Calcutta High Court
Lakhu Dubey vs The Kolkata Municipal Corporation & Ors on 28 April, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Original Side
WP 85 of 2014
Lakhu Dubey
-Vs.-
The Kolkata Municipal Corporation & Ors.
Before : The Hon'ble Justice Arijit Banerjee
For the Petitioner : Mr. Raghunath Chakraborty, Adv.
For the KMC : Mr. Barin Banerjee, Adv.
Mr. Gopal Ch. Das, Adv.
Mr. Debangshu Mondal, Adv.
Heard On : 31.08.2016, 26.09.2016, 28.09.2016,
17.11.2016
12.12.2016, 21.02.2017, 02.03.2017,
23.03.2017
29.03.2017, 06.04.2017, 12.04.2017,
18.04.2017
Judgment On : 28.04.2017
Arijit Banerjee, J.:-
(1) In this writ application the petitioner prays for a direction on the
KMC authorities to demolish all unauthorised constructions at Premises
No. 15 Kali Temple Road, Kolkata 700026 in accordance with the
direction of the Special Officer (B) dated 6 September, 1983 passed in
Demolition Case No. 85-D/1972-73.
(2) Learned Counsel for the petitioner contends that the petitioner
purchased premises no. 15 Kali Temple Road, Kolkata 700026 (in short
the 'said premises') from one Sampa Banerjee who had inherited the
property from her father Banku Behari Mukherjee, since deceased.
After purchasing the property the petitioner came to know that KMC
had initiated Demolition Case No. 85-D/1972-73 against Banku Behari
Mukherjee in respect of certain unauthorised constructions on the said
premises. The Special Officer (B), KMC, passed an order dated 6
September, 1983 holding that the structures in question were
unauthorised and accordingly directed demolition of such unauthorised
structures by the person responsible failing which KMC was to demolish
the structures at the risk and cost of the person responsible. Banku
Behari's appeal before the Municipal Building Tribunal was dismissed
on 10 December, 1990. The petition for restoration of the appeal was
dismissed on 17 July, 1991.
(3) Banku Behari challenged the orders dated 10 December, 1990 and
17 July, 1991 in this Court by way of a civil revisional application being
CO No. 2810 of 1991 which was subsequently re-numbered as CR No.
419 of 1992. During the pendency of the said application Banku Behari
passed away and his daughter Sampa Banerjee was substituted in his
place and stead. By an order dated 12 November, 2010 this Court
dismissed the civil revisional application.
(4) Learned Counsel for the petitioner submitted that the order of
demolition passed by the Special Officer (B) has become final. The
said order must be implemented by the KMC. In support of this
contention, learned Counsel relied on the following decisions:-
(i) Dilip Ranjan Chatterjee-vs.-Sarbari Ranjan Chatterjee & Ors.,
1992 (1) CJL, 77.
(ii) Sk. Soleman-vs.-State of West Bengal, 2012 (2) CHN (Cal) 83.
(iii) Order dated 3 January, 2017 passed by a Division Bench of this
Court in APOT 373 of 2016 (Gayatri Chowdhury-vs.-KMC).
(iv) Judgment and order dated 2 March, 2016 passed in CO 3722 of
2015 (Md. Ayub & Anr.-vs.-The Municipal Commissioner, KMC &
Ors.).
(v) Judgment and order dated 14 January, 2016 passed by a Division
Bench of this Court in APOT 8 of 2016 (Amalesh Adak & Anr.-vs.-The
Kolkata Municipal Corporation & Ors.)
I shall revert back to these decisions later in this judgement.
(5) Learned Counsel for the KMC submitted that the petitioner
purchased the said premises with full knowledge of the unauthorised
constructions thereon. Hence, it is the petitioner who should demolish
such constructions at his cost. Learned Counsel referred to a letter of
the petitioner addressed to the Executive Engineer of KMC being
Annexure P-5 to KMC's affidavit in opposition wherein the petitioner
has recorded that he had submitted a fresh building plan for sanction
in respect of the said premises and had requested the KMC to grant
conditional permission to the petitioner and the petitioner confirmed
that at the time of commencement of construction the existing
structures would be demolished.
(6) Learned Counsel then contended that in connection with an order
passed in a Civil Suit pending between the petitioner and the private
respondent in respect of the said premises, the private respondent had
preferred a first appeal being FAT 1552 of 2004 in this Court and order of injunction was passed on 6 December, 2004 in the said first appeal restraining the respondents therein including the present writ petitioner from changing the nature and character of the suit property till the disposal of the appeal. Learned Counsel referred to an order dated 28 February, 2014 passed by Hon'ble Justice Soumitra Pal (as His Lordship then was) at the time when the writ petition was first moved. The learned Judge did not pass any interim order on the writ petition in view of the pendency of the said first appeal and subsistence of interim order of injunction therein. Learned Counsel submitted that since such first appeal is pending, no order should be passed in the present writ petition.
