Calcutta High Court
Suresh Prasad Gupta vs Kolkata Municipal Corporation & ... on 31 August, 2023
OD-1
APOT/232/2023
with
WPO/1449/2023
IA NO:GA/1/2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SURESH PRASAD GUPTA
Vs.
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE APURBA SINHA RAY
Date : 31st August, 2023.
Appearance:
Mr. Arindam Banerjee, Advocate
Ms. Sinthia Bala, Advocate
....for appellants
Mr. Nilanjan Chatterjee, Advocate
Mr. Saurav Chaudhury, Advocate
...for KMC.
Mr. Abhiijit Ray, Advocate,
... for respondent no. 4.
The Court : By consent of the parties, the appeal and the
application are taken up for hearing together.
Being aggrieved by a judgment and order dated July 27, 2023,
whereby a learned single Judge of this Court disposed of the appellant's
writ petition, the writ petitioner has come up by way of this appeal
The appellant is the tenant of the first floor of premises no. 3A,
Ganguly Lane, Kolkata- 700 007. We are told that it is a G+4 storied
building. The respondent no. 4, viz., Alokesh Ganguly is the owner of
the entire building.
The writ petitioner approached the learned single Judge
challenging an engagement notice issued by Kolkata Municipal
Corporation (in short KMC) under sections 544 and 546 of the Kolkata
Municipal Corporation Act, 1980 (in short KMC Act), for execution of a
demolition order which appears have been passed by the concerned
Executive Engineer under Section 400(1) of the KMC Act. The writ
petitioner submitted before the learned Judge that he had no idea of
any proceedings having been initiated under Section 400(1) of the KMC
Act. He is not aware of any order that may have been passed in such
proceedings. He has been in occupation of the first floor of the building
in question for the past several years. His tenancy is not in dispute.
Suddenly he found that men from KMC reached the premises and tried
to demolish portion of the second floor of the building, i.e., the floor
immediately above the floor which he occupies. As a result of the
activities of the KMC people, certain portions of the ceiling of the writ
petitioner's floor collapsed. The writ petitioner approached the learned
Single Judge for quashing of the engagement notice issued under
Sections 544 and 546 of the KMC Act and also for an order restraining
the KMC authorities from carrying out any demolition activity without
serving a copy of the demolition order on the writ petitioner. He also
prayed for liberty to challenge the demolition order before the
appropriate forum.
The learned Judge enquired from the writ petitioner as to whether
he is responsible for the alleged unauthorised construction. The writ
petitioner answered in