Calcutta High Court (Appellete Side)
Sri Naba Kumar Kundu & Anr vs The Kolkata Municipal Corporation & Ors on 7 November, 2019
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
7.11.2019
Sl. 10
Ct. No. 11
AKD
W.P. No. 18507(W) of 2019
Sri Naba Kumar Kundu & Anr.
-vs-
The Kolkata Municipal Corporation & Ors.
Mr. Jayanta Samanta,
Ms. Karunamoyee Samanta
... for the Petitioners
Mr. Mayukh Maitra,
Mr. Nayeemuddin Munshi
... for the Respondent Nos. 9 and 10
Mr. D. P.Mukherjee, Mr. Mihir Kundu ... for the Corporation Heard Mr. Samanta, learned Advocate appearing for the petitioners, Mr. D. P. Mukherjee, learned Senior Advocate appearing for the Kolkata Municipal Corporation along with Mr. Kundu and Mr. Maitra, learned Advocate appearing for the respondent nos. 9 and 10, at length.
Mr. Samanta, learned Advocate appearing for the petitioners, submits that long back the petitioners lodged a complaint to the Kolkata Municipal Corporation thereby agitating that the private respondent nos. 11 to 16 have been carrying on authorised construction of the G+3 building without having any sanctioned plan at the premises in question. Unfortunately, till date no step has been taken by the K.M.C. to demolish that unauthorised construction. Hence, the present writ petition. 2
Mr. Mukherjee, learned Senior Advocate appearing for the Kolkata Municipal Corporation, submits that after receiving the complaint, the Kolkata Municipal Corporation has already issued a notice under Section 401 of the Kolkata Municipal Corporation Act for stop work. Since the private respondent nos. 11 to 16 failed to comply with the provision under Section 401 of the said Act, therefore, the Corporation without finding any alternative already lodged an F.I.R. before the concerned Police Station on 17th September, 2019.
Mr. Maitra, learned Advocate appearing for the private respondent nos. 9 and 10, the co-owners of the said building in question, submits, on instruction, that the private respondent nos. 9 and 10 never constructed any unauthorised construction at the premises in question, as has been projected by Mr. Mukherjee, and also the private respondent nos. 9 and 10 were never served with the notice under Section 401 of the said Act.
Against such submission, Mr. Mukherjee submits that the person concerned, one Md. Abdullah who is the respondent no. 15 in the writ petition, regarding unauthorised construction at the premises in question, was served with the notice as per law on 16th April, 2019. Till date that notice has not been challenged by the respondent no. 15. Not only that, since that Md. Abdullah has been carrying on an unauthorised construction without obtaining any 3 sanctioned plan from the Kolkata Municipal Corporation, therefore, Corporation without finding any alternative, already lodged an F.I.R. before appropriate authority as (supra).
That being the scenario, I direct the Corporation to initiate proceeding under Section 400(1) of the Kolkata Municipal Corporation Act and complete the same within a period of eight weeks. Section 400(1) of the said Act is quoted below :
"Section 400(1) : Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order or demolition with a brief statement of the reasons therefor has been delivered such person, as may be specified in the order:
Provided that no order of demolition shall 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 such order shall not be made:
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution 4 until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3)."
Till such date, the private respondent nos. 11 to 16 have been restrained from carrying on any construction and/or further construction at the premises in question.
The respondent no. 5, the Officer-in-Charge, Chitpur Police Station, is directed to ensure that the private respondent nos. 11 to 16 shall not carry on any construction and/or further construction at the premises in question.
The copy of the documents as handed up by Mr. Mukherjee be kept on record.
With this direction, this writ petition is disposed of. However, there will be no order as to costs.
If urgent photostat certified copy of this order if applied for, the same shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
( Samapti Chatterjee, J.) 5 6