Calcutta High Court (Appellete Side)
(Amal Mondal vs The Howrah Municipal Corporation & on 29 January, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
9 29.1.2018
jb.
W.P. 3323(W) of 2015
(Amal Mondal vs. The Howrah Municipal Corporation &
Ors.)
Mr. Mihir Kumar Das
.... For the Petitioner
Mr. Sandipan Banerjee
Mr. Sobhan Majumder
.... For the Respondent nos. 1-5
The writ petition is moved on service including on the non-State respondents Sri Sujit Karar and Sri Prasenjit Karar who are alleged to be making unauthorised construction in respect of the building being G+2 over 200 sq. ft. at holding No. 16A Ram Kalpa Khan Lane and over 400 sq. ft. of 16 B. Ram Kalpa Khan Lane without having obtained a sanctioned plan. It is the further case of the writ petitioner that on complaint being made to the Howrah Municipal Corporation in respect of this inter alia, on May 23, 2014, as far back as on August 13, 2014 direction was given by the Howrah Municipal Corporation on the said Sri Sujit Karar respondent no. 7 to cause demolition of the building at his own cost within thirty days pursuant to a hearing held on June 25, 2014 by the appropriate officer 2 where the concerned parties including the said respondent no. 7 was heard. The said Memo dated August 13, 2014 also records that the said respondent no. 7 attempted to make "Anumodanhin Naxabahirbhuta Nirman" that is to say sanction less construction beyond plan. Despite service of this writ petition having been effected on the respondent no. 7, on February 2, 2015 at the time of call none appeared for the respondent no. 7.
In such view of the matter, I hold that the respondent no. 7 has been duly served and has not appeared to contradict any submission made in this writ petition or seek any direction to file affidavits.
Learned counsel for the Howrah Municipal Corporation appears and submits that the matters stated in the writ petition are not incorrect but why the aforesaid order dated August 13, 2014 passed by the Howrah Municipal Corporation has not yet been enforced is something about which he will have to take instruction. 3
I consider once an order has been passed by an authority which has no jurisdiction to recall the same, it is incumbent on the said authority to enforce its own order in accordance with law unless interdicted by an appellate authority or an authority exercising powers of judicial review. No such case has been made out herein.
Since the order has already been passed for demolition, there is nothing that remains to be decided and there is no discretion which remains to be exercised. Thus the writ Court is entitled to and has the power to see that the order of the authorities passed after due hearing are not made nugatory because of the lack of official will to act in accordance with law. Accordingly, the Howrah Municipal Corporation is directed to cause demolition of the offending building within a period of fortnight from the date of communication of this order after giving reasonable notice to the respondent nos. 7 and 8 if they are found in possession of the suit property at the time of such demolition. So that responsibility may be fastened on one particular officer of the Howrah Municipal Corporation 4 instead of leaving it to the Corporation, the Mayor Howrah Municipal Corporation and its Commissioner are both jointly and severely directed to cause the said demolition with all necessary police help from the District Commissionerate of Howrah with adequate number of armed police personnel. Be it mentioned that during the course of demolition no unnecessary loss or damage shall be caused to the property on the offending building except to the extent necessary to effect demolition. If any person who had constructed the unauthorised portion/building is to be removed, he/she shall be removed under the supervision of the police. There shall be lady police officer in order to ensure that there is no disrespect caused to any lady found at the premises. If there be any movable property of the private respondents at the premises which are not removed before demolition commences, the same shall be removed under police custody by the said officers of authorities/ Howrah Municipal Corporation on whom this order is passed, and kept in safe custody of the police. Any charge or costs or bills to execute the above order shall be borne by the Howrah Municipal Corporation because it 5 is due to its culpable inaction, that the petitioner has to come to Court. Since the private respondent nos. 7 and 8 had not entered appearance, in case they feel that any material fact has not been represented to the Court, the petitioner is directed to take a copy of this order from the official website of the High Court at Calcutta and communicate it to the respondent nos. 7 and 8 at the registered address to enable them to apply for variation, extension of time of operation of this order. The order passed today shall remain stayed for seven days from the date of communication of this order.
The writ petition is thus disposed of.
I have gone through the service and it appears that due to inadvertence original of the acknowledgement due has not been stitched to the affidavit. As such Mr. Mihir Kr. Das is given liberty to restich the affidavit of service along with the original acknowledgement due card and take back the photocopy which has been annexed to this service. This order shall not come into effect until such operation is 6 carried out in course of today.
(Protik Prakash Banerjee, J.)