Calcutta High Court (Appellete Side)
Minu Dutta vs Kolkata Municipal Corporation & Ors on 19 November, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1 19.11.2019 38 RP Ct.04 WP 20157 (W) of 2019 Minu Dutta Vs. Kolkata Municipal Corporation & Ors. Mr. Srijib Chakraborty, adv.
Mr. Antarikhya Basu, adv.
Mr. Diptangshu Basu, adv.
Ms. Madhumita Basak, adv.
.... For Petitioner Mr. Alok Kumar Ghosh, adv.
Mr. Swapan Kumar Debnath, adv.
.... For KMC Mr. Chakraborty, learned advocate appears on behalf of petitioner and submits, impugned judgment dated 15th October, 2019 passed by Senior Municipal Magistrate, Kolkata in Case 2743 of 2016 (State of West Bengal vs. Minu Dutta) is liable to be set aside and quashed to extent learned Magistrate ordered demolition of all unauthorized, irregular, invalid, illegal and unlawful erection/construction work of three storied structure at the premises in question. His client approached vacation Bench and obtained interim order. The point is, order of demolition can only be made under section 400 of Kolkata Municipal Corporation Act 1980. Such proceeding was initiated only on 17th October, 2019, pursuant to impugned judgment. He draws attention to section 401A and 619A to 2 submit, these provisions do not empower Municipal Magistrate to order demolition.
Mr. Ghosh, learned advocate appears on behalf of the Corporation and draws attention section 584. He submits, Municipal Magistrate is duly empowered. He submits further, proceeding before Municipal Magistrate culminating in impugned judgment was initiated under section 401A and hence, Municipal Magistrate was also thereby empowered to convict as well as order demolition.
Section 584 is set hereinbelow:-
"Power of Municipal Magistrate to direct payment of fine and demolition of unlawful work.- If, under this Act or Rules or the Regulations made thereunder, any person is, in respect of any unlawful work liable-
a) to pay any fine, and also
b) to demolish said work.
A Municipal Magistrate may, in his discretion direct such person to pay the fine or also to demolish the work." The provision is for execution of an order of payment of fine or demolition or both. It does not empower ordering demolition. This Court is unable to understand how there has been conviction of an offence, which has not been tried. Trial has been initiated by proceeding under section 400, after the judgment on 17th October, 2019. Section 619A provides for procedure of trial of offence 3 committed under several sections. Section 401A is not one of them. Said section 401A contemplates a finding on 'so constructs' for there to further be cognizance of offence. It is reiterated, demolition proceedings appear to have been initiated on 17th October, 2019, after impugned judgment.
Ordering portion in the impugned judgment directing demolition is set aside.
This writ petition is disposed of.
(ARINDAM SINHA, J.) 4