Calcutta High Court (Appellete Side)
Smt. Menoka Rani Dogra & Ors vs The Howrah Municipal Corporation & Ors on 31 October, 2019
1
2 31.10.19
Sc CAN 10417 OF 2019
(Application for stay)
with
MAT 1560 OF 2019
-------
Smt. Menoka Rani Dogra & Ors.
-vs.-
The Howrah Municipal Corporation & Ors.
Mr. Subhasish Pachhal Mr. Rameshwar Sinha.
.....For the Appellants/ Applicants.
This is an appeal preferred by the private respondents in a writ petition, in connection with the orders dated August 7, 2019 and September 20, 2019 passed in W.P. 8376 (W) of 2019 whereby in effect the Howrah Municipal Corporation (hereafter the Corporation) was directed to demolish an admittedly unauthorised construction without sanctioned plan after refunding the retention fees, illegally charged by the Howrah Municipal Corporation, for allowing retention of such said building. The only point taken by the appellants is that they were not heard before the impugned orders were passed.
We have heard Mr. Pachhal, learned advocate appearing for the appellants/applicants (hereafter the appellants). After hearing him, we find no useful purpose will be served in taking up only the application for stay and with the consent of Mr. Pachhal we took up the appeal itself for hearing today along with the application.
From the documents annexed to the stay application it appears that by an order dated July 11, 2016 the Assistant Engineer, Borough - III of the 2 Corporation has communicated to the appellants that by a decision dated June 3, 2016 of the Borough Committee, the said construction was resolved to be retained on the payment of retention fees and payment of other amounts aggregating to Rs.1,55,270/-. Mr. Pachhal could not show us any statutory provision by which such Borough Committee could assume jurisdiction to allow retention of an admittedly unauthorised construction. He also could not show us any statutory provision to allow retention of an unauthorised construction constructed without applying for sanction of a building plan and without building permit under the Howrah Municipal Corporation Act, 1984 as amended. It is an admitted position that the construction was made without sanctioned plan and building permit and no attempt was made to rectify this defect before the construction was completed.
The law is well settled that in such cases, inter alia, in Dipak Kumar Mukherjee - vs. - Kolkata Municipal Corporation reported in (2013) 5 SCC 336, such unauthorised construction cannot be allowed to stand but must be directed to be demolished. The said order has also been challenged in the writ petition filed by the respondent no. 6 and the orders under appeal were passed on the basis of such a writ petition thereby upholding the contention of the respondent no.6, that the said order of retention was without jurisdiction.
We have ascertained from Mr. Pacchal that his clients, the appellants, were served a copy of the writ petition before it was moved and the writ petition was taken up after being listed. He could not give any answer why despite such service his clients chose not to appear in the matter before the learned Single 3 Judge. Therefore, we find no irregularity, far less material irregularity, in the procedure adopted by the learned Single Judge in hearing and disposing of the matter in the absence of the appellants particularly when the said Corporation itself submitted that the construction in question had been made without sanction and was unauthorized.
We find no infirmity in the said orders under appeal. Therefore, while dismissing the appeal we make it clear that the appellants shall have a period of one month from date to effect demolition of the said unauthorised construction at their own cost failing which, the Howrah Municipal Corporation shall cause the said construction to be demolished at the cost of the appellants.
The appeal as well as the application stand dismissed subject to the above observation.
Office Since none has appeared for the Corporation today, office is directed to communicate this order to it immediately.
There shall be no order as to costs.
Photostat certified copy of this order, if applied for, be furnished expeditiously.
(Protik Prakash Banerjee, J.) (Dipankar Datta, J.)