Wakil Ahmed & Anr vs The Kolkata Municipal ...
2022 Latest Caselaw 6850 Cal

22.09.2022
 Item No.15
Court No.6.
    S. De
                              M.A.T. 1559 of 2022
                                       with
                              I.A. No. CAN/1/2022

                            Wakil Ahmed & Anr.
                                    Vs
                  The Kolkata Municipal Corporation & Ors.


                    Mr. Subhrangsu Panda,
                    Mr. Tirthankar Mukherjee,
                    Ms. Madhurima Sarkar,
                    Mr. Munshi Asqiq Elahi,
                    Ms. Sucheta Pal,
                                      ...for the appellants.
                    Mr. Tarique Quasimuddin,
                    Mrs. Zainab Tahur,
                                      ...for the respondent no.8.

Mrs. Koyeli Bhattacharyya, Ms. Iva Bhattacharyya, ...for the K.M.C.

By consent of the parties, the appeal and the

connected application are taken up together for

hearing.

Affidavit-of-service filed in Court be kept with

the records.

A judgment and order dated September 16, 2022

whereby the writ petition of the appellants being

W.P.A. 20954 of 2022 was dismissed, is the subject

matter of challenge in this appeal.

Admittedly, the appellants have made a G+3

storied construction without obtaining any sanctioned

plan from the Kolkata Municipal Corporation (K.M.C.).

We say admittedly, because before the learned Single

Judge the appellants admitted this fact.

A stop work notice was issued under Section

400(1) of the Kolkata Municipal Corporation Act on the

complaint made by the private respondent in this

appeal. Subsequently, self demolition orders were

issued to the appellants. Upon their failure to comply

with such order, notice under Sections 554 and 546 of

the Kolkata Municipal Corporation Act has been

issued to them.

Before the learned single Judge the appellants

took various pleas including that the order of the

demolition was never served upon them. Hence, they

could not challenge such order before the appellate

forum.

The learned Single Judge considered all

submissions made on behalf of the parties and

deprecated the making of constructions without

obtaining sanction from the Corporation. In our view,

the learned Judge rightly deprecated such conduct.

Persons who make constructions without obtaining

necessary permission from Kolkata Municipal

Corporation should be dealt with sternly.

We do not find any apparent infirmity in the

order under appeal.

However, learned advocate for the appellants

says that there are provisions which permit

regularization of a construction which has been made

without obtaining prior sanction from the permission

granting authority. He further says that there is a

provision for statutory appeal. On humanitarian

grounds, a little time should be granted to the

appellants to approach the appellate forum with a

statutory appeal for whatever it is worth.

Purely on humanitarian grounds, and this will

not be treated as a precedent, we direct the

Corporation to stay its hands for a period of six weeks

from date. In the mean time the appellants will be at

liberty to approach the appellate authority within a

week from date. If so approached, the appellate

authority which is the Municipal Building Tribunal

shall allow the appellants to file the appeal even

without certified copy of the order of demolition. The

appellants will be entitled to pray for interim relief

before the Tribunal and such prayer shall be decided

by the Tribunal in accordance with law. The Tribunal

shall decide the appeal in accordance with applicable

rules as expeditiously as possible and preferably

within a period of three months from the date of filing

of the appeal. If the appeal is not filed within a week

from date, this order shall automatically stand

dismissed. The Tribunal shall give opportunity of

hearing to all concerned parties including the private

respondent in this appeal. We make it clear that the

Tribunal shall take a decision without being influenced

by any observation made in this order. We have not

gone into the merits of the appellants' case.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondents.

M.A.T. 1559 of 2022 is, accordingly, disposed of

along with the application being I.A. No. CAN 1 of

2022.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)