(7) Learned Counsel for KMC further contended that in the case of Susama Saha-vs.-The Kolkata Municipal Corporation & Ors. (AST 193 of 2015 with CO 2234 of 2015) by a judgment and order dated 2 December, 2015 a learned Judge of this Court has held that the Special Officer (B) did not have jurisdiction to pass any demolition order under Sec. 400 of the KMC Act and Municipal Commissioner had no power or authority to delegate his powers and functions under Sec. 400(1) of the KMC Act to the Special Officer (B) in view of Sec. 48 of the KMC Act. Learned Counsel submitted that a Special Leave Petition preferred by KMC, against the said judgment and order, was filed but was subsequently withdrawn with the liberty of the Apex Court to file a review petition before the Learned Single Judge, which review petition has been filed and is pending before the learned Judge. (8) Finally learned Counsel for KMC contended that there will be severe law and order problem if the demolition order in question is sought to be implemented. KMC being a statutory authority, it will not be proper for it to precipitate law and order problem. Hence, no order should be passed directing KMC to implement the demolition order. (9) I have considered the rival contentions of the parties. (10) It is not in dispute that the demolition order passed by the Special Officer (B) has attained finality. The appeal before the Municipal Building Tribunal was dismissed. The civil revisional application preferred by the then owner was dismissed by Hon'ble Justice Prasenjit Mondal (as His Lordship then was) by an order dated 12 November, 2010. In His Lordship's judgment and order the learned Judge observed, inter alia, that the then owner adopted dilatory tactics to avoid demolition of the structure. Hence, today, in my opinion, there is no scope for challenging the order of demolition which has merged with the order passed by this Court in the civil revisional application.
(11) Section 400 of the KMC Act pertains to order of demolition and stoppage of building and works in certain cases and appeals. Sec. 400 reads as follows:-
"S. 400. Order of demolition and stoppage of buildings and works in certain cases and appeal.-(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 work shall be demolished by the person at whose instance the 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 of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be 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 until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub- Section (3).
[Provided also that the Municipal Commissioner may by order, on such terms and conditions and on payment of such fees as may be prescribed by regulation, regularize the minor unauthorised erection, or execution of any minor work without sanction under this Act, or minor deviation from the sanctioned plan or execution of any minor erection or work in contravention of any sanctioned plan under this Act or the rules or the regulations made hereunder, as the case may be.
Provided also that the Municipal Commissioner may, by order, delegate his powers and functions under the first proviso and the third proviso of this sub- section to the Special Officers, appointed by the Municipal Commissioner with the approval of the State Government on such terms and conditions as may be determined by the Corporation, and expenses for payment of such officers shall be borne on the Municipal fund.] Explanation._For the purpose of this section, 'minor deviation' shall be such as may be determined by regulations.
Explanation._In this chapter, 'the person at whose instance' shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions if any, or does it by himself.
(2) The Municipal Commissioner may make an order under sub-Section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the property tax on lands and buildings.
(3) Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under Section 415.
(4) Where an appeal is preferred under sub-Section (3) against an order made under sub-Section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-Section (1), no order staying the enforcement of the order made under that sub-Section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5) Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(6) Every order made by the Municipal Banking Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-Section (1) shall be final and conclusive.
(7) Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-Section (1) or where an order under that sub-
Section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing cause such building or work to be demolished forthwith."
(12) In my opinion, once an order of demolition in respect of an unauthorised/illegal construction has attained finality, it is the statutory duty of the KMC under Sec. 400(7) of the Act to ensure that such construction is demolished. If the person responsible i.e. the person who put up such unauthorised structure fails to comply with KMC's direction for demolition of such structure, it is the duty of the KMC to demolish such structure and recover the expenses of such demolition from the person responsible or his legal heirs as an arrear of tax under the KMC Act. Although Sec. 400(7) uses the word 'may' regarding demolition of unauthorised structure by the Municipal Commissioner himself, in my view, the said sub-Section imposes a duty on the Municipal Commissioner to cause such demolition at the expenses of the person responsible. After all, it is in public interest and in the interest of safety of the members of public who reside in or visit the vicinity of the unauthorised structure that unauthorised/illegal structures are demolished. Such structures are a real threat to life and limbs and it is common knowledge that many an accident, including fatal accidents, have occurred by such unauthorised constructions collapsing without any prior warning. Hence, in my opinion, the word 'may' should be read as 'shall' in so far demolition of unauthorised constructions by the Municipal Commissioner is concerned, upon the failure, neglect or refusal of the person responsible to do so. The cost of such demolition will be recoverable by the Municipal Commissioner from the person responsible or his legal heirs as an arrear of tax in accordance with the provisions of Sec. 214 read with Sec. 223 of the KMC Act, 1980. (13) In the present case it is clear from the records that the person responsible for the unauthorised constructions was Banku Behari. He did not comply with the order of demolition. During the pendency of his challenge to the order of demolition before this Court, he passed away. Hence, his legal heirs would be deemed to have stepped into his shoes. Since Banku Behari's legal heirs have not demolished the unauthorised constructions, in my opinion, the Municipal Commissioner must do so and recover the expenses of demolition from the legal heirs of Banku Behari. As regards the apprehension of learned Counsel for the KMC regarding the law and order problem, I do not see much basis thereof. Under Sec. 588 of the KMC Act, the Inspector General of Police, West Bengal, and Commissioner of Police, Calcutta and their subordinates are obliged to co-operate with KMC for carrying into effect and enforcing the provisions of the KMC Act and for maintaining good order in and outside Kolkata. Hence, the Municipal Commissioner will be within his rights to seek Police assistance in implementing the order of demolition.
