Calcutta High Court
Md. Kasim vs The Kolkata Municipal Corporation & Ors on 21 June, 2010
Author: Pratap Kumar Ray
Bench: Mohit S. Shah, Pratap Kumar Ray
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G. A. No.1618 of 2010
A.P.O.T. No.292 of 2010
W. P. No.607 of 2010
Md. Kasim
Versus
The Kolkata Municipal Corporation & Ors.
Mr. Aniruddha Chatterjee, Adv. with
Mr. Srijib Chakraborty, Adv.
Ms. Rekha Ghosh, adv.
..for the appellant
Mr. L. C. Behani, Sr. Adv. with
Mr. Debangshu Mondal, Adv.
..for the KMC
Mr. A. K. Routh, Adv.
..for the respondent no.8
BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Harish Tandon __________________________________________________________________ Date: 21st June, 2010 __________________________________________________________________ Heard the learned Advocates appearing for the parties.
Having regard to the nature of the impugned order assailed in this appeal, we are of the view that the stay application and the appeal both could be disposed of by analogous hearing.2
Since all parties are appearing through learned Advocates before us, formal service of notice of appeal and all other formalities stands dispensed with. The appeal is treated as on day's list and taken up for final hearing.
The impugned order under challenge dated 6th May, 2010 passed by Learned Trial Judge, in W. P. No.607 of 2010 reads such:
"The Kolkata Municipal Corporation is restrained from demolishing any part or portion of the building constructed in conformity with the sanctioned plan no.5 dated 30.4.1993.
Let affidavits be exchanged.
Affidavit-in-opposition is to be filed within one week after the Summer Vacation. Affidavit-in-reply thereto, if any, be filed within two weeks thereafter.
Let the matter be listed four weeks after the Summer Vacation.
All parties are to act on a xerox signed copy of this order on the usual undertakings."
When the stay application was moved, having regard to the urgency of the situation, this Court on 7th May, 2010 passed an order of injunction restraining demolition work in terms of prayer
(c) of the Stay application till three weeks from that date. The order dated 7th May, 2010 reads such:
"Heard the learned advocates for the parties.3
Having regard to the urgency of the matter, the matter is taken up as on day's list.
Heard Mr. Behani, learned senior advocate appearing for the corporation, who has frankly submitted that corporation has not engaged anybody to demolish any portion of premises no.8E, Dent Mission Road, Kolkata - 700 23.
Learned advocate for the petitioner submits that premises nos.8E, Dent Mission Road, Kolkata - 700 23 and 28, Karl Marx Sarani, Kolkata - 700 023 are adjacent premises and while carrying out the work of demolition of premises no. 28, Karl Marx Sarani, Kolkata - 700 023, the corporation practically has entered into the premises no.8E, Dent Mission Road, Kolkata - 700 23 and thereby intended to start demolition work. For that reason, the appellant has come up before this Court with the urgent stay application.
After hearing the parties, we are of the view that there should be an order of injunction in terms of prayer (c) till three weeks from this date.
Upon an oral prayer, the owner of the premises no. 28, Karl Marx Sarani, Kolkata - 700 023 is added as party in this proceeding here and now. He prays a mandate to demolish unauthorised portion of said premises.
Leave is granted to the learned advocate on record to correct the cause title accordingly.
Let affidavit-in-opposition be filed by 14.5.2010; reply, if any, be filed by 18.5.2010. Matter is posted on 19.5.2010 as a "fixed item".
All parties concerned are to act on a signed xerox copy of this order on the usual undertakings."
Learned Advocates for the respective parties have submitted that another appeal being A.P.O.T. No.319 of 2010 arose out of 4 challenged of the order dated 29th April, 2010 passed in C. C. No.188 of 2009 arising out of W. P. No.2280 of 1999, was disposed of on 19th May, 2010 by the Division Bench (Coram: Mohit S. Shah, CJ. and Kalyan Jyoti Sengupta, J.). The said writ application relates to the identical factual matrix as pleaded in the present writ application and connected appeal. The order dated 19th May, 2010 as referred to above reads such:
"The Court : Instead of hearing the stay applications, we have taken up both the appeals for hearing by treating the same on the day's list.
These appeals are directed against two separate orders dated 29th April, 2010 passed by the same learned Single Judge in C.C.No.188 of 2009 and in another separate application being G.A.No.1269 of 2010 in connection with C.C.No.188 of 2009. Since the appeals involve common questions of law and facts, with the consent of the learned counsel for the parties, we have taken up both the appeals for hearing together and the same are being disposed of by the common order.
