Calcutta High Court
Sitaeam Ram vs Rajendra Ram And Ors on 29 April, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-3
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/164/2024
WITH WPO/1498/2023
GA/1/2024
GA/2/2024
SITAEAM RAM.
VS
RAJENDRA RAM AND ORS.
.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE The Hon'ble JUSTICE PRASENJIT BISWAS Date : 29TH April, 2024. .
Appearance:
Mr. Rudranil De, Adv.
Mr. Subhronil Ghosh, Adv.
......for appellant Ms. Sweta Gandhi, Adv.
...for respondent no.1 Mr. Alak Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
...for KMC Mr. Debangshu Dinda, Adv.
...for the State.
The Court:-
GA/1/2024.
This application has been taken out for leave to prefer appeal against an order dated April 19, 2024, passed by a learned Judge of this Court in WPO/1498/2023, being a writ petition filed by the respondent no. 1 herein. By the said order, the learned Judge has directed implementation of the decision of Kolkata Municipal Corporation (in 2 short 'KMC') to demolish certain unauthorised constructions. To be precise, 18 unauthorised constructions in the Tiljala area are the subject matter of the writ petition.
The applicant says that he is the tenant in respect of 139/1E, Tiljala Road, Kolkata, which is one of the aforesaid 18 premises. He says that he is not aware of any demolition proceedings having been initiated by KMC. He will be gravely prejudiced if the order dated April 19, 2024, is given effect to. Hence he intends to challenge such order.
Having heard learned Advocates for the applicant, we are of the view that the applicant may have something to say about the order dated April 19, 2024. Hence we grant him leave to prefer appeal.
GA/1/2024 is disposed of.
GA/2/2024 and APOT/164/2024.
By consent of the parties, the appeal and the application are taken up together for hearing.
The appellant says that he is entitled to a hearing before the KMC authorities before any coercive action is taken in respect of the building, where he is a tenant.
He further says that no notice of any proceeding under Section 400(1) of the KMC Act, 1980, was ever served on him. He was not made a party to the writ petition. The KMC authorities cannot take steps for demolition of any unauthorised structure merely on the basis of a direction of the Court. KMC authorities have to follow due procedure 3 prescribed by the statute. The appellant says that the order of the learned single Judge should be set aside.
We find from records that when the writ petition was moved, initially an order dated September 21, 2023 was passed by the learned Judge, the relevant portion whereof reads as follows:
"The Court: The petitioner has filed the writ petition alleging illegal and unauthorized construction in respect of eighteen structures which have allegedly been constructed in violation of the Municipal Corporation building rules and regulations.
Learned Advocate representing the respondent no. 15 submits, upon instruction that, construction has been made in accordance with the plan sanctioned by the Corporation.
Respondent no. 15 is directed to produce copy of the sanctioned plan pursuant to which the construction has been made.
Perused the report filed by the engineers of the Kolkata Municipal Corporation. The said report does not disclose the dates on which steps were taken by the Corporation to proceed against the unauthorised construction work that was brought to the notice of the Corporation.
Report has been filed on behalf of Karya Police Station signed by the Officer-in-Charge on 18.08.2023.
Learned advocate representing the State respndents is directed to take instruction from the Controller, Kolkata Thika Tenancy as to whether the subject premises are recorded as thika or not. 4
Report shall be placed before this Court by the Controller, Kolkata Thika Tenancy on the adjourned date.
Executive Engineer of the concerned Borough is directed to file a report by way of affidavit disclosing details of the action taken in respect of the structures which were detected to be constructed in violation of the provisions of law."
On October 11, 2023, a further order was recorded by the learned Judge which reads as follows:
"The Court:- Report filed by the Kolkata Municipal Corporation is taken on record. Copy of the same has been served upon the learned advocates representing the parties in Court today. Parties will be entitled to file exception to the same prior to the adjourned date.
Accommodation has been sought for on behalf of the learned advocate representing the State respondents.
Let the matter appear in the list on 22.11.2023. Person responsible is restrained from carrying on any construction until further orders.
Private respondent is also restrained from transferring/alienating or creating third party right in respect of the subject premises until further orders.
Report shall be placed before this Court by the Controller, Kolkata Thika Tenancy on the adjourned date.
Affidavit of service filed in Court today is taken on record." 5 Orders were also passed on November 22, 2023 and December 13, 2022, which may not be very relevant for the present purpose.
On February 20, 2024, the learned Judge recorded the submission made on behalf of the writ petitioner that despite issuance of stop work notice in respect of some of the concerned premises, the persons responsible were continuing with the construction work. The learned Judge called for an updated report from KMC.
