Prabir Ghosh vs Sri Sri Iswar Singhabahinin ...
2021 Latest Caselaw 5183 Cal

     28.09.21
39   Ct. No.11
      Sws.M
                                        MAT 497 of 2021
                                              with
                                      IA No: CAN 1 of 2021
                                              with
                                          CAN 2 of 2021




                                           Prabir Ghosh
                                                vs.
                          Sri Sri Iswar Singhabahinin Thakurani, RPTD
                         by Shebait Sarojendra Nath Bose & ORs.


                                      (Via Video Conference)


                      Mr. Surajit Samanta

                                                ......for the Appellant


                      Ms. Seba Roy
                      Mr. Bhaskar Sengupta
                      Mr. Prosenjit Das

                                          ......for the Respondent No.1

Mr. Alok Kumar Ghosh Mr. Ranajit Chatterjee Ms. Sima Chakraborty Mr. Subhransu Panda

......for the KMC

Party/Parties is/are represented in the order of

their name/names as printed above in the cause title.

Under challenge in this appeal is the order dated

22nd March, 2021 in the writ petition. The petitioner is

the private respondent in this appeal.

At issue in this appeal is the construction of a

staircase along with a stair head room at the premises in

issue being No. 32, Bose Para Lane, Ward No. 008,

Borough No. I under the Kolkata Municipal Corporation

(KMC) (referred to for short as the said premises, the said

staircase, and the said stair head room respectively).

The Hon'ble Single Bench, inter alia, held that the

that since the demolition proceedings initiated on behalf

of the KMC have reached a stage whereby the order of

demolition passed by the Special Officer (Building) on the

30th June, 2007 has reached finality, the same requires to

be executed at once. Accordingly, the KMC was directed

to take steps to demolish the unauthorised construction

in terms of the order of the Special Officer (Building)

dated 30th June, 2007 within a specified time.

Being aggrieved, the appellant has arrived before

this Court.

Mr. Samanta, learned Counsel appearing for the

appellant, submits that the Hon'ble Single Bench failed to

notice an earlier order of the Hon'ble Division Bench

dated 11th September, 2014 in MAT 1364 of 2013. MAT

1364 of 2013 was in respect of the first demolition

proceeding No. 15 -D /2002-2003 which was decided by

the BT (Building Tribunal) Appeal No. 59 of 2004. The

Hon'ble Division Bench, inter alia, directed the

Superintending Engineer, Public Works Department

(PWD) to appoint an authorised responsible Executive

Engineer to inspect the premises in presence of both the

parties after giving due notice to the parties and then

place a report before the Appellate Authority of the KMC.

It was further directed that in the event the statutory

Appellate Authority ultimately finds that the demolition

was conducted in respect of a structure which was not

irregular, the same shall be restored at the cost of the

KMC. The parties were also permitted to place on record

before the PWD documents in their possession indicating

jointness of the wall and, any relevant fact.

Mr. Samanta submits that the facts as decided by

the Hon'ble Division Bench in MAT 1364 of 2013

connected to the first demolition proceeding being Case

No. 15-D/2002-2003 have a direct bearing on the second

demolition proceeding numbered as 68 of 2003-2004. It

is pointed out that the Hon'ble Single Bench could not

have directed demolition of the alleged unauthorised

structure in terms of the order of the Special Officer

(Building) dated 30th June, 2007 without taking judicial

notice of the order of the Hon'ble Single Bench in MAT

1364 of 2013 (supra).

It is also submitted that an intricate point in issue

connected to the demolition is the jointness of the

common wall share between the present appellant and

the private respondent/the writ petitioner. The jointness

of the common wall is the subject matter of a civil lis

pending before the competent Civil Court. It is pointed

out that unless the competent Civil Court decides, one

way or the other, on the jointness of the common wall,

any construction made by one of the parties connected to

such common wall cannot be rejected oughtright as

unauthorised.

Per contra, Ms. Roy, learned Counsel appearing

for the private respondent in this appeal/the writ

petitioner draws the attention of this Court to the fact

that the second demolition case No. 68 of 2003-2004 was

challenged in appeal before the Municipal Building

Tribunal numbered as BT Appeal No. 55 of 2007. It is

pointed out that BT appeal No. 55 of 2007 preferred by

the present appellant/the Person Responsible (PR) was

dismissed by order dated 6th May, 2006 thereby affirming

the order of demolition in Case No. 68-Dof 2003-2004.

Ms. Roy submits that challenging the proceedings

and the final Orders issued by the Learned Tribunal, writ

petitions were preferred by the parties. The writ petitions

were decided by a common order of the Hon'ble Single

Bench dated 12th August, 2013. Against the common

order, the appeal being MAT 1364 of 2013 was preferred

by the present appellant which was decided by directing

inspection of the premises and to place a report before the

statutory Appellate Authority.

Mr. Ghosh, learned Counsel appearing for the

Respondents/ KMC, submits that the subject of alleged

unauthorised construction has been visited over and over

again. It is pointed out by an order of this Court dated

11th June, 2021, the Executive Engineer (Civil), Building

Department/Borough I, KMC has filed a detailed report

dated 29th June, 2021.

Mr. Ghosh also refers to an inspection carried out

in terms of the order of the Hon'ble Division Bench in

MAT1364 of 2013 by the Executive Engineer II, City

Division, PWD. The inspection report, inter alia, discusses

the presence of the alleged unauthorised construction on

the terms as contained therein.

Having heard the parties and considering the

materials placed, this Court finds that from the order in

MAT1364 of 2013 the Hon'ble Division Bench clearly

directed that all points upon inspection of the premises in

question shall be placed before the statutory Appellate

Authority. This Court thereafter finds that such

inspection has been carried out in terms of the order in

MAT1364 of 2013 and as reported by the Executive

Engineer in his report dated 29 th June, 2021, the issue

has been visited, revisited and visited again and again.

In the above view of the matter, this Court finds

no justification in keeping this issue pending for

consideration further. Since the demolition proceedings

relate to the alleged unauthorised construction in respect

of which BT Appeal No. 55 of 2007 filed by the present

appellant is still pending, the parties are permitted to take

all points before the Learned Municipal Building Tribunal

which shall then decide the appeal not later than a period

of eight weeks from the date of communication of this

order.

All points are kept open to be decided on merits

by the Learned Tribunal.

MAT 497 of 2021 with CAN 1 of 2021 stand

accordingly disposed of.

In view of the order passed today, the judgment

and order impugned dated 26th March, 2021 in the writ

petition stands permanently stayed.

The application for substitution filed by the

appellants for substituting now the deceased Respondent

No. 1 in this appeal, is filed within time and thus allowed.

Leave is granted to the appellant to make the

necessary amendment to the cause title.

Registry is directed to take the usual steps.

CAN 2 of 2021 also stands disposed of.

All parties to act on a server copy of this order

downloaded from the official website of this Court.

Urgent Xerox certified copy of this order, if applied

for, be supplied to the parties, subject to compliance with

all requisite formalities.

(Kesang Doma Bhutia, J.) (Subrata Talukdar, J)