Calcutta High Court (Appellete Side)
Smt. Lakshmi Roy vs The State Of West Bengal & Ors on 15 July, 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 4760 of 2019
IA No. CAN 1 of 2020
(Old No. CAN 703 of 2020)
Smt. Lakshmi Roy
Vs.
The State of West Bengal & Ors.
For the writ petitioner :- Mr. Biswaroop Bhattacharyya, Adv.
Mr. Pratik Majumder, Adv.
For the State :- Mr. Sudipto Panda, Adv.
Ms. Mun Mun Tewary, Adv.
For the Municipality :- Mr. Amales Ray, Adv.
Ms. Mousumi Bhowal, Adv.
Mr. Aman Gupta, Adv.
For the respondent no. 5 :- Mr. Shaunak Ghosh, Adv.
Mr. Rajib Mullick, Adv.
Ms. Shreyashi Maity, Adv.
Heard on :- 01.07.2022
Judgment on :- 15.07.2022
Amrita Sinha, J.:-
The petitioner claims to be the daughter of one Shyamapada Roy,
since deceased, the predecessor in interest of premises no. 6A, Shyama
Prasad Colony at 360, Jessore Road, Kolkata 700055. The aforesaid
premises was given on lease in favour of the deceased Shyamapada Roy
by a registered deed of lease executed by the Refugee, Relief and
Rehabilitation Department, Government of West Bengal on 8th
September, 1983 in respect of twelve chittaks six sq. ft. of land in C.S.
plot no. 2114 (P), E/P no.- 6A, S.P. no. 20/1, Mouza- Kalidaha, PS- Lake
Town. The said Shyamapada Roy paid the municipal tax in respect of
the aforesaid property and resided thereon by constructing a single
storied structure with brick walls and tin roof.
The aforesaid premises was mutated in favour of the said
Shyamapada Roy by South Dum Dum Municipality and the property
was numbered as 6/1, presently 8, Shyama Prasad Colony.
The petitioner claims that the private respondents are occupiers of
the adjacent plot of land. The predecessor in interest of the private
respondents always tried to dispossess the said Shyamapada Roy from
his own property. As a consequence, the predecessor in interest of the
private respondents instituted Civil Suit being T.S. No. 249 of 1985
praying for eviction of licensee. The predecessor in interest of the
petitioner entered appearance in the said Suit and after the demise of
Shyamapada Roy the petitioner substituted herself in the said Suit and
is contesting the same.
During pendency of the Title Suit the predecessor in interest of
the private respondents took forceful possession of the suit property on
15th March, 1988. The said Shyamapada Roy filed an application for
mandatory injunction for restoration of possession of the suit property
on 24th June, 1989. Title Suit No. 249 of 1985 stood dismissed for
default on 26th April, 2005.
An independent Suit being Title Suit No. 310 of 2008 was filed by
the petitioner and her brother and sister's heirs praying for a declaration
that they are the lawful owners of the premises no. 6A, Syamaprasad
Colony and the defendants have no right, title and interest over the
property in any manner. A prayer has been made for restoration of
possession of the property in favour of the plaintiffs.
A Civil Revision application in connection with the said Suit was
filed before this Court and by an order dated 21st April, 2009 an order of
status-quo was passed with regard to the creation of third party interest
and/or possession in respect of the Suit property till disposal of the
revisional application.
The private respondents herein disclosed their defence in the
written statement wherein their stand is that the settlement made by
the Refugee, Relief and Rehabilitation department in favour of
Shyamapada Roy was bad and there never existed an independent
premise being no. 6A, Shyama Prasad Colony.
In June 2018 it came to the knowledge of the petitioner that new
construction work has been undertaken by the private respondents in
the said premises. The petitioner immediately lodged a complaint before
the Municipality on 2nd July, 2018 against such unauthorised
construction and prayed for initiation of appropriate proceeding to
demolish the illegal construction and to revoke the sanction plan, if any.
In response to the complaint filed by the petitioners, the South
Dum Dum Municipality initiated appropriate proceedings. A writ petition
was filed before this Court being WP No. 9560 (W) of 2018 which stood
disposed of on 25th July, 2018 relying upon the report filed by the
Municipality stating that there are unauthorised constructions,
directing the Municipality to invoke the provision of S. 218 of the WB
Municipal Act, 1993 and complete the exercise within a stipulated time
frame giving reasonable opportunity of hearing to all the parties.
The Municipality after hearing all the parties was of the opinion
that the building standing on the said premises has been constructed
without any sanction plan and direction was given to the private
respondents to demolish the entire unauthorised construction within a
specified time limit. The demolition was implemented in December,
2018.
The petitioner contends that the entire unauthorised construction
has not been demolished and accordingly made repeated
representations praying for demolition of the remaining portion of the
unauthorised construction.
The petitioner prays for a direction upon the Municipality to
forthwith demolish the entire unauthorised construction.
The petitioner lays stress on the decision taken by the
Municipality on 31st October, 2018 and 30th November, 2018 wherein
the Board of Councillors unanimously decided to demolish the building
at 360/6, Jessore Road, Shyama Prasad Colony by the Municipality and
to recover the cost of demolition from the persons responsible for
making construction.
It has been submitted that the Municipality does not have any
other alternative but to pass an order of demolition of the construction
standing at the aforesaid premises as the same was constructed without
obtaining any plan from the Municipality.
Learned advocate representing South Dum Dum Municipality
relies upon the affidavit-in-opposition filed by the Municipality wherein
it has been mentioned that the two storied building newly constructed
upon a part of the existing ground floor had already been demolished as
the same was an unauthorised construction.
It has been submitted that the complaint of unauthorised
construction was submitted by the petitioner for the first time in the
year 2018. The construction which was made during that relevant point
of time has been demolished by the Municipality but the old structure
which is in existence for a considerable period of time has been held not
to be an unauthorised one.
It has been fairly submitted that, admittedly, there is no plan for
making construction over the said plot of land but as the existing
structure with brick walls and tin shed is a pretty old one, the same has
not been considered as unauthorised construction because in the entire
colony there are several such structures which have been constructed
without obtaining any sanction plan from the Municipality.
Learned advocate representing the Municipality relies upon the
judgment delivered by the Hon'ble Supreme Court in Monnet Ispat and
Energy Limited vs. Union of India and Ors. reported in (2012) 11
SCC 1 paragraph nos. 197, 200 and 201 on the doctrine of desuetude
and submits that the site where the alleged unauthorised construction
has been made is a squatter's colony where the refugees from east
Pakistan have stayed for decades by making construction thereon. There
are several instances where construction has been made without
obtaining the sanction from the Municipality. This is not a solitary
instance of making construction without a sanction plan. The
Municipality never took any steps to demolish any construction
standing in the said colony area. As and when information is received by
the Municipality regarding any new unauthorised construction, the
Municipality takes immediate steps to deal with the same.
It has been submitted that on receipt of a complaint alleging
unauthorised construction being made by the private respondents,
appropriate steps were taken by the Municipality and being satisfied
that the construction was made recently without obtaining any sanction
plan, the Municipality has already demolished the same.
Learned advocate representing the private respondents submits
that the construction in question which was made in the year 2017-18
has already been demolished by the Municipality. The construction
which is presently standing at the site is more than fifty years old.
It has been submitted that the said structure was used as a
residential unit by their predecessor in interest and after the demise of
the predecessor in interest, the private respondents are utilising the
same as their residential unit.
It has been submitted that the private respondents do not have
any other alternative accommodation to stay and the said structure is
the only place where they are residing. If the said structure is
demolished, then the private respondents will be rendered homeless.
I have heard and considered the submissions made on behalf of
all the parties.
It appears from the said submissions and the documents annexed
to the writ petition that the matter relates to construction in a squatter's
colony over the land settled in favour of the settlers of the said colony by
the Refugee, Relief and Rehabilitation department.
There is an issue with regard to the title of the land where
allegation of unauthorised construction is made. A Title Suit in between
the parties praying for declaration of title is pending consideration
before the learned Court below.
The construction which the petitioner seeks demolition is in
existence for nearly fifty years, if not more. The parties have admitted
that the construction is in existence from nearly 1970.
The petitioner alleged for the first time on 2nd July, 2018 that the
private respondents 'started illegal unauthorised construction'. In the
said complaint the petitioner mentioned that the private respondents
forcefully took possession of the complainant's plot on 15th March, 1988
and she filed Title Suit, after eighteen years in the year 2008, praying
recovery of possession. The illegal occupier of the land started illegal
unauthorised construction on the said land over which they have no
legally enforceable right.
The complaint mentions that the construction was made in
contravention of the provision of the West Bengal Municipal Act, 1993
as amended and various other provision of law. The complaint
conveniently never mentions about the existing construction that was in
place for years together.
A bare perusal of the complaint reveals that the complainant was
more bothered about dispossession rather than the unauthorised
construction that has been made. Had the complainant any issue with
the existing construction, then certainly a line would have been
mentioned praying for demolition of the same. The complaint mentions
only about the construction which started in the year 2017-18. The
Municipality acceded to the complaint made by the petitioner and
ultimately demolished the new construction made thereon.
The petitioner is aggrieved by the conduct of the Municipality in
differentiating the construction over the said plot of land as that of 'new
construction' and the 'existing construction'. It has been strongly
contended that as there is no sanction plan either in favour of the old or
the new one, accordingly, the entire construction, irrespective of the fact
that it was in existence for quite some time, is required to be
demolished.
From the tenor of the argument made by the petitioner it appears
that the same has been advanced out of spite and vengeance. The
parties are fighting legal battles for quite some time challenging the title
of the said property. The petitioner claims that the land in question
where the construction has been made was settled in favour of her
predecessor in interest by registered deed of lease executed by the
Refugee, Relief and Rehabilitation department; whereas, the private
respondents claim that the said plot of land was allotted in favour of
their predecessor in interest by patta issued by the Government.
Though the issue of unauthorised construction does not directly
relate to the title of the property, but it seems that, in the present case
the same is a direct off shoot of the disputed title of the property. Had
the title of the property not been in dispute, the issue of unauthorised
construction possibly would not have arisen. The fact that the structure
is in existence for so many years and no complaint was advanced prior
to 2018 implies that unauthorised construction was never the issue but
as the petitioner is out of possession for so many years she desperately
intends to dispossess the private respondents from the said premises by
hook or by crook.
It has been submitted by the learned advocate representing the
Municipality that there are several unauthorised constructions in the
said squatter's colony but the complainant made specific complaint only
with regard to the construction made and possessed by the private
respondents. The same implies that the complaint has been lodged with
the sole intention of dispossessing the private respondents from the
house which has been constructed over the said premises. If the existing
construction is demolished, then the private respondents may be
rendered homeless. The agony and the helpless condition of the private
respondents would provide some mental satisfaction to the petitioner.
The Municipality conducted a physical inspection on site and took
note of the existing as well as the new construction that has been made
and has opined that the new construction was an unauthorised one and
liable to be demolished. The demolition work has been successfully
completed. As per the Municipality the existing construction may not be
treated as an unauthorised one.
The petitioner has not claimed that the existing structure is a new
one. The thrust of the argument is that irrespective of the fact that the
construction is old or new, since the same was built without obtaining a
sanction plan from the Municipality, the same ought not to stand for a
single day and is liable to be demolished at once. The said argument
leads to the unmistakeable conclusion that it is not the unauthorised
structure that is troubling the petitioner but the pinch lies somewhere
else. The petitioner's desire is that the building be razed to the ground
so that the private respondents are compelled to come down to the
streets.
The Court is of the opinion that the decision of the Municipality is
a very balanced and reasonable one. Had the Municipality held the
existing structure to be unauthorised, then several litigations may have
cropped up in future with similar allegations and counter allegations of
unauthorised constructions in the squatter's colony. The Municipality
quite consciously took the decision to demolish the new construction
that has been made, without disturbing the existing one.
It is true that an illegal construction never gets regularised or
legalised by passage of time, but the facts and circumstances under
which such construction was made, has to be kept in mind.
Unauthorised haphazard construction in squatter's colony by refugees is
a persistent problem and it is for the Municipality to find a solution to
deal the menace. Demolition of a structure in the said colony which is in
existence for decades along with other similar structures ought not to be
singled out for demolition, at the instance of a complainant who has a
vested interest in the said property.
Writ Court being a Court of equity ought not to enter and settle
personal scores between the parties. The dispute herein is out and out a
private one, with no public element involved. It is a circuitous way of
dispossessing the private respondents from the said property. Writ
Court is not the appropriate forum to adjudicate such issues. It will be
highly iniquitous to entertain such a prayer and exercise discretion in
the matter.
The ratio of desuetude will not be applicable in the facts and
circumstances of the present case as the two factors for its applicability,
namely, (i) the statute or legislation not being in operation for a
considerable period and (ii) the contrary practice has been followed over
a period of time are not satisfied in the present case.
In view of the discussions made herein above, the Court is of the
considered opinion that, in the facts and circumstances of the present
case the order of demolition impugned in the present writ application, is
not required to be interfered with.
It is made abundantly clear that the construction does not get
regularized in any manner whatsoever by dint of this judgment and it
will be open for the Municipality to take any steps to deal with the same,
in accordance with law.
The writ petition fails and is hereby dismissed. Application, if any,
stands disposed of.
No costs.
Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