The next order was passed on March 12, 2024 which reads as follows:
"The Court:- Perused the instruction forwarded by the engineers of the Kolkata Municipal Corporation, Borough VII signed on 11.03.2024. Out of eighteen properties complained of in only nine of them the Corporation took steps under Section 400[8] of the Kolkata Municipal Corporation Act, 1980. The instruction mentions that the demolition took place in a portion of the unauthorised construction. Demolition of the entire construction, however, is yet to be made.
In respect of two properties proceeding under Section 400 of the Act has been initiated. The instruction does not mention as to the sub-section of Section 400 under which the proceeding is being conducted.
In respect of remaining seven properties, the Corporation failed to identify the structure because either they are un-assessed property or otherwise they are old structures and no new construction could be found.
The Court fails to understand as to how despite having a specific premises number, the Corporation failed to identify the property. The 6 property may be un-assessed on account of non payment of property tax, but it should not be difficult for the Corporation to identify the same. The same can be done by noticing the premises number and the premises number of the adjoining premises.
On the prayer of the learned advocate representing the Corporation, the writ petition stands adjourned till 15.04.2024.
The Corporation is directed to conclude the demolition process in respect of the nine structures where Section 400[8] has been invoked. The photographs of the individual structures showing the demolition work shall be produced before this Court on the adjourned date.
As regards the other constructions, an updated report shall be placed before this Court.
All steps shall be taken to deal with the unauthorised constructions strictly in accordance with law.
The interim order that is subsisting is extended till 30.04.2024 or until further order, whichever is earlier."
Finally the order dated April 19, 2024 was passed which is sought to be impugned in the present appeal. The material portion of the impugned order reads as follows:
"The Court:- Perused the report and the photographs in support thereof filed by the engineers of the Kolkata Municipal Corporation signed on 12.04.2024. As many as nine properties have been demolished. The photographs produced shows that the 7 Corporation as merely made holes in the ceiling but the outer structure of the subject premises are absolutely intact.
It is seen that if the outer structure is also not demolished, the person responsible repairs the holes and starts using the unauthorized construction. The same cannot be permitted. If the construction has been detected to be an unauthorized one and part demolition has been made, then the Corporation ought to take steps to demolish the entire structure, both the interior and exterior, so that the structure cannot be repaired and made habitable.
Six of the structures have been found to be old ones and no new construction found at the time of inspection. The engineers have not been disclosed how old these structures are. The engineers ought to satisfy themselves that the structures were constructed in accordance with the sanctioned plan. It may be that the structures are old but they do not have any sanctioned plan, craftsmanship of the structure is not known, the quality of the materials used at the time of construction is also unknown. The structural stability of the said structures ought to be verified to ascertain as to whether these structures were constructed in accordance with law or not.
The Corporation is directed to demolish the outer structures of the nine constructions where Section 400(8) provision has been invoked. As regards the structures which could not be identified as they are un-assessed property, is also required to be verified. 8
Let a further updated report be placed before this Court on 20th May, 2024.
The interim order that is subsisting is extended till 24.05.2024 or until further order, whichever is earlier."
We, therefore, see that eighteen unauthorised structures have come up in the Tiljala area of Kolkata, without being supported by any sanctioned building plan. The appellant claims to be a tenant of one of such premises. The Mayor-in-Council of KMC has passed a resolution invoking the emergency provision of Section 400(8) of the Act, 1980, for demolition of the concerned illegal structure. No opportunity of hearing is contemplated by that emergency provision. The appellant is in any event not the person responsible for the illegal construction as he says. He, however, says that he has spent good money to acquire tenancy in respect of the concerned premises.
We may have full sympathy for the appellant who may have been taken for a ride by the person responsible who raised the unauthorised construction. However, no order can be passed on the basis of sympathy. Law must take its own course. Unauthorised constructions cannot be allowed to stand. It is not that the demolition is contemplated only on the basis of the order of the learned single Judge. Kolkata Municipal Corporation authorities have applied their mind and have taken the decision to demolish the illegal construction. The learned Judge, by the impugned order, has merely directed implementation of 9 such decision. We find no infirmity in the order of the learned Judge as would persuade us to interfere. This appeal is completely meritless.
The appeal and the connected application are dismissed with costs assessed at Rs.10,000/- to be paid to the State Legal Services Authority, West Bengal within a fortnight from date.
Let a copy of this order be sent to the Member Secretary, State Legal Services Authority, West Bengal, forthwith. In the event the appellant fails to pay the cost within a fortnight from date, the Member Secretary shall draw the same to our attention. Let this matter be listed on May 15, 2024, under the heading "To be Mentioned" only for the purpose of ascertaining whether or not the appellant has paid the cost as directed by this order.
Since we have not called for affidavits, the allegations made in the application are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J) (PRASENJIT BISWAS, J.) dg/sm