Shail Kumari Singh vs Girija Shankar Shaw @ Jaiswal & ...
2022 Latest Caselaw 830 Cal

           IN THE HIGH COURT AT CALCUTTA
                    Civil Appellate Jurisdiction
                           (Appellate Side)

                         F.M.A 1062 of 2021
                                With
                       IA No. C.A.N. 1 of 2021

                         Shail Kumari Singh

                                   Vs.

             Girija Shankar Shaw @ Jaiswal & Others

Before: The Hon'ble Justice Arijit Banerjee
                    &
         The Hon'ble Justice Kausik Chanda

For the Appellant             :     Mr. Haradhan Banerjee, Sr. Adv.
                                    Mr. Nakendu Pal, Adv.
                                    Mr. Ritoban Sarkar, Adv.
                                    Ms. Madhuja Barman, Adv.
                                    Mr. Partha Pratim Mukhopadhyay, Adv.


For the Private Respondent        : Mr. Kalyan Bandyopadhyay, Sr. Adv.

Mr. Ram Anand Agarwala, Adv.

Ms. Nibedita Pal, Adv.

Mr. Ananda Gopal Mukherjee, Adv.

For the H.M.C                 : Mr. Sandipan Banerjee, Adv.
                                Mr. Ankit Sureka, Adv.


Heard On                     : 24.12.2021, 19.01.2022, 25.01.2022,
                               09.02.2022

CAV On                        : 09.02.2022

Judgment On                   : 25.02.2022



Arijit Banerjee, J.:

1. This case is a classic example of abuse of process of Court by the

appellant.

2. The matter relates to premises nos. 62/A/2 and 62/A/3, J.N.

Mukherjee Road, Ghusuri, Howrah. Complaining that the appellant/private

respondent is making unauthorised construction on the said premises, the

writ petitioners made a representation to the Howrah Municipal Corporation

(in short "HMC"). Alleging inaction on the part of HMC, the writ petitioners

filed a writ petition being W.P. no. 17010 (W) of 2012. Such writ petition was

disposed of by a learned Single Judge by an order dated September 13,

2012, the relevant portion of which reads as follows:-

"Having regard to the fact that the learned Advocate appearing

for the private respondent no. 4 submits that his client is not

raising any construction in the premises in question and also by

taking note of the fact that the Howrah Municipal Corporation has

not issued any sanctioned plan authorising the private respondent

no. 4 to raise any construction in the said premises, this Court

disposes of this writ petition by passing an order of injunction

restraining the respondent no. 4 from raising any construction in

the premises-in-question without any legal authority and without

obtaining any sanctioned plan from the municipal authority.

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

municipal authority from the petitioner and/or anyone else

regarding any unauthorised construction in the said premises, the

municipal authority will take steps in accordance with law."

3. It appears that in spite of the aforesaid restraint order, the appellant

made unauthorised construction on the said premises. This prompted the

writ petitioners to file another writ petition being W.P. no. 19494 (W) of 2013

praying for a direction upon HMC to implement the demolition order dated

June 15, 2012, passed by HMC in respect of the unauthorised construction

made by the appellant. The appellant also filed a writ petition being W.P. no

28954 (W) of 2013 challenging the demolition proceedings and the order of

demolition.

4. The two writ petitions were heard together and disposed of by an order

dated September 24, 2013. The learned Judge recorded the admission made

on behalf of the appellant that the impugned construction had been made

without obtaining any sanctioned plan from the Municipal Authority. The

learned Judge allowed the petition of the writ petitioners. The appellant was

directed to remove the entire unauthorised construction within a fortnight,

failing which, the Municipal Authority was directed to demolish such

construction and realise the cost thereof from the appellant.

5. The appellant's appeal against the aforesaid order was dismissed by a

Division Bench by a judgment and order dated December 19, 2013. The

Division Bench also recorded the admission of the appellant that she had

made unauthorised construction on the ground floor as well as first floor of

the concerned building to the extent of 56.56 Sq. mts.

