Calcutta High Court
M/S. Shree Shyam Projects Private ... vs Kolkata Municipal Corporation & Ors on 14 August, 2024
Author: Aniruddha Roy
Bench: Aniruddha Roy
ODSL-1
ORDER SHEET
WPO/786/2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S. SHREE SHYAM PROJECTS PRIVATE LIMITED & ANR.
VS
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE ANIRUDDHA ROY
Date : 14th August, 2024.
Appearance:
Mr. Abhratosh Majumdar, Sr. Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Shaunak Ghosh, Adv.
Mr. Rajib Mullick, Adv.
Ms. Shreyashi Maity, Adv.
...for the petitioners
Mr. Alak Kr. Ghosh, Adv.
Mr. Dwijadas Chakraborty, Adv.
...for KMC
The Court: Upon urgency being pleaded and the determination being
assigned to this Court, this writ petition has been taken up for consideration
by publishing the same in the cause list.
Mr. Abhratosh Majumdar, learned Senior Counsel appears for the
petitioners.
Mr. Alak Kumar Ghosh, learned Counsel appears for Kolkata
Municipal Corporation.
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Learned counsel undertakes to file the affidavit of service in course of
the day.
On the prayer of Mr. Abhratosh Majumdar, learned Senior Counsel
appearing for the petitioners, leave is granted to file the supplementary
affidavit. As according to him, the demolition notice dated August 12, 2024
showing the date of demolition being today, i.e., August 14, 2024 would
have an essential bearing in the writ petition, such leave is granted.
The supplementary affidavit is taken on record. Copy has been served
upon Mr. Ghosh.
At the outset, on instruction from his clients, Mr. Majumdar submits
that the petitioners are relinquishing the reliefs claimed in prayers (c), (d)
and (n) to the writ petition. Accordingly, those three prayers stand expunged
from the reliefs claimed in the writ petition. The petitioners shall proceed
with this writ petition for rest of the reliefs.
The petitioners, inter alia, has made out a specific case in its writ
petition which is quoted below:-
"7. Your petitioner states that first proviso of Section 400
specifically states that no order of demolition can be made
unless such person has been given, by means of a notice
served in such manner as the Municipal Commissioner may
think fit, a reasonable opportunity of showing cause why
as to such order shall not be made. As such, strict
compliance of Section 400 of the Kolkata Municipal
Corporation Act, 1980 entails giving a show cause notice to
the petitioner before passing an order of demolition.
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However, the petitioner was not even given notice to the
demolition proceeding and was not allowed to participate
in the demolition proceedings if any, let alone giving the
petitioner an opportunity to show cause as has been
enshrined in Section 400 of the Kolkata Municipal
Corporation Act, 1980."
Learned Senior Counsel submits that without exercising power under
Section 400 of the Kolkata Municipal Corporation Act, 1980, the demolition
proceeding has been initiated against the subject premises, which is grossly
in violation of the statutory provisions, without jurisdiction and is liable to
be set aside.
Referring to an order of the Coordinate Bench dated October 18, 2023
passed in WPO 1725 of 2023, Annexure P-13 at page 26 to the writ
petition, Mr. Majumdar submits that pursuant to the direction made
therein, the first notice of demolition dated June 13, 2024, Annexure P-5 at
page 29 to the writ petition, was issued upon the jurisdictional police
authority seeking assistance to carry out the demolition process of the
premises. The petitioners by their letter dated December 8, 2023, Annexure
P-4 at page-27 to the writ petition, have requested the municipal
authority to provide the demolition sketch plan along with the infringement
statement to the petitioners, the same have not yet been provided to the
petitioners though there was a specific direction in the said order dated
October 18, 2023 for the same. Defying the said direction of the Coordinate
Bench, the demolition notice was issued. Lastly, the municipal authority
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issued the said notice dated August 12, 2024 seeking assistance from the
local police authority on August 14, 2024 to carry out the demolition
process of the premises.
