Calcutta High Court
Hamidul Haque vs The Kolkata Municipal ... on 15 December, 2022
OD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
IA No. GA/1/2022
With
OCOT/5/2022
WPO/2125/2022
In APO/77/2022
HAMIDUL HAQUE
-VS-
THE KOLKATA MUNICIPAL CORPORATION AND ORS
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE APURBA SINHA RAY
Date : December 15, 2022.
Appearance
Mr. Utpal Bose, Sr. Adv.
Mr. Rajdeep Mantha, Adv.
Mr. Anirudhya Dutta, Adv.
Mr. Bhupendra Gupta, Adv.
...for the appellant
Mr. Gopal Chandra Das, Adv.
Mr. Debangshu Mondal, Adv.
...for the KMC
Mr. Ranajit Chatterjee, Adv.
Mr. Aniruddha Mitra, Adv.
...for the respondent no.6
The Court : A judgment and order dated June 16, 2022 whereby the
appellant's writ petition was disposed of, is under challenge in this appeal.
The writ petitioner/appellant had approached the learned Single Judge
challenging a notice issued by the Kolkata Municipal Corporation (in short
'KMC') under Section 401 of the KMC Act, 1980 on April 18, 2022. By the said
notice, the writ petitioner was called upon to stop construction work at
premises no.6, Kasai Para Lane, Ward No.60, Borough-VI, Kolkata-700017, as
the same was allegedly being made in violation of the sanctioned plan.
Before the learned Single Judge, the writ petitioner argued that no
recent construction has been made. The construction that stands is a very old
one.
The respondent no.6, who claims to be the Mutwali of the auqaf which
is said to be the owner of the premises in question, submitted before the
learned Single Judge that the concerned building has been constructed
without obtaining any sanctioned plan therefor.
The learned Single Judge observed that "it appears that lately the
petitioner is not making any construction in the said premises. The construction
appears to be in existence for quite some time." Having so observed, the learned
Judge disposed of the writ petition with the following direction:
"In view of the above, the Municipal Commissioner is
directed to appoint an Engineer from the Head Office of the
Building Department of the Kolkata Municipal Corporation but not
from the concerned Borough to make a spot inspection upon prior
notice to both the parties, to ascertain the nature of the
construction that is standing on the said premises.
If the Corporation is of the opinion that the construction is
in existence for quite some time then the concerned authority of
the Corporation shall take a decision as to whether the said
construction is required to be removed or may be regularized in
accordance with law.
Kolkata Municipal Corporation shall conduct the inspection
preferably within a period of four weeks and take a decision in
the matter within a fortnight thereafter. The fate of the inspection
shall be intimated to both the parties immediately thereafter."
Being aggrieved, the writ petitioner has come up in appeal.
Mr. Bose, learned senior advocate appearing for the appellant,
contended that the learned Judge having found that no construction work is
going on presently, that should have been the end of the matter and no
further direction could have been given to the Engineer as the learned Judge
has done. The order is without jurisdiction.
The respondent no.6 in the writ petition, who is the respondent no.6 in
this appeal also, being the Mutwali of the concerned auqaf, is also aggrieved
by the order impugned and has filed a cross objection. The contention of the
Mutwali is that the learned Judge should not have given any discretion to the
Corporation to regularize the construction in question, which is wholly
unauthorized. To that extent, the Mutwali also assails the order of the learned
Single Judge.
It is a matter of record that when the appeal was moved, an order
dated August 25, 2022 was passed by a Co-ordinate Bench. By way of interim
order, it was directed that "No further action shall be taken by the Corporation,
pursuant to or on the basis of the order impugned herein, till the end of
September, 2022 or until further order, whichever is earlier."
It appears that soon thereafter a notice under Section 400 (1) of the
KMC Act was served by KMC on the appellant. Since the appeal was pending
and there was a subsisting interim order, the appellant immediately
approached this Court by filing GA/2/2022. A Co-ordinate Bench by an order
dated September 8, 2022 directed that no action will be taken on the basis of
the said notice under Section 400(1) of the KMC Act.
We are of the view that since a notice under Section 400(1) has been
issued, the same should be carried to its logical conclusion in accordance with
law. Both the appellant and the respondent no.6 would be entitled to
participate in the proceeding under Section 400(1) of the KMC Act. We have
not gone into the merits of the case at all.
However, in view of the notice under Section 400(1), the notice under
Section 401 of the KMC Act has lost its force. This does not of course mean
that anybody including the appellant or the respondent no.6 can make any
unauthorized construction. The order of the learned Single Judge is set aside.
Accordingly, the appeal being APO/77/2022, cross objection being
OCOT/5/2022 along with application being IA No. GA/1/2022 are disposed
of.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
sp3
