Calcutta High Court
Sabita Sarkar & Anr vs Kolkata Municipal Corporation & ... on 12 April, 2023
OD-1
APOT/97/2023
with
WPO/823/2023
IA NO:GA/1/2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
SABITA SARKAR & ANR.
-Versus-
KOLKATA MUNICIPAL CORPORATION & ORS.
Appearance:
Mr. R. Chakraborty, Advocate,
Mr. Bratin Kumar Das, Advocate
Ms. Anjana Banerjee, Advocate
...for the Appellants
Mr. Gurudas Mitra, Advocate,
Mr. Ziaur Rahaman, Advocate
...For KMC
Mr. Partha Pratim Roy, Advocate
Mr. D. Banerjee, Advocate
...for respondent no.6
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE APURBA SINHA RAY
Date: April 12, 2023.
THE COURT: A judgment and order dated April 10, 2023
whereby the writ petition of the appellants being WPO/823/2023 was
dismissed, is the subject matter of challenge in this appeal.
It appears that a demolition order was issued by the Kolkata
Municipal Corporation on the basis of a complaint lodged by the private
respondent herein, under Section 400(1) of the Kolkata Municipal
Corporation Act, 1980 (for short, "KMC Act") against the appellants
herein. The demolition order was passed on January 20, 2023.
The appellants herein have challenged such demolition order
before the Municipal Building Tribunal being BT Appeal No.35 of 2023.
The appeal is pending.
During the pendency of the statutory appeal, KMC issued a
notice dated March 21, 2023 under Sections 544 and 546 of the KMC
Act. The said sections basically pertain to the Corporation requiring the
occupants to vacate the premises so that the Corporation can implement
the demolition order.
The appellants herein approached the learned Single Judge
challenging the said notice dated March 21, 2023.
The learned Judge dismissed the writ petition. The learned
Judge observed that the writ petitioners did not bring to the knowledge of
the Tribunal that a notice had been issued by KMC under Sections 544
and 546 of the KMC Act during the pendency of the statutory appeal. The
learned Judge further observed that KMC had merely followed the
Court's order passed in a contempt application for implementation of the
demolition order. In aid of that, notice under sections 544 and 546 was
issued. The learned Judge concluded that no relief can be granted to the
writ petitioner. Hence, this appeal.
We have heard learned counsel for the parties. Statute gives a
right to the owner or occupant of a property to challenge an order of
demolition before the Municipal Building Tribunal. The appellants herein
are undisputedly occupants of the impugned building. They have
exercised their right to challenge the demolition order before the
Tribunal. Their appeal may or may not have any merit. That has to be
decided by the Tribunal. In our view, in all fairness, till the Tribunal
decides the appeal, no coercive steps should be taken against the
impugned construction. We are persuaded to grant this interim relief
since we have noted that the appellants did not sleep over their statutory
right and approached the Tribunal soon after the demolition order was
passed.
Accordingly, we direct the Municipal Building Tribunal to
dispose of BT Appeal No.35 of 2023 along with any connected application
that may have been filed, by the end of this month, i.e., April 30, 2023.
For this purpose, Executive Engineer (Building), Borough - III, is directed
to forthwith and in any event within a period of five days from the date of
communication of this order to him, transmit the records of the case to
the Tribunal. We are told that the next hearing has been fixed by the
Tribunal on April 18, 2023. All the parties shall appear before the
Tribunal on that date. No further notice is required. The Tribunal shall
not grant unnecessary adjournment and shall spare no effort to ensure
that the appeal and the connected application are disposed of on merit
after hearing all concerned parties by the end of this month.
Till pronouncement of the order by the Tribunal, no coercive
steps shall be taken by the respondents herein in respect of the
impugned construction. After disposing of the appeal, the Tribunal shall
forthwith send back the records of the case to the concerned department
in KMC.
Till disposal of the appeal by the Tribunal, the appellants shall
make no further construction in the premises in question.
The Officer-in-Charge, Beliaghata Police Station is directed to
ensure that no further construction is made by the appellants at the site
in question. The appellants shall also not create any third party interest
or put anybody in possession of the concerned premises till disposal of
the appeal by the Tribunal.
The order under appeal is set aside.
Both the appeal and the connected application are disposed of
accordingly.
Since we have not called for any affidavits, allegations made in the
stay application are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
dg/
