Barun Das vs The Kolkata Municipal ...
2022 Latest Caselaw 2528 Cal

   D/L
Item No. 9
05.05.2022
 KOLE
                              MAT 368 of 2021
                                   With
                            IA No. CAN 1 of 2021
                                  With
                            IA No. CAN 2 of 2021
                                  With
                            IA No. CAN 3 of 2021

                             Barun Das
                                -Vs.-
                The Kolkata Municipal Corporation & Ors.


             Mr. Jaydip Banerjee,
                                                         ... for the appellant.

             Mr. Ranajit Chatterjee,
             Mr. G. Ch. Das,
                                                               ... for the KMC.

             Mr. Mr. Raja Saha,
             Mr. A. Kr. Ghosh,
                                                               ... for the State.

             Mr. Kaushik Dey,
             Mr. S. Mishra,
                                         ... for the respondent nos. 7 and 8.

By consent of the parties the appeal and the

application are taken up for hearing together.

The added respondent in the writ petition, one Barun

Das, has filed this appeal against the judgment and order

dated March 3, 2021, whereby WPA 9873 of 2020 was

disposed of by the learned Single Judge.

The writ petitioner approached the learned Single

Judge with the grievance that the private respondents were

constructing 4th and 5th floor in a building unauthorizedly

when the sanction was only for construction of G+3 building.

The present appellant was not initially added as a party to

the writ petition. He made an application for being added

as party saying that he is a tenant of a portion of the 5th floor

of the building in question. He has paid considerable sums

of money to the owners of the building and is continuing to

pay monthly rent. He will be seriously affected if any

adverse order is passed directing demolition of the 5th floor.

The learned Single Judge added him as a party respondent.

The learned Judge proceeded to hear all the

concerned parties. The learned Judge noted that the present

appellant had filed a suit in the City Civil Court at Calcutta

impleading the private respondents in the writ petition and

KMC as defendants and he has obtained an interim order

restraining the Corporation from taking any adverse steps in

respect of the alleged unauthorized construction in the

building in question. The learned Judge directed the

Corporation to demolish the 4th and 5th floors of the

concerned building since there was no sanctioned plan for

such construction, overriding the injunction order of the City

Civil Court. Being aggrieved the added respondent, Barun

Das, has come up in appeal before us.

We have heard learned Counsel for the parties. We

are of the opinion that this matter may be referred to the

Competent Authority who may hear all the concerned parties

and take a reasoned decision in the matter.

Accordingly, the Executive Engineer (Building),

Borough-IV is directed to issue notices to the writ petitioner,

the private respondents, the present appellant and any other

concerned person under Section 401 of the Kolkata

Municipal Corporation Act. The said officer of the

Corporation shall give full opportunity of hearing to all the

concerned parties and permit them to produce necessary

documents before him. The said officer shall take a decision

in accordance with law as regards whether there is or is not

unauthorized construction in the building in question and if

so, to what extent. The officer will also consider if

regularization of unauthorized construction is possible upon

payment of requisite fees. However, we pass no mandate in

that regard and it will be up to the Executive Engineer

(Building) to take a decision. In case unauthorized

construction is found which is incapable of being

regularized, consequential action will be taken by the

Corporation.

We have not gone into the merits of the matter. We

leave it to the aforesaid officer of the Corporation to take a

reasoned decision in the matter. In the event the decision is

adverse to the owners or the present appellant, the same

shall not be given effect to for a period of four weeks from

the date of the decision.

Needless to say, till the Executive Engineer (Building)

completes the exercise indicated above, which should be

completed within twelve weeks from the date of

communication of this order, no coercive measures will be

taken by the Corporation in respect of the building in

question.

The order under appeal is set aside.

The appeal and the connected applications are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Arijit Banerjee, J.)

(Kausik Chanda, J.)