He further contends that no demolition order of the jurisdictional
Corporation authority including the relevant notice for show-cause as
contemplated under Section 400 of the 1980 Act have also been served upon
the petitioners. No opportunity of hearing was granted.
Hence, this writ petition seeking quashing of the entire demolition
process.
Mr. Alak Kumar Ghosh, learned Counsel appearing for the Kolkata
Municipal Corporation submits that the entire demolition process was
initiated by the Kolkata Municipal Corporation in respect of the said
premises and further steps were taken to deal with the unauthorized
construction and to complete the demolition process in terms of the
direction of the Coordinate Bench dated October 18, 2023. He submits that
he has to take instruction from his client whether copy of the demolition
sketch plan and infringement statement have been served upon the
petitioners or not. At this stage, he is also required to take instruction from
his client whether due notices were issued in compliance of Section 400 of
the 1980 Act upon the petitioners to proceed with the demolition process.
Mr. Ghosh further submits that the petitioners had previously
opportunities to challenge the demolition process but the petitioners did not
do so. Neither the petitioners have taken the plea that the demolition sketch
plan and the infringement statement have not been served upon the
petitioners. He further submits that when a demolition notice is issued by
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the Corporation, the same itself shows the nature and extent of demolition
of the subject premises. Therefore, there was no further requirement to
provide demolition sketch plan and the infringement statement to the
petitioners and no such provision is also there under the statute. He also
confirms that today is the date fixed for demolition of the subject premises.
He also submits that the municipal authority are facing contempt
proceeding before the Coordinate Bench unless it completes the demolition
work in terms of the direction made on October 18, 2023.
Considering the rival contentions of the parties and considering the
materials on record and specifically the case made out in the writ petition, it
appears to this Court that Kolkata Municipal Corporation authority shall
place the required materials before this Court as to whether a properly
constituted proceeding was initiated in exercise of power under Section 400
of the 1980 Act and whether a copy of the demolition sketch plan and
infringement statement have been served upon the petitioners following the
direction of the Coordinate Bench dated October 18, 2024.
On a meaningful reading of the order dated October 18, 2023, this
Court is of the firm view that the first step was to be followed to provide the
copy of demolition sketch plan and infringement statement, inter alia, to the
petitioners before proceeding further with the proceeding for demolition of
unauthorized constructions at the premises. There is no material at this
stage before this Court to show that such demolition sketch plan and the
infringement statement were served upon the petitioners. On a meaningful
reading of the order it further appears to this Court that the Corporation
authority was directed to take immediate steps to deal with the
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unauthorized construction and to conclude the proceeding, strictly in
accordance with law.
When an issue of demolition of a property is before the Court, this
Court is of the firm view that, the provisions of the statute has to be strictly
complied with in its strict sense. If the property is demolished and thereafter
it is found that the statutory provisions have not been followed in its strict
sense and application, then there shall be an irreversible injury to be
suffered by the interested parties in the property.
In view of the foregoing discussions and reasons, this Court is of the
firm view that a prima facie case has been made out in the writ petition and
the balance of convenience and inconvenience are also in favour of the
petitioners at this interim stage, warranting an interim order, more so, since
the date of demolition is fixed today.
Accordingly, there shall be an order of injunction restraining the
respondents and/or each of them and/or their men, agents, servants and
assigns to take any step or further steps and to proceed any further for the demolition of Premises No. 3, Digambar Jain Temple Road, Kolkata- 700007 in any manner for a period of six weeks or until further order whichever is earlier.
The respondent no. 4 shall file a report in the form of affidavit disclosing all the relevant documents and materials on or before August 27, 2024. The petitioners shall file their exception thereto in the form of an affidavit on or before September 4, 2024. The parties shall be at liberty to mention the writ petition for inclusion in the list before the regular Bench, subject to its convenience, upon notice to each other. 7
In view of the urgency involved in this writ petition, the learned Advocate-on-Record for the parties shall communicate the gist of this order to the parties to the writ petition.
(ANIRUDDHA ROY, J.) sg.