Calcutta High Court (Appellete Side)
Sri Kali Prasad Shaw vs The Board Of Councilors on 28 July, 2022
81 28.07.
AG 2022
M/R
KB C.O. 1964 of 2022
Ct
Sri Kali Prasad Shaw
Vs
The Board of Councilors
of Baranagar Municipality & Anr
Mr. Aniruddha Chatterjee,
Mr. Debabrata Roy,
... For the petitioner.
Mr. Jahar Chakraborty,
Ms. Mitali Bhattacharya,
... for the opposite parties.
The judgment dated 30th June, 2022 passed by
Civil Judge (Junior Division), Bidhannagar in
Municipality Appeal No. 2 of 2018 dismissing the appeal
is under challenge in this revisional application under
Article 227 of Constitution of India.
Mr. Aniruddha Chatterjee, learned advocate
appearing for the petitioner submits that when the order
of demolition was passed, pursuant to a resolution
being adopted by the Board of Councilors, dated 11t h
June, 2018, none of the parties including the petitioner
was present.
The order of demolition was challenged preferring
an appeal being Municipality Appeal No. 2 of 2018. In
the appeal, an application under Order 41 Rule 27 of
the CPC was filed intending to adduce additional
evidence in respect of sanctioned plan read some
relevant documents to establish that there has been no
alleged unauthorised construction.
Mr. Chatterjee further submits that three sides of
the building have been condoned, though there has
been allegation of illegal construction to have been
carried out deviating the sanctioned plan. It is also
contended that the officer issuing demolition order is
not authorised to pass any order of demolition.
Mr. Chatterjee strenuously argues that three
sides of the building having been condoned, the order of
demolition should not be given effect to. The rejection of
a prayer under Order 41 Rule 27 of the CPC, is not
according to law, Mr. Chatterjee contends.
In this case, the Baranagar Municipality/
opposite party no. 1 though made party, is not present
today, as there has been no service effected by the
petitioner in the meantime.
The caveator/opposite party no. 2 is present.
Mr. Jahar Chakraborty, learned advocate
representing catveator/opposite party no. 2 supporting
the order of the appellate body submits that when the
appellate body in exercise of its discretion is of the view
that there is no need to take any additional evidence, for
the availability of the sufficient documents, such
exercise of discretion being lawfully made should not be
disturbed by this Court.
Learned advocate for the caveator/opposite party
no. 2 also submits that the question is whether there
has been unauthorised construction or not, and which
cannot be condoned merely upon production a
sanctioned plan, and it is simply intended to cause
delay putting a stumbling block against the exercise of
demolition process.
The arguable point thus raised in this case needs
to be addressed giving a hearing for the purpose.
When there has been a notice issued by the
Baranagar Municipality, dated 25th July, 2022
scheduling 29th July, 2022 for demolition of the alleged
unauthorised construction, the same needs to be stalled
at least for a limited period of time, till the end of
August, 2022.
In the meantime, there should not be any exercise
undertaken to give effect to the demolition process
issued by Baranagar Municipality /opposite party no. 1
vide Memo No. PW/323/1 dated 25th July, 2022.
Service of this application be effected upon
opposite party no. 1/Baranagar Municipality by speed
post with AD and furnish affidavit-of-service on the next
returnable date.
The opposition in the form of affidavit, if any, may
be filed by the opposite no. 2/caveator within the first
week of August 2022. Reply, if there be any, within one
week thereafter.
Matter to appear in the list under the heading
'Hearing' in the third week of August, 2022.
All parties shall act in terms of copy of this order
downloaded from the official website of this Court.
Urgent certified photostat copy of this order, if
applied for, be given to the parties as expeditiously as
possible on compliance of all necessary formalities.
(Subhasis Dasgupta, J)