6. It is pertinent to note that in a suit being Title Suit No. 165 of 2007,

on August 6, 2014, the Civil Court passed a decree of eviction against the

appellant herein in respect of the concerned property.

7. Since the order of demolition passed by the HMC remained

unimplemented and further unauthorised construction was allegedly being

made by the appellant, the writ petitioners approached this Court once

again by filing W.P. no. 19783 (W) of 2016. By an order dated September 22,

2016 the learned Single Judge recorded that the demolition order has

become final and binding between the properties. The learned Judge

directed that the Commissioner of HMC will ensure that the demolition

order is carried out within four weeks.

8. Alleging violation of the order dated September 22, 2016, the writ

petitioners filed a contempt application being CPAN No. 338 of 2017. During

the pendency of the contempt petition, the Commissioner of the HMC by an

order dated May 17, 2017 again directed demolition of the remaining

unauthorised portion of the concerned premises, if necessary, with police

help.

9. In the contempt proceedings, an order was passed on December 8,

2017 recording the submission made on behalf of HMC that HMC was ready

and willing to comply with the order of the Court but the Corporation has

been informed that a Civil Court has passed an order of injunction directing

maintenance of status quo as regards the concerned premises. The learned

Judge directed HMC to examine the paraphernalia and come to a decision

regarding the action to be taken. The Corporation was directed to prepare an

action proposed plan to be taken to comply with the Court's earlier order

dated September 22, 2016.

10. It subsequently transpired that the appellant has filed a Title Suit

being T.S. 56 of 2017 before the learned Civil Judge, Senior Division, 2nd

Court, Howrah against HMC and others and obtained an order dated

February 8, 2017, directing the parties to maintain status quo in respect of

the suit property. The writ petitioners were not made parties in the said suit.

They applied for being added as party defendants. Their prayer stood

rejected by the learned Suit Court by an order dated January 8, 2018.

11. By an order dated February 8, 2018, the order of status quo was

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

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

the suit. The suit is still pending.

12. An order was passed by the Commissioner of HMC on February 26,

2020, the relevant portion whereof reads as follows:-

"Keeping in view the Orders of the Hon'ble High Court as

already referred above and the injunction order passed by

learned Civil Judge (Senior Division), 2nd Court, Howrah dated

08.02.2018 in respect of T.S. no. 56 of 2017, and the

departmental reports as obtained yet now in respect of the

constructions made, and in absence of any sanctioned plan

from HMC, for the construction made at 62/A/2 and 62/A/3,

J. N. Mukherjee Road, it is felt imperative that, though the

construction is illegal, unauthorised and liable to be

demolished, for the time being HMC/its men/officials shall

refrain from carrying out further demolition.

I, therefore, also, direct the OS and In Charge of the Law

Department of HMC/Legal Cell of HMC, to initiate necessary

proper legal procedures, to approach before the appropriate

Court of appeal with an application for setting aside the

injunction, and in the event of a favourable order, A.E. -

Borough-1, is to take subsequent necessary steps under

Section 177(1) of HMC Act 1980 (as amended yet now),

thereafter."

This order of the Commissioner of HMC was challenged by the

writ petitioners by way of filing W.P.A no. 7641 of 2021 which was

disposed of by the learned Single Judge by the order dated July 2,

2021 which is under challenge in this appeal.

13. The learned Judge took pains to record the entire factual background

of the case in the impugned order. The relevant portion of the impugned

order reads as follows:

"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 realise 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 has 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 Judge 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

lookout 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."

14. Appearing for the appellant, learned Senior Counsel Mr. Haradhan

Banerjee submitted that since a competent Civil Court has passed an order

of status quo in respect of the property in question, in a suit in which HMC

is a party, without having such order vacated, HMC cannot demolish the

said property or any portion thereof. The status quo order is binding on

HMC which is a defendant in the suit.

