Calcutta High Court
Rahul Kumar Yadav & Ors vs Gopinath Sircar on 27 February, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD- 1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/78/2024
WITH
WPO/71/2024
IA NO:GA/1/2024
GA/2/2024
RAHUL KUMAR YADAV & ORS.
VS
GOPINATH SIRCAR
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE GAURANG KANTH
Date : FEBRUARY 27, 2024.
Appearance:
Mr. Srijib Chakraborty, Adv.
Mr. Sumitava Chakraboarty, Adv.
Ms. Rupsa Sreemani, Adv.
....for Appellants
Mr. Anirban Majumdar, Adv.
....for Respondent
Mr. Biswajit Mukherjee, Adv.
Ms. Manisha Nath, Adv.
Mr. Tanmoy Mukherjee, Adv.
Mr. Aditya Mondal, Adv.
..for Respondent Nos. 12 to 14
THE COURT: GA/1/2024 The applicants pray for leave to appeal against an order dated February 22, 2024, passed by a learned Single Judge of this Court in WPO/71/2024, being a writ petition filed by the respondent no.1 herein, i.e., Gopinath Sircar.
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They say that the order of the learned Single Judge directing implementation of the demolition order will seriously affect them as they are the developers of the building in question. They have not been made parties to the writ petition. They came to know of the demolition order when a notice under Sections 544 and 546 of the Kolkata Municipal Corporation Act, 1980, was pasted on the outer walls of the building in question, requiring the occupants to vacate the premises so that the demolition order could be implemented.
Having heard learned counsel for the applicants, we are of the view that the applicants have sufficient locus to prefer an appeal against the order of the learned Single Judge. Accordingly, this application is allowed. GA/1/2024 is disposed of.
GA/2/2024, APOT/78/2024 By consent of the parties, the appeal and the connected application (GA/2/2024) are taken up together for hearing.
This is the third round of litigation. Initially, Gopinath Sircar had approached a learned Single Judge by filing WPO/1405/2023, complaining of unauthorized construction at the instance of the private- respondents in that writ petition, who are private-respondent Nos. 12 to 14 herein.
The said writ petition was disposed of by the learned Judge by a judgment and order dated July 27, 2023, by directing the Executive 3 Engineer of the concerned Borough "to take prompt necessary steps to deal with such unauthorized construction in accordance with law at the earliest. A reasonable opportunity of hearing shall be given to all the necessary parties prior to passing a final order of the matter. The Executive Engineer shall endeavour to conclude the proceedings at the earliest, but positively within a period of twelve weeks from the date of communication of this order." The learned Judge also directed the Officer-in-Charge, Jorabagan Police Station, to ensure that no construction is carried on at the subject premises till the matter was finally decided by the Kolkata Municipal Corporation.
A second writ petition was filed by Gopinath Sircar, being WPO/1688/2023, wherein he alleged that despite the earlier order passed by this Court in the earlier writ petition, construction was going on in full swing. The learned Judge disposed of the writ petition with the following observations and directions:
"It appears that the matter was heard by the engineers of the Corporation and final order is to be passed. Prior to passing the final order the private respondent is alleged to continue with the construction work.
The police was directed to ensure that no construction work continues at the subject premises. It appears that the police was not vigilant enough for which the private respondent continued with the unauthorized construction and presently, the construction has gone up to a great extent.4
As the matter is still pending consideration before the Executive Engineer of the concerned Borough, accordingly, the private respondents are restrained from raising any construction of the subject property.
The Officer-in-Charge, Jorabagan Police Station is directed to ensure and keep vigil over the property so that the order passed by this Court is strictly complied with and no construction is made over the property.
The Executive Engineer is directed to pass an order within the time limit specified by this Court in WPO No.1403 of 2023 on 27th July, 2023."
It appears that in the meantime, a demolition order dated September 13, 2023, had been passed by the Executive Engineer (Civil)/Building.
Gopinath Sircar again approached the learned Single Judge in the present round of litigation alleging that construction at the subject premises is still going on. The entire construction is illegal. Appropriate relief was prayed for.
The learned Judge passed the following order on February 22, 2024:
"The matter relates to the unauthorized construction at 73A, Pathuriaghat Street, Ward No.21, Borough-IV of the Kolkata Municipal Corporation.
An order of demolition was passed by the Executive Engineer (Civil)/ Building/ Borough-IV & V on 13.09.2023. The person responsible was directed to demolish the unauthorized construction within thirty days failing which the Corporation would proceed for demolition.
