitioners should be rehabilitated in the above areas of it.
I make it clear that all these facts, figures and conditions should be contained in the agreement along with the usual covenants. The petitioners will shift to the alternative accommodation immediately on execution and registration of the above agreement.
There should be a default clause that in case the said respondent is unable to hand over possession of the specified areas to the petitioners or any of them, he or they will have a charge over that area like a mortgagee. He or they will be entitled to sell those portions and realise the value thereof.
The above exercise should be undertaken under the supervision of the Joint Special Officers appointed by this Court. Mr. R.N.Bandopadhyay, Advocate, Bar 6 Association Room No.1 (Ex Joint Secretary, Ministry of Law Kolkata) and Mrs. Shanti Das, Ex State Government Advocate, Bar Association, are appointed as Joint Special Officers at an initial remuneration of 1500 GMs and 900 GMs respectively to be paid by the respondent No.6 to supervise and implement the provisions of this order. All disputes between the parties are to be referred to and resolved by the Joint Special Officers. The parties will be bound by such decision. The Joint Special Officers will also supervise the construction of the building. All objections and suggestions may be put forward before them which they will deal with immediately. Such decision will also be binding upon the parries."
A plain reading of the extract of the impugned order, as quoted above, reveals that it gives an entirely new dimension to the true scope, purport and effect of the order dated 12th July, 2016 and is not merely for implementation of the order dated 12th July, 2016, as observed by the learned Single Judge at the very outset. While the impugned order dated 10th November, 2016 - to the extent it does not run contrary to the specific directions as contained in the order dated 12th July, 2016 - does not require any interference, the part of the impugned order which gives a complete new dimension to the matter however is required to be interfered with.
At this stage, we take note of an undertaking in the form of an affidavit filed before us today by the appellant wherein the following statement has been made in paragraph 3 :
7
"3. In accordance with the aforesaid direction of the Hon'ble Appeal Court I am submitting this undertaking that I shall rehabilitate the occupants named below at their shops with identical area and dimension as at present, in accordance with the sanction granted by the Kolkata Municipal Corporation within six months from the date of delivery of possession by the said occupants to me (Landlord/Appellant/Petitioner).
SL. No. Shop No. (As shown in the Name
Sanctioned plan)
1 1 Moni Mohan Dutta
2 2 Smt. Gouri Basak
Abhijit Basak
Smt. Saswati Bhowmick
3 3 Samit Talukdar
Promit Talukdar
Ramit Talukdar
4 4 Sankar Samanta
5 5 Thakur Prasad Dhar
Considering the specific undertaking given by the appellant, as quoted above, we dispose of the appeal along with the application for stay by observing that the appellant shall ensure strict adherence to the direction as contained in the order dated 12th July, 2016 (read with the undertaking given before this Court, as quoted above) and nothing contrary thereto as stated in the impugned order dated 10th November, 2016 shall be required to be given any effect to.
We make it clear that in the event, the private respondent nos. 6 to 10 herein do not hand over possession of the shop rooms to the appellant 8 within three weeks from date, the undertaking given before this Court by the appellant shall be deemed to have lapsed and will have no effect.
(BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.) TR/