Girija Shankar Shaw @ Jaiswal & Ors vs The Howrah Municipal Corporation ...
2021 Latest Caselaw 3543 Cal

            IN THE HIGH COURT AT CALCUTTA
              Constitutional Writ Jurisdiction
                      Appellate Side

Present :-     Hon'ble Justice Amrita Sinha

                           WPA 7641 of 2021

              Girija Shankar Shaw @ Jaiswal & Ors.

                                    Vs.

           The Howrah Municipal Corporation & Ors.


For the writ petitioners   :-    Mr. Ram Anand Agarwal, Adv.
                                 Ms. Nibedita Pal, Adv.

For the respondent no. 5 :-      Mr. Haradhan Banerjee, Adv.
                                 Mr. Partha Pratim Mukhopadhyay, Adv.

For the HMC                :-    Mr. Sandipan Banerjee, Adv.
                                 Mr. Ankit Sureka, Adv.

Heard on                   :-    02.07.2021

Judgment On                :-    02.07.2021

Amrita Sinha, J.

The instant case is a glaring example of the adage, 'justice

delayed is justice denied'. Even though the Court on successive

occasions held in favour of the petitioners, but for reasons alien to law,

the petitioners are yet to reap the benefit they are entitled to in terms of

the order of the Court. In spite of the right of the petitioners being

crystallized, they are forced to approach the Court repeatedly for justice.

Justice seems to be eluding, so near, yet so far.

The petitioners are aggrieved by the order dated 26th February,

2020 issued by the Commissioner, Howrah Municipal Corporation

whereby the Corporation refrained from carrying out the demolition

work of the unauthorized construction in view of the order passed by

the Ld. Civil Court.

The matter relates to unauthorized construction in the premises

nos. 62/A/2 and 62/A/3, J. N. Mukherjee Road, Ghusuri, P.S.

Malipanchghara, District- Howrah. Complaining the action of the

private respondent in making unauthorized construction, the petitioners

applied before the Howrah Municipal Corporation. As no action was

taken, the petitioners approached this Court by filing a writ petition

being W.P No. 17010(W) of 2012. The said writ petition was disposed of

by an order dated 13.09.2012 by recording and relying upon the

submission made on behalf of the private respondent herein that she

was not making any construction in the premises. It was also recorded

that the Howrah Municipal Corporation has not issued any sanctioned

plan authorizing the private respondent to raise any construction in the

premises. Injunction order was issued restraining the private

respondent from raising any construction without any legal authority

and without obtaining any sanction plan from the municipal authority.

It was also made clear that in the event any complaint is received by the

municipality alleging unauthorized construction in the said premises,

the municipal authority will take steps in accordance with law.

From the events that followed it appears that in spite of the

aforesaid order of injunction the private respondent made unauthorized

construction.

The petitioners were compelled to approach this Court by filing a

further writ petition being W.P No. 19494(W) of 2013 praying for a

direction upon the municipal authority for demolition of the

unauthorized construction raised by the private respondent.

The private respondent also filed a writ petition being W.P No.

28954(W) of 2013 challenging the demolition proceeding initiated

against her, wherein claim was made that she being a tenant in the

building in question has repaired the uninhabitable portion of the

tenanted premises by removing the tile shed and casted concrete roof on

the existing brick built wall of the old construction. The private

respondent admitted that construction of another floor above the

ground floor was made. It was however fairly admitted that the entire

construction was made without obtaining any sanction from the

municipality. The municipality initiated a demolition proceeding and

order was passed on 15.06.2012 directing the person responsible for

making unauthorized construction to demolish the same.

Both the aforesaid writ petitions were taken up for consideration

by the Court analogously and was disposed of by order dated

24.09.2013. The Court allowed the writ petition of the petitioners and

directed the private respondent to remove the entire unauthorized

construction positively within a fortnight and in the event of failure to

do so, the municipal authority was directed to demolish such

unauthorized construction immediately thereafter and to realize the cost

thereof from the private respondent.

Being aggrieved by the order dated 24.09.2013 an appeal was

preferred by the private respondent. Before the appeal court the private

respondent candidly admitted making unauthorized construction in the

ground and the first floor to the extent of 56.56 sq. mts., i.e, 28.28 sq.

mts. in each of the floors. By an order dated 19.12.2013 the Hon'ble

Division Bench was pleased to dismiss the appeal.

By an order dated 06.08.2014 passed in Title Suit No. 165 of 2007

the learned Civil Judge had been pleased to pass a decree of eviction

against the private respondent in respect of the suit scheduled property.

The private respondent was directed to quit and vacate the scheduled

premises and deliver possession of the same in favour of the petitioners

herein.

As the order of demolition passed by the Howrah Municipal

Corporation was not complied and further unauthorized construction

was being made, the petitioners were compelled to approach this Court

yet again by filing another writ petition being W.P. 19783(W) of 2016. By

an order dated 22.09.2016 a co-ordinate Bench of this Court directed

the Howrah Municipal Corporation to conclude the demolition

proceeding in accordance with law. In the said order it was recorded

that there is no dispute that the order of demolition became final and

binding between the parties.

An application for contempt was filed by the petitioners alleging

violation of the direction passed in the order dated 22.09.2016. In terms

of the order passed by the Court, the Commissioner of the Howrah

Municipal Corporation by an order dated 17.05.2017 again directed

demolition of the remaining unauthorized portion as mentioned in the

said order with the help of sufficient police force from the local police

station and with the help of fire brigade authorities as there was

apprehension that fire accident may take place as the unauthorized

portion was being used for storing inflammable objects, viz; light plastic

and jute bags. The demolition order was directed to be completed by

25.05.2017. Copy of the said order was circulated in the office of the

Officer-in-Charge of the respective police station and also to the

Divisional Commissioner of the department of Fire and Emergency

Service, Howrah Zone.

In the contempt proceeding being CPAN No. 338 of 2017 arising

out of WP No. 19783(W) of 2016 an order was passed on 08.12.2017 on

the submission made on behalf of the Howrah Municipal Corporation,

that the Corporation was ready and willing to comply with the order of

the Court, but they have been informed that the learned Civil Court has

passed an order of injunction directing maintenance of status quo in the

said premises. The Court directed the Howrah Municipal Corporation to

examine the paraphernalia and come to a decision regarding the action

to be taken. The Corporation was directed to prepare an action proposed

to be taken plan to comply with the order of the Court dated

22.09.2016.

The private respondent, with an oblique intension to bypass the

demolition, filed a title suit being no. 56 of 2017 before the learned Civil

Judge, Senior Division, 2nd Court, Howrah against the Howrah

Municipal Corporation and others on the plea that the plaintiff was a

tenant in the suit premises and have been in possession of the property

partly by running business and partly for residential purpose. The

defendant No. 1 along with their men and agents came in front of the

property and told the plaintiff to vacate the same. The defendants

though initially failed but thereafter again came to the premises and

started to demolish the tenanted premises under the occupation of the

plaintiff, but due to the strong protest on the part of the plaintiff and

her family members, the defendants failed to complete their illegal work.

Finding no other alternative, the plaintiff filed the Suit along with an

injunction application for necessary relief.

From the documents annexed to the plaint the Court was of the

prima facie view that the plaintiff was a tenant in the suit premises. The

Court was of the opinion that unless an order of restrain is passed the

plaintiff is likely to suffer irrepressible loss. The Court by order dated

08-02-2017 directed the parties to maintain status quo in respect of the

suit scheduled property.

The petitioners submit that they were not made parties in the said

Suit. An application was filed by the petitioners for being added as party

defendants in the said Suit, but the prayer of the petitioners stood

rejected by an order dated 08-01-2018.

By an order dated 08-02-2018 the order of status quo was

extended and the parties were directed to maintain status quo as regard

the nature, character and possession of the suit property till the

disposal of the Suit.

The Suit is sub judice till date.

In the impugned order dated 26-02-2020 the Commissioner of

Howrah Municipal Corporation observes that construction has been

made in the premises No. 62/A/2 and 62/A/3, J. N. Mukherjee Road in

the absence of any sanction plan from the Howrah Municipal

Corporation. However, in view of the injunction order passed by the

Learned Civil Judge (Senior Division), 2nd Court, Howrah on 08-02-2018

in the Title Suit No. 56 of 2018, the department refrained from carrying

out any further demolition work. The Commissioner directed the Office

Superintendent and the in-charge of the Law Department / Legal Cell of

the Howrah Municipal Corporation to initiate necessary legal procedures

so as to take subsequent necessary steps under Section 177(1) of the

Howrah Municipal Corporation Act, 1980 as amended, thereafter.

It is the specific case of the petitioner that in spite of the order of

demolition passed by the Howrah Municipal Corporation duly affirmed

by several orders of this Court, the Howrah Municipal Corporation is

sitting tight over the matter and not taking steps to demolish the

unauthorized construction.

The learned advocate appearing for the private respondent

submits that there is a valid order of injunction restraining the Howrah

Municipal Corporation from taking any step with regard to the nature,

character and possession of the suit property till the disposal of the

Suit. During pendency of the order of status quo the Corporation ought

not to proceed with the matter.

It has further been submitted that if the order of demolition is

implemented, then the nature and character of the Suit property will

change and the same will be in violation of the order of status quo

passed by the Learned Civil Judge.

The learned advocate appearing for the Howrah Municipal

Corporation submits, upon instruction, that the Corporation is not in a

position to take any step in the matter in view of the order of injunction

which has been passed by the learned Civil Judge.

Upon hearing the submissions made on behalf of both the parties,

it appears that the private respondent way back in the year 2013

admitted before the Court that the construction was made without

obtaining any sanction from the Howrah Municipal Corporation.

Relying on such submission, the Court by order dated 24-09-2013

directed the private respondent to remove/demolish the entire

unauthorized constriction from the said premises, failing which, the

municipal authority was directed to demolish the unauthorized

construction and realize the cost of such work from the private

respondent.

Since thereafter, time and again, the order of demolition passed

by the Howrah Municipal Corporation, duly affirmed by this Court in

several proceedings was directed to be implemented, but unfortunately,

till date, the order of demolition has not been given effect to for no

plausible reason.

The Court in the order dated 22-09-2016 specifically observes

that the order of demolition dated 03-07-2013 has become final and

binding between the parties. In spite of categorical orders passed by the

Court, the Howrah Municipal Corporation as well as the private

respondent have left no stone unturned to ensure that the order of

demolition is not acted upon.

The private respondent approached the Court of the Learned Civil

Judge by impleading Howrah Municipal Corporation and its official as

party respondents in the Title Suit No. 56 of 2017 and obtained an order

of status quo.

The leading fact seeking an order of injunction was not placed

before the Learned Civil Court. The plaintiff, being the private

respondent herein, did not disclose before the learned Civil Judge, that

the schedule portion was an unauthorized one suffering an order of

demolition passed by the Howrah Municipal Corporation duly affirmed

by the Learned Single as well as the Hon'ble Division Bench of this

Court.

In the absence of proper facts being placed before the Learned

Civil Judge, the Court was misled and the order of injunction was

obtained in the said Suit. The Learned Civil Judge was not made aware

of any of the orders passed in the demolition proceeding.

An order of status quo cannot be passed in respect of a

structure/premises which has been constructed illegally and suffers an

order of demolition passed by the competent authority, duly affirmed by

the Hon'ble Division Bench of a High Court. The same amounts to

validation of the illegal structure. It also runs contrary to the order of

demolition passed by the Hon'ble High Court. Judicial propriety

demands that the order passed by the superior forum shall always get

precedence.

The order of demolition, challenged unsuccessfully before this

Court, has attained finality and it is high time that the Howrah

Municipal Corporation acts to give effect to the same.

Dishonest and unscrupulous builders will always be in the look-

out for ideas for stalling and/or circumventing the order of demolition

passed in respect of structures constructed unauthorizedly, and let out

or sell the same to unsuspecting buyers creating third party

right/interest. The same will give rise to multiplicity of proceeding and

in the process the order of demolition will remain unattended for years

together. Prayer for regularizing such unauthorized construction will

follow citing passage of time, hardship, investment of money, financial

loss and a host of other reasons. The same ought not to be permitted by

the Court, otherwise the order of the Court will be rendered otiose.

An order passed by a competent authority is meant to be executed

and acted upon with promptitude. The same is not meant to remain in

the file and gather dust for years together, only to be brushed under the

carpet in an opportune moment. It is the pious duty of the Court to

ensure that a litigant gets relief at the earliest and is not made to suffer

unnecessarily. The rule of law has to be upheld at any cost and anyone

trampling the same should not be spared.

In the case at hand the private respondent, despite several orders

of Court, has simply managed to hold on to the unauthorized

construction with impunity. The same certainly would not have been

possible without the tacit aid and assistance of the Corporation. The

petitioner is knocking the doors of the Court since 2012 to get an

unauthorized construction removed. Even though order was passed by

the Corporation for removal of the unauthorized construction way back

on 15-06-2012, the same is still standing tall for strange, mysterious

reasons. The Court affirmed the order of demolition but even thereafter

the same is yet to be removed. The Court will be failing in its duty if the

unauthorized construction is permitted to remain any further.

In view of the above, the instant writ petition is disposed of by

directing the respondent No. 2 being the Commissioner of the Howrah

Municipal Corporation to take prompt necessary steps for

implementation of the order of demolition, strictly in accordance with

law, at the earliest, but positively within a period of three months from

the date of communication of a copy of this order. Keeping in mind the

prevailing pandemic situation sufficient time is being granted to the

Corporation to take necessary steps.

The Commissioner of Police, Howrah Police Commissionerate

through the Inspector in Charge, Malipanchghora Police Station and the

Divisional Commissioner, Department of Fire and Emergency Services,

Howrah Zone are directed to render all necessary assistance to the men

and agents of the Howrah Municipal Corporation at the time of

demolition of the unauthorized construction.

It is made abundantly clear that the order of status quo passed by

the Ld. Civil Judge will not stand in the way of the Corporation to

demolish the unauthorized construction of the premises Nos. 62/A/2 &

62/A/3, J.N Mukherjee Road, Ghusuri, Howrah, 711 107.

The Howrah Municipal Corporation shall recover the charges of

demolition from the private respondent in accordance with law.

The Howrah Municipal Corporation shall file an action taken

report before this Court on or before November 10, 2021.

WPA 7641 of 2021 stands disposed of.

No order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties expeditiously on compliance of usual legal

formalities.

(Amrita Sinha, J.)