By judgment dated 12th June, 2008 in Writ Petition No.2280 of 1999, His Lordship the Hon'ble Justice Debasish Kar Gupta had directed the Kolkata Municipal Corporation to implement the order dated 16th January, 1986 for demolition of a building called 28, Karl Marx Sarani, Kolkata. Since that order was not being implemented, the learned single Judge directed the Director General (Building), Kolkata Municipal Corporation to implement the said order of demolition dated 16th January, 1986 without any further delay after giving opportunity of hearing to the respondent Nos. 6 and 7 or their representatives only with regard to the identification of the portion of premises No.28, Circular Garden 5 Reach Road, Calcutta. Parties were also given liberty to produce relevant documents before the Director General (Building) K.M.C. at the time of such hearing. The Director General (Building) submitted report dated 26th February, 2009 indicating that it was not possible for him to identify any portion of Premises No.28 (Por) Circular Garden Reach Road (Karl Marx Sarani) as was referred to in the demolition order dated 16th January, 1986. Therefore, he was helpless to carry out the judicial order requiring him to implement the demolition order dated 16th January, 1986. In view of the above, the writ petitioner took out contempt application being C.C.No.188 of 2009. During the pendency of the said application, the appellants herein moved G.A.No.1269 of 2010 for intervening in the contempt application on the ground that in the guise of demolition of Building No.28, Karl Marx Sarani, Kolkata, a portion of Premises No.8E, Dent Mission Road is likely to be demolished. By the impugned order dated 29th February, 2010 the learned single Judge rejected the said application being G.A.No.1269 of 2010 after recording the statement of the learned counsel for the Kolkata Municipal Corporation that neither there is any indication nor there is any decision to take any steps with regard to demolition of any portion of premises No.8E, Dent Mission Road, Kolkata - 700023.
Aggrieved by the above order, the appellants have preferred A.P.O.T. No.292 of 2010 wherein another Hon'ble Division Bench has passed the following order :-
"Learned advocate for the petitioner submits that premises No.8E, Dent Mission Road, Kolkata - 700023 and 28, Karl Marx Sarani, Kolkata - 700023 are adjacent premises and while carrying out the work of demolition of premises Nio.28, Karl Marx Sarani, Kolkata - 700023, the corporation practically has entered into the premises No.8E, Dent Mission Road, Kolkata - 700023 and thereby intended 6 to start demolition work. For that reason, the appellant has come up before this Court with the urgent stay application. After hearing the parties, we are of the view that there should be an order of injunction in terms of prayer (c) till three weeks from this date.
Upon an oral prayer, the owner of the premises No.28, Karl Marx Sarani, Kolkata - 700023 is added as party in this proceeding here and now. He prays a mandate to demolish unauthorised portion of the said premises. Leave is granted to the learned advocate on record to correct the cause title accordingly.
Let affidavit-in-opposition be filed by 14-5-2010; reply, if any, be filed by 18-5-2010. Matter is posted on 19-5-2010 as a 'fixed item'. "
The said appeal is still pending before the other Division Bench.
Learned counsel for the Kolkata Municipal Corporation states that after the above report was submitted by the Director General (Building) K.M.C. on 26th February, 2009, the Corporation has now prepared a plan of the building which is to be demolished being 28, Karl Marx Sarani and, therefore, there could not be any confusion in the matter.
Having heard the learned counsel for the parties, we are of the view that since the question whether the building which is proposed to be demolished by the K.M.C. is the same building being 28, Circular Garden Reach Road (Karl Marx Sarani) or whether any portion of premises No.8E, Dent Mission Road is likely to be demolished is not free from doubt, at this stage, it would be in the fitness of things if both the writ application of the owners/occupants of building No.8E, Dent Mission Road and the contempt application being C.C.No.188 of 2009 are heard together by the same learned single Judge. Hence without expressing any opinion on the controversy amongst the parties, we are of the view 7 that both the matters need to be heard by the same learned Single Judge. Appropriate orders would, therefore, be passed on the administrative side.
Both the stay applications and the appeals are disposed of accordingly.
Certified photostat copy of this order be made available to the parties upon compliance of usual formalities." It appears from the said order dated 19th May, 2010 that the order passed in the present appeal and observation and finding thereof was quoted.
Considering the factual matrix of the case wherein identification of the property is required to be done prior to execute the demolition work, we are of the view that the present writ application should be heard alongwith the connected writ applications as per order of other Division Bench quoted above wherein the identical question would likely to be considered by the Trial Court.
The appeal and the stay application are, accordingly, disposed of by directing the learned Trial Judge to dispose of the present writ application upon taking note of the order of the Division Bench dated 19th May, 2010 as quoted above as expeditiously as possible.
8
The order of injunction restraining the respondents from carrying out any demolition in respect of premises No.8E, Dent Mission Road, Kolkata - 700 023 as passed earlier will continue till the disposal of the writ application.
There will be no order as to costs.
Urgent certified photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
( Pratap Kumar Ray, J. ) ( Harish Tandon, J. ) AKGoswami