Calcutta High Court (Appellete Side)
Tapan Kumar Mukherjee vs The Kolkata Municipal ... on 19 March, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Hiranmay Bhattacharyya
MAT 799 OF 2020
With
IA No. CAN 1 of 2020
With
CAN 2 of 2021
Tapan Kumar Mukherjee
Vs.
The Kolkata Municipal Corporation and Others
For the Appellants : Mr. Ayan Mitra
Ms. Antara Panja................. advocates
For the State Respondents : Mr. Benazir Ahmed.............. advocates
For the KMC : Mr. Alak Kumar Ghosh
Mr. Gopal Chandra Das...........advocates
For the Respondent Nos. 19(a)
& (b) : Mr. Biswanath Chatterjee
Mr. Sumitava Chakraborty...... advocates
Heard on : 05.03.2021
Judgment on : 19.03.2021
Hiranmay Bhattacharyya, J.:-
The instant appeal is at the instance of the
complainant/respondent no. 7 in the writ petition and is directed
against an order dated November 5, 2020 passed by an Hon'ble
Single Judge in WPA 9212 of 2020.
By the order impugned, the demolition order dated June 11,
2019 passed by the Special Officer (Building), Kolkata Municipal
Corporation in Demolition Case no. 7-D/B-IX/19-20 was set
aside and a direction was passed to decide the complaint
regarding the demolition of the building in question afresh upon
hearing the writ petitioner and the complainant/ appellant
herein.
This case has a chequered history. The writ petitioner, who
is the predecessor-in-interest of the respondent nos. 19(a) and
19(b) to the instant appeal, claims to be a co-owner in respect of
the property being premises no. 4/2H/14/1, Bhukailash Road,
Khiddirpur, Kolkata- 700 023 ( for short "the said premises"). The
writ petitioner alleged that in terms of the development
agreement, the respondent no. 8 and 9 in the writ petition/
respondent nos. 7 and 8 herein agreed to construct a G+4 storied
building on the said land. The writ petitioner claimed to have
acquired knowledge through the officer-in-charge of the
concerned police station that the municipal authority has
initiated a proceeding under Section 400 of Kolkata Municipal
Corporation Act, 1980 (for short "the KMC Act,1980") and an
order of demolition of the said prmises was passed and the
demolition work is to be carried out by the corporation authority.
The writ petitioner further claimed to have acquired knowledge
about the initiation of a writ petition being WP No. 1700 (W) of
2019 at the instance of the complainant/ appellant herein
whereby an order was passed directing the Kolkata Municipal
Corporation to initiate a proceeding under Section 400 of KMC
Act, 1980 and to conclude the same in accordance with law after
granting an opportunity of hearing to all parties. The writ
petitioner filed a writ petition being WP No. 16865 (W) of 2019
challenging the order dated August 14, 2019 alleging that the
same is a notice of demolition of a building, which is under
construction. The said writ petition being WP No. 16865 (W) of
2019 was disposed of by an order dated September 30, 2019 as
the writ petitioner had already preferred a statutory appeal
against the order of the Special Officer (Building). The writ
petitioner alleged that a notice of demolition was served upon
him which indicated that demolition activities will be done on
November 5, 2020 which prompted the writ petitioner to file the
instant writ petition being WPA 9212 of 2020.
The writ petition was disposed of by an order dated
November 5, 2020. Being aggrieved against such order, the
complainant/ respondent no. 7 to the writ petition preferred the
instant appeal.
The writ petitioner expired after disposal of the writ petition
and the instant appeal was preferred impleading the heirs of the
said writ petitioner as respondent nos. 19(a) and 19(b) to this
appeal.
Mr. Ayan Mitra, the learned advocate for the appellant
contended that the impugned construction is an unauthorised
one as the same was constructed without any sanction plan. He
further contended that the Municipal Corporation initiated a
proceeding under Section 400 of the KMC Act, 1980 and the
same was concluded by passing an order of demolition of G+4
storied building. He also contended that several opportunities
were granted to the writ petitioner to contest the demolition
proceedings but the writ petitioner did not attend the hearing on
several occasions and accordingly the order of demolition was
passed. He contended that the order impugned suffers from
infirmity inasmuch as no further opportunity of hearing ought to
have been granted to the respondent nos. 19(a) and 19(b) in the
instant appeal when they failed to avail of such opportunities
earlier. He further contended that the order impugned in the writ
petition is an appealable one and as such the instant writ
petition ought not to have been entertained by the Hon'ble Single
Judge.