(14) As regards the petitioner's undertaking to demolish the unauthorised structures, in my opinion, the KMC cannot wriggle out of its statutory duty relying on such undertaking. Further, such undertakings are required to be given in a routine manner, as otherwise the request for revalidation of the sanctioned plan would not be entertained.
(15) As regards the pendency of the first appeal and the interim order passed thereon, learned Counsel for the petitioner has produced a copy of a judgment and order dated 5 June, 2015 passed by a Division Bench of this Court whereby the said appeal has been dismissed. Hence, there is no legal impediment to implementation of the demolition order in question.
(16) Regarding the decisions cited by leaned Counsel for the petitioner, in Sk. Soleman-vs.-State of West Bengal (supra), a Division Bench of this Court observed at paragraph 22 of the reported judgment as follows:-
"22. From the pleading of the writ application, it appears that the entire grievance is against the Corporation for non-implementing the order passed under Section 400 of the said Act. The Municipal Commissioner under the statute when was bound to cause demolition, his failure to discharge said duty, naturally becomes a cause of action to move the writ application. Article 226 of the Constitution of India is couched in a language with wide amplitude providing board jurisdiction to the Writ Court, to deal with the issue for grant of necessary relief. The writ application is maintainable for enforcement of right conferred by Parr-III and 'for any other purpose'. 'For any other purpose' gives power of wide amplitude whereby writ application is maintainable for implementation of any statutory provisions or against inaction of any body to perform their statutory duty and responsibility and for rendering appropriate justice. The power of the writ court under Article 226 of the Constitution of India is wide and Writ Court has the power to reach anywhere to cure injustice and to render proper and appropriate justice. Even a person has only legal power is entitled to move Writ Court. Reliance is placed to the case J. M. Desai vs.-Rashan Kumar, reported in 1976 (1) SCC 71."
(17) In Dilip Ranjan Chatterjee-vs.-Sarbari Ranjan Chatterjee (supra), a Division Bench of this Court held that a Special Officer on being delegated the power by Mayor-in-Council can pass order of demolition despite non-framing of rules. In principle the said Division bench was followed by another Division Bench of our Court in the case of Smt. Gayatri Chowdhury-vs.-Kolkata Municipal Corporation (supra).
(18) In the case of Amalesh Adak-vs.-The Kolkata Municipal Corporation (supra), a Division Bench of this Court noted that no challenge to the demolition order of the Special Officer on the ground of lack of authority had been thrown at the appellate stage before the Appellate Tribunal and the Special Officer's order having merged with the appellate order of the Tribunal the same has become binding on the parties and there was no scope of retaining that issue. (19) As regards the judgment and order dated 2 December, 2015 passed by a learned Judge in this case of Susama Saha-vs.-The Kolkata Municipal Corporation (supra), I am of the view that the same would have no application since the order of the Special Officer in the present case was passed more than 30 years before the said judgment was delivered. This is also the view taken by another learned Judge of our Court in His Lordship's order dated 12 June, 2016 passed in CO 3722 of 2015 (Md. Ayub-vs.-The Municipal Commissioner, KMC). (20) In view of the aforesaid this application succeeds. The Municipal commissioner is directed to demolish all unauthorised constructions at premises No. 15 Kali Temple Road, Kolkata 700026 in terms of the direction of the Special Officer (B) dated 6 September, 1983 passed in Demolition Case No. 85-D/1972-73, forthwith and in any event within a period of four weeks from date.
(21) Needless to say that the Municipal Commissioner shall be entitled t recover the expenses of such demolition from the person responsible and/or his legal heirs in accordance with the provisions of the KMC Act, 1980 indicated above. The Municipal Commissioner shall also be entitled to seek Police assistance from the concerned Police Station or the Commissioner of Police, Kolkata for implementation of the said order of demolition and if the Police authorities are so approached, they shall render full co-operation to the Municipal Commissioner. (22) WP No. 85 of 2014 is accordingly disposed of without, however, any order as to costs.
(23) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)