Soumen Das & Anr vs Municipal Commissioner & Ors
2022 Latest Caselaw 1673 Cal/2

                                    1


OD-2

                          I.A./GA 2 OF 2021
                           APOT/151/2021
                                  With
                          WPO 1117 OF 2016
                  IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                            ORIGINAL SIDE
                               -------------

SOUMEN DAS & ANR VS MUNICIPAL COMMISSIONER & ORS

BEFORE:

The Hon'ble JUSTICE ARIJIT BANERJEE The Hon'ble JUSTICE SUBHENDU SAMANTA Date : 9TH JUNE, 2022.

Appearance:

Mr. Gopal Ghosh, Advocate Ms.Kuhu Roy,Advocate ....for appellant/petitioner.

Mr.Barin Banerjee,Advocate Mr.S.K.Debnath, Advocate Mr.D.Mondal,Advocate ....for KMC.

THE COURT: This appeal is directed against a

judgment and order dated February 27, 2020 whereby WP 1117 of 2016

was dismissed by the learned single Judge.

The writ petitioners had challenged by way of an appeal before the

Municipal Building Tribunal, an order dated October 8, 2002 passed by

the Special Officer (Building), CMC in Demolition Case No.84-D/2001-

02,Br.III, whereby the writ petitioners were directed to demolish certain

unauthorized constructions.

The point urged by the writ petitioners before the Tribunal

essentially was that certain structures which had been allowed to be

retained upon payment of applicable fees in an earlier Demolition Case,

have been included again in the present Demolition Case.

The Tribunal dismissed the appeal being B.T.Appeal No.10 of 2003,

negating the contention of the writ petitioners. This order of the Tribunal

was under challenge before the learned single Judge.

The learned single Judge in the impugned order observed, inter

alia, as follows :-

"I have perused the petition and the pleadings filed on behalf of the

parties. I have also considered the case of the petitioners and the

respondents. On a perusal of the impugned order, I find that the

same has been passed upon hearing both the parties and

considering the relevant facts and circumstances of the instant case.

The impugned order is a reasoned order and considers the entire

case of the petitioners. There is no procedural impropriety alleged on

behalf of the petitioners nor is there any other infirmity which the

petitioners have been able to demonstrate warranting any

interference with the impugned order. It is the categorical finding of

the Appellate Authority that the petitioners have carried out

constructions subsequent to the revised sanction plan prepared in

compliance with the earlier order dated 19th December, 1997 which

was passed in the earlier demolition case, being No.14-D/97-98. It

is further alleged by the respondent Corporation that the petitioners

have violated the undertaking which had been furnished by the

petitioners in terms of the earlier order. The petitioners were

categorically directed by the earlier order not to carry out any

construction in violation of the undertaking which they had given on

the earlier occasion. There is a clear finding by the Chairman in the

impugned order that the petitioners have carried out further

construction without the permission of the Kolkata Municipal

Corporation. The impugned order also records that the height of the

wooden floor was raised contrary to the revised plan sanctioned on

the strength of the earlier order dated 19th December, 1997. There is

also a clear finding that the cubicals on the mezzanine floor which

have been prepared are also in violation of the Kolkata Municipal

Corporation Building Rules. The impugned order also records that

the mandatory open space has been constructed upon which is in

serious violation of the Kolkata Municipal Corporation Rules 56 and

57."

Having observed as above, the learned Judge concluded that the

writ petitioners have not been able to substantiate any ground

warranting interference with the Tribunal's order. Accordingly, the writ

petition was dismissed.

We have heard learned counsel for the parties. The point that was

urged by the writ petitioners before the Tribunal as also before the

learned single Judge and which has also been argued before us is one of

disputed facts. Whether or not, structures which were permitted to be

retained in an earlier Demolition Case have been included in the present

Demolition Case, is a pure question of fact. The Special Officer (Building),

CMC has found against the writ petitioner. The Tribunal, in appeal, has

also found against the writ petitioners. The learned Judge, in our view,

correctly refused to interfere with such factual findings in exercise of writ

jurisdiction.

In view of the aforesaid, we see no reason to interfere with the

order impugned. The appeal and the application are dismissed.

This order, however, will not prevent the appellants from availing of

any other remedy that they may be entitled to in law including filing a

civil suit.

(ARIJIT BANERJEE, J)

(SUBHENDU SAMANTA, J.)

ssaha AR(CR)