15. Appearing for the writ petitioners/respondents, Mr. Kalyan

Bandyopadhyay, learned Senior Advocate, submitted that the concerned

officers of HMC are in unholy entente with the appellant. That is how the

appellant has successfully prevented implementation of the demolition order

which was first passed about ten years ago. Mr. Banerjee submitted that the

demolition order should be executed forth with. The present appeal is wholly

meritless and should be dismissed with costs.

16. Mr. Sandipan Banerjee learned Advocate appearing for HMC

submitted that steps are being taken for execution of the demolition order in

terms of the judgment and order of the learned Single Judge impugned in

this appeal.

17. We have given our anxious consideration to the rival contentions of

the parties.

18. We have recorded the material facts of the case hereinabove. The facts

would show that initially an order for demolition of the property in question

was passed by HMC in 2012. Time and again such order has been affirmed

by this Court.

19. We are not a little surprised as to how a demolition order passed in

respect of a property which HMC has found to be an unauthorised

construction, remains un-implemented for ten years. This surely would not

have been possible without the concerned officers of HMC and the appellant

being hand-in-glove. It is the duty of HMC to ensure that unauthorised or

illegal constructions are not made within its territorial jurisdiction, and if

made, the same are demolished at the earliest. This is also in the interest of

safety of the members of the public. Unauthorised constructions are often

prone to collapsing and thereby endangering the lives and limbs of the

people in and around such construction.

20. The demolition order has attained finality. We find that after the

learned Single Judge passed the order under appeal, the appellant, in a

desperate effort, amended the plaint filed in Title Suit no. 56 of 2017 in the

Howrah Court seeking to challenge the demolition order passed by HMC

which has been affirmed repeatedly by this Court. We are sure that the

learned Howrah Court would not have passed the order of status quo or the

order allowing amendment of the plaint had all the facts of the case been

brought to the notice of that Court. It is inconceivable that with the

knowledge that this Court has affirmed an order of demolition of a property,

the learned Howrah Court would pass an order of status quo in respect of

such property. We find no satisfactory answer or explanation as to why HMC

did not place the entire facts before the learned Howrah Court.

21. The appellant has successfully stalled implementation of the order of

demolition of the unauthorised construction made by her, for a very long

period of time, by resorting to devious means. The order of status quo

passed by the learned Howrah Court cannot be effective notwithstanding

orders by this Court affirming the demolition order. Further, the order of

status quo passed in a T.S. 56 of 2017 wherein HMC is a party defendant,

cannot be construed in a manner which will prevent HMC from discharging

its statutory duties in larger public interest.

22. The order of High Court cannot be rendered ineffective and otiose by

the order of the learned Civil Judge. The order of a higher Court must

prevail over the order of a subordinate Court as otherwise it will lead to

complete judicial anarchy.

23. It is high time that the demolition order in question is carried out by

HMC in terms of the order passed by the learned Single Judge. The same

shall be done immediately and definitely within a fortnight from date.

24. Not only there is no merit in this appeal, it is a frivolous appeal and

amounts to abuse of the process of Court. The appeal and the connected

application are dismissed with costs assessed at Rs. 25,000/-. The appellant

will deposit the said cost in favour of the State Legal Services Authority,

West Bengal which will be earmarked for the Mediation cost fund, kept with

the State Legal Services Authority, West Bengal.

25. Copy of this order be duly communicated to the Member Secretary,

Mediation and Conciliation Committee, High Court, Calcutta and the

Member Secretary, State Legal Services Authority, West Bengal, within a

fortnight from date.

26. In the event the appellant fails to deposit the costs, as indicated

above, within the stipulated time period, the respondents or the State Legal

Services Authority will be at liberty to draw our attention to the same by

mentioning the matter before us.

27. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(KAUSIK CHANDA, J.)                              (ARIJIT BANERJEE, J.)