Mr. Ghosh, the learned advocate for the Kolkata Municipal
Corporation (for short "the KMC") drew the attention of the Court
to the several orders passed by Hon'ble Single Judges as well as
the order dated June 11, 2019 passed by the Special Officer
(Building) in the said demolition case and contended that the
Special Officer (Building) initiated a proceeding under Section
400 of the KMC Act, 1980 pursuant to an order passed by an
Hon'ble Single Judge on a writ petition filed by the appellant
herein. He further contended that a G+4 storied structure has
been erected at the said premises without any sanction plan. He
also contended that the KMC Act, 1980 provides for a remedy by
way of an appeal against a demolition order and as such the
Hon'ble Single Judge ought not to have set aside the order of
demolition passed by the Special Officer (Building) in exercise of
powers under Article 226 of the Constitution of India.
Mr. Chatterjee learned advocate appearing for the
respondent nos. 19(a) and 19(b) seriously disputed the
contentions of Mr. Mitra and Mr. Ghosh. He contended that the
developers who are the respondent nos. 7 and 8 herein were
entrusted with the work of construction of the building at the
premises in question. He also contended that neither the writ
petitioner nor his heirs, who are the respondent nos. 19(a) and
19(b) in the instant appeal, are responsible for raising the
construction at the premises in question. He further contended
that in spite of a specific direction passed by Hon'ble Single
Judge in WP No. 1700 (W) of 2019 to initiate a proceeding under
Section 400 of the KMC Act, 1980 and to conclude the same in
accordance with law upon granting an opportunity of hearing to
the parties, such proceeding was disposed of without giving an
opportunity of hearing to the writ petitioner i.e. the predecessor
in interest of the respondent nos. 19(a) and 19(b) herein. He
further contended that pursuant to the liberty granted by
another Hon'ble Single Judge in WP No. 16865 (W) of 2019 an
appeal was preferred by the writ petitioner before the Building
Tribunal but the same is pending. He next contended that as the
Building Tribunal is not functional the writ petitioner was
virtually rendered remediless in such a situation and he had no
other option but to approach the Writ Court. Mr. Chatterjee,
thus, supported the judgment passed by the Hon'ble Single
Judge. He assailed the order of demolition passed by the Special
Officer (Building) on the ground of violation of the principles of
natural justice.
Mr. Benazir Ahmed, learned advocate for the State
supported the order passed by the Hon'ble Single Judge.
We have heard the learned advocates for the parties and
considered the materials placed before us.
From the order dated March 15, 2019 passed in WP No.
1700 (W) of 2019 it is evident that by an order dated January 29,
2019 on the said writ petition, a direction was passed upon the
concerned officer of KMC to visit the locale upon notice to the
private parties and to submit a report in the form of an affidavit.
The said order further reflects that pursuant to such direction, a
report was filed which revealed that an inspection was conducted
and a G+4 storied RCC framed structure has been found to have
been illegally erected at the concerned premises and no sanction
plan was available in the office record and a stop work notice
under Section 401 of the KMC Act, 1980 was also issued. By the
said order, the Hon'ble Single Judge directed the competent
authority of KMC to initiate proceedings under Section 400 of the
KMC Act 1980 and to conclude the same in accordance with the
law and upon granting an opportunity of hearing to the private
parties.
It appears from the materials on record that a Demolition
Case being no. 7-D/B-IX/19-20 was initiated which came up for
hearing initially on May 14, 2019 when the
complainant/appellant herein was present but none was present
on behalf of the persons responsible. It further appears from the
record that another date of hearing was fixed by the Special
Officer (Building) on June 4, 2019 on which date also the
complainant was present but none of the persons responsible
were present. The Special Officer (Building) after going through
the materials on record passed an order that the G+4 storied
building on the premises no. 4/2/H/14/1, Bhukailash Road
should be demolished by the persons responsible within 30 days
of the receipt of the order failing which the KMC authority will be
at liberty to demolish the same at the cost and at the risk of the
person responsible.
The writ petitioner i.e. the predecessor-in-interest of
respondent nos. 19(a) and 19(b) herein preferred a writ petition
being WP No. 16865 (W) of 2019 alleging that the order of
demolition passed in respect of the premises in question was
never served upon the writ petitioner nor any opportunity of
hearing was granted to the writ petitioner. The writ petitioner
approached the writ court alleging gross violation of the
principles of natural justice. That writ petition initially came up
for hearing on August 29, 2019 whereby the petitioner and the
respondent were directed to collect the order of Special Officer
(Building) dated June 11, 2019 from the office of the Supervisor
Building, Borough- IX by seven days from the date of order and
thereafter prefer statutory appeal before the appellate tribunal
within fifteen days. The said writ petition again came up for
hearing on September 30, 2019 when a supplementary affidavit
was filed by the writ petitioner herein thereby bringing on record
the fact that the writ petitioner herein has already preferred a
statutory appeal against the order of the Special Officer and the
said appeal was fixed on November 13, 2019. The Hon'ble Single
Judge was thus, pleased to dispose of the writ petition since the
Building Tribunal was in seisin of the matter.
The writ petitioner in paragraph 13 of the writ petition has
also specifically pleaded that pursuant to the direction and
liberty granted vide order dated August 29, 2019 the petitioner
has preferred a statutory appeal and the same is pending.
It further appears from the averments made in paragraph
15 of the writ petition that another writ petition being WPA No.
7614 of 2020 was dismissed by an order dated September 29,
2020 as some material facts were suppressed by the writ
petitioner herein in the said writ petition.
In spite of the fact that an Hon'ble Single Judge after
observing that there is no evidence whether the writ petitioner
received the Special Officer's order dated June 11, 2019 passed
an order dated August 29, 2019 directing the writ petitioner to
collect the said order from the office of the Supervisor Building,
Borough- IX and also that the writ petitioner by filing a
supplementary affidavit on a subsequent date stated that the
petitioner has already preferred a statutory appeal against the
order of the Special Officer (Building), the writ petitioner herein
filed the instant writ petition with the self-same allegation that
the order of demolition has not been communicated to the
petitioner till the date of filing of the instant writ petition. When
the writ petitioner herein have accepted the order dated August
29, 2019 passed in WP 16865 (W) of 2019 whereby the writ
petitioner was directed to collect the order of the special officer
dated June 11, 2019 from the office of the Supervisor Building,
Borough - IX, the writ petitioner herein was under an obligation
to collect the same as directed by the Hon'ble Single Judge. He
cannot now turn around and again complain that the respondent
authorities have not communicated the order passed by the
Special Officer (Building).
The Hon'ble Single Judge entertained the instant writ
petition being persuaded by the averments made in the writ
petition as well as the submission of the learned advocate for the
writ petitioner that though the writ petitioner has preferred a
statutory appeal before the Municipal Building Tribunal but the
writ petitioner was virtually rendered remediless as the Building
Tribunal was not functional at that point of time and also that
the order of demolition is passed without hearing the petitioner.
The Hon'ble Single Judge was thus, pleased to set aside the order
of demolition as the same was passed without hearing the
petitioner.
It would be evident from the order dated March 5, 2021
passed in this appeal that after an order was dictated directing
the appellant to file an affidavit that the respondent nos. 19(a)
and 19(b) shall not press the appeal before the Municipal
Building Tribunal, on the basis of submissions made in course of
hearing, Mr. Chatterjee, at a later stage, submitted on
instructions, that no appeal has been preferred by the
respondent nos. 19(a) and 19(b) herein before the Municipal
Building Tribunal challenging the order of demolition passed by
the Special Officer (Building), KMC.
Prior thereto an impression was given to the Hon'ble Single
Judges dealing with different writ petitions on the self- same
subject matter that a statutory appeal has indeed been preferred
by the present writ petitioner challenging the demolition order
passed by the Special Officer (Building) dated June 11, 2019.
Thus, the writ petitioner is guilty of making misleading and
distorted averments in the writ petitions as well as in the
affidavits filed in connection to the writ petitions.
The other ground on which the writ petitioner approached
this Hon'ble Court is that the order of demolition was passed
without giving an opportunity of hearing to the writ petitioner.
Similar grievance was made by the writ petitioner in the writ
petition being WP 16865 (W) of 2019 and the Hon'ble Single
Judge after taking note of such submission of the learned
advocate for the writ petitioner gave liberty to the petitioner to file
a statutory appeal before the Building Tribunal within a time
limit. The said order passed by the Hon'ble Singe Judge in WP
No. 16865 (W) of 2019 attained finality as the same was not
challenged before any higher forum. Thus, a second writ petition
on similar and identical allegation challenging the self-same
order of demolition was, thus, not maintainable.
It would be pertinent to mention here that the writ
petitioner chose not to appear on the dates fixed by the Special
Officer (Building) for hearing of the demolition case. It is evident
from the record that the writ petitioner herein, for reasons best
known to him, did not attend the hearing on May 14, 2019 and
also on June 4, 2019. Thus, the Special Officer (Building) was left
with no other alternative but to decide the demolition case upon
hearing the complainant/appellant herein and on the basis of
materials on record. Thus, it cannot be said that the principles of
natural justice has been violated in the instant case while
deciding the demolition case on the ground that the writ
petitioner was not heard.
Subsection 3 of Section 400 of the KMC Act, 1980 provides
that any person aggrieved by an order of the Municipal
Commissioner made under Subsection (1) may, within 30 days
from the date of order, prefer an appeal against an order to the
Municipal Building Tribunal constituted under Section 415 of the
KMC Act. In the instant case, the writ petitioner herein was
granted liberty by an Hon'ble Single Judge to prefer a statutory
appeal within a time limit fixed by the Hon'ble Judge. The writ
petitioner all along took the stand that a statutory appeal has
indeed been preferred by the writ petitioner herein against the
order of demolition passed by the Special Officer (Building) but
only at the later stage of hearing of the instant appeal on March
5, 2021 the writ petitioner disclosed that no statutory appeal has
been preferred at the instance of the writ petitioner herein
against the said order of demolition.
The writ petitioner herein failed to bring his case within the
exceptions for entertaining an application under Article 226 of
the Constitution of India in view of the availability of alternative
efficacious remedy of a statutory appeal. The writ petitioner took
a conscious decision not to prefer a statutory appeal even after
obtaining a liberty from the writ court on an earlier occasion.
This court by an order dated March 3, 2021 granted an
opportunity to the writ petitioner herein to produce the
sanctioned plan in respect of the impugned construction but the
learned advocate for the writ petitioners/ respondent nos. 19(a)
and 19(b) in course of hearing on March 5, 2021 submitted that
the said respondents cannot produce the sanctioned plan as,
according to the said learned advocate, the sanctioned plan is
with the developers.
It is evident from the record that the developers have also
not appeared in this appeal in spite of being duly served. The
learned advocate appearing for the KMC submitted that no
sanction plan in respect of the impugned construction is
available in the office record.
The writ petitioner/respondent nos. 19(a) and 19(b) are the
expected custodians of the sanctioned plan. They did not produce
the same before this court. No sanction plan is also available in
the records of the KMC.
Subsection (1) of Section 400 of the KMC Act, 1980 provides
that 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 the 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.
The writ petitioner/ respondent nos. 19(a) and 19(b) to this
appeal are knocking the doors of this Hon'ble Court only when
steps are being taken by the KMC for demolition of the impugned
construction. Even in this appeal, the said respondents did not
urge any point as to why the order of demolition could not have
been passed save and except that they were not heard by the
Special Officer (Building).
It is evident that the impugned construction commenced
and was proceeded with without any sanction plan. The
concerned authority initiated a demolition case and passed an
order of demolition on the basis of materials on record. This
Court is of the considered opinion that the order passed by the
Special Officer (Building) does not suffer from any infirmity.
For the reasons as aforesaid this court is of the considered
view that the Hon'ble Single Judge erred in law by entertaining
the instant writ petition and ultimately setting aside the order of
demolition passed by the Special Officer (Building) dated June
11, 2019.
The order dated November 5,2020 passed by the Hon'ble
Single Judge in WPA 9212 of 2020 is set aside thereby restoring
the order of demolition dated June 11, 2019 passed by the
Special Officer (Building) in Demolition Case no. 7-D/B-IX/19-
20. The appeal being MAT 799 of 2020 stands allowed.
Accordingly, the applications being IA No. CAN 1 of 2020 and IA
No. CAN 2 of 2021 also stand disposed of.
There shall be, however, no order as to costs.
All parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
Urgent photostat certified copies, if applied for, be supplied
to the parties upon compliance of all formalities.
I agree.
(Subrata Talukdar, J.) (Hiranmay Bhattacharyya, J.)