Instruction filed by the Sub Assistant Engineer (Civil)/Building and the Executive Engineer (Civil)/ Building/ Borough-IV & V signed on 5 12.02.2024 mentions that the date of demolition was fixed on 21.02.2024 by the Corporation.
Executive Engineer (Civil)/ Building/ Borough-IV & V of the Kolkata Municipal Corporation is directed to prepare a report clearly indicating the extent of demolition carried out on 21.02.2024.
List the matter on 28.02.2024.
Affidavit of service filed in Court today is taken on record." Being aggrieved, the appellants have come up before us. Mr. Chakraborty, learned counsel appearing for the appellants, says that the appellants are the developers of the building in question. The appellants have entered into a registered Agreement with the owners of the property for developing the property. In none of the three writ petitions filed by Gopinath Sircar the appellants were made parties. The landlords also did not apprise the Court that the building was being constructed not by the landlords but by other persons who are interested parties and should be heard. The appellants were not aware of the proceedings before the learned Judge nor of the demolition order. The appellants have a statutory right to prefer appeal against the demolition order as parties aggrieved. Learned counsel says that some breathing space should be granted to the appellants to enable them to assail the demolition order before the Municipal Building Tribunal. Learned counsel says that the impugned construction has been made strictly adhering to the reconstruction plan sanctioned by KMC. This is strongly disputed by learned counsel appearing for the writ petitioner who says 6 that the entire building was demolished and a new building was constructed.
Learned counsel appearing for the respondent No.1/writ petitioner, i.e., Gopinath Sircar, says that the writ petitioner could not have been aware of the existence of the appellants. They lodged complaint against the landlords who are the recorded owners of the property. The writ petitioner is not concerned with any private arrangement between the landlords and the appellants, which may be wholly illegal. The building is completely unauthorized. The order of the learned Single Judge warrants no interference.
Learned counsel for the landlords says that the demolition order was passed ostensibly after granting an opportunity of hearing to the landlords. Only on one particular date, a hearing was held only for ten minutes with the participation of the landlords. No effective hearing was granted to the landlords before the demolition order was passed.
Learned counsel for Kolkata Municipal Corporation (in short, "KMC") says that since the landlords are the recorded owners in the books of KMC and there is no mention of the appellants in the records of KMC, KMC issued notice to the persons responsible who are the recorded owners of the property in question. The unauthorized construction has already been partly demolished. KMC will abide by whatever order this Court passes.
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Having heard learned counsel for the parties, we are of the opinion that the appellants ought to be granted an opportunity to exercise their statutory right of appeal under Section 400(3) of the KMC Act, 1980, which provides that "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." It cannot be said that the appellants are not persons aggrieved. Therefore, in our opinion, they would be entitled to challenge the demolition order before the Municipal Building Tribunal.
Accordingly, we dispose of this appeal and the connected application with the following directions:
(i) KMC shall not take any further coercive step in respect of the impugned construction for a period of one month from date.
(ii) The appellants may approach the Municipal Building Tribunal challenging the demolition order in question. If they are successful in obtaining an interim protective order, the same shall have effect. If they are unable to obtain any interim order, the Corporation shall forthwith proceed to execute the demolition order. We clarify that if the appellants herein apply for interim order before the Tribunal, such 8 prayer shall be considered by the Tribunal without being influenced by any observation in this order or by the fact that we have granted breathing space to the appellants. The Tribunal shall deal with such prayer independently and in accordance with law.
(iii) The appellants are restrained from raising any further construction at the subject premises till the Tribunal decides the appeal, which may be filed by the appellants herein.
(iv) The Officer-in-Charge, Jorabagan Police Station is directed to keep strict vigil and ensure that no further construction is made by the appellants or anybody else at the subject premises.
(v) If the appellants approach the Municipal Building Tribunal with an appeal against the concerned demolition order with a photocopy of the demolition order as has been annexed to the stay petition, the Tribunal shall not refuse to entertain the appeal only on the ground of certified copy of the impugned order not being filed. However, the appellants shall undertake before the learned Tribunal to file certified copy in due course. The appellants will also be entitled to challenge the report dated February 12, 2024, of the Executive Engineer (Civil)/Building, Borough - IV & V, which 9 was filed before the learned Single Judge. If any statutory appeal is filed by the appellants, the writ petitioner herein shall be made a party and the Tribunal shall grant full opportunity of hearing to the writ petitioner herein.
(vi) In the event the appellants fail to file any statutory appeal within a month from date, the Corporation will implement the demolition order.
In view of the above, the impugned order is set aside. Since the writ petition is pending, let the appellants herein be added as party respondents in the writ petition.
Since we have not called for affidavits, the allegations made in the application are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J.) (GAURANG KANTH, J.) sm