Calcutta High Court (Appellete Side)
Md. Rafik Molla vs Maheshtala Municipality & Ors on 31 August, 2022
04. 31.08.2022
Ct. No.6
Tanmoy
M.A.T. 1159 of 2022
Md. Rafik Molla
-Versus-
Maheshtala Municipality & Ors.
With
IA No: C.A.N. 1 of 2022
Mr. Hare Ram Singh, Adv.
...for the appellant.
Mr. Raghunath Chakraborty, Adv.
...for the Maheshtala Municipality.
Mr. S. Shah, Adv.,
Mr. Md. Shamim Halder, Adv.
...for the respondent no.5.
By consent of the parties, the appeal and the
connected application are taken up together for hearing
This appeal is directed against a judgment and
order dated July 19, 2022, whereby, the appellant's writ
petition being W.P.A. 14124 of 2022 was dismissed by
the learned Single Judge.
In an earlier writ petition being W.P.A. 19314 of
2021 (Sk. Kabir Uddin - Vs. - State of West Bengal &
Ors.), the writ petitioner therein had alleged that the
private respondent nos. 6 to 8 in that writ petition had
made unauthorized construction on the concerned land.
A demolition order dated September 28, 2021, had been
passed by the Chairperson of the Maheshtala
Municipality, but the order was not being implemented.
The writ petitioner prayed for implementation of the
demolition order.
It had been submitted before the learned Judge in
that earlier writ petition, on behalf of the private
respondents, that the said respondents had approached
the learned Civil Judge (Junior Division), 3rd Court at
Alipore, with an appeal against the demolition order in
terms of Section 218(3) of the West Bengal Municipal
Act, 1993 and an application had been filed for obtaining
interim stay order. The learned Judge was of the opinion
that some time should be granted to the private
respondents to try and obtain orders from the appellate
forum. Accordingly, the said writ petition was disposed
of by an order dated February 14, 2022, by passing the
following direction:-
"This order is being passed not on the merits of the
claims of the respondent nos.6 to 8, but on the
appreciation of the fact that due to the irregular
functioning of the civil courts during the pandemic
situation, the litigants may not have been able to
approach the courts with expedition and the courts may
not have been available to pass urgent orders.
Under such circumstances, the writ petition is
disposed of with a direction upon the Maheshtala
Municipality to take steps for implementation of the order
after a period of three months from date of communication
of this order. If within the said period, the respondent
nos.6 to 8 do not produce any protective order and/or
interim order against such order of demolition before the
municipality, the municipality will be at liberty to proceed
with the demolition, in accordance with law."
It appears that the persons responsible for the
unauthorized construction, who had approached the
civil Court by way of appeal, were unsuccessful in
obtaining interim order. The Municipality, by an order
dated June 17, 2022, fixed July 5, 2022, as the date for
carrying out demolition of the unauthorized
construction. At this stage, the present writ petition was
filed for staying the demolition proceedings.
Before the learned Single Judge, the writ petitioner
submitted that he was not a party to the earlier writ
petition. The private respondents herein submitted that
the present writ petitioner was a private respondent in
the earlier writ petition.
Without going into that controversy, the learned
Judge dismissed the writ petition by observing as
follows:-
"The petitioner has filed the present writ petition for
staying the demolition proceeding. The petitioner submits
that no notice was given to him prior to passing the order
of demolition.
Learned advocate representing the private
respondent submits that the petitioner was a party in the
earlier writ petition.
Be that as it may, as it appears that being aggrieved
by the order of demolition an appeal has been preferred
by the petitioner wherein he failed to obtain any order of
stay, accordingly, the Municipality shall proceed with the
demolition of the unauthorised construction as per the
schedule fixed by the Municipality.
There is no need for interference in the present writ
petition.
The Officer-in-Charge, Maheshtala Police Station
shall render all necessary assistance to the Maheshtala
Municipality at the time of conducting the demolition
proceeding.
The writ petition stands dismissed."
We have heard learned Counsel for the parties. We
see absolutely no infirmity in the order of the learned
Single Judge. The persons responsible had approached
the appellate forum challenging the demolition order
passed by the Municipality. They have failed to obtain
interim protection. In the earlier writ petition, by the
order dated February 14, 2022, the learned Single Judge
had granted three months time for obtaining order of
stay from the appellate forum, making it clear that upon
expiry of three months, the Municipality would be at
liberty to demolish the impugned construction unless in
the meantime the appellate forum sets aside or stays the
operation of the demolition order. That order dated
February 14, 2022, was not challenged by anybody
before a higher forum and the same attained finality.
Hence the Municipality would be at liberty to implement
its demolition order in question. We are of the view that
unauthorized constructions made by unscrupulous
builders have highly deterrent effect on the society at
large and the persons responsible for such constructions
deserve no sympathy. We find no ground to interfere
with the order under appeal.
The appeal being M.A.T. 1159 of 2022 and the
connected application being IA No: C.A.N. 1 of 2022 are
accordingly dismissed.
Let urgent Photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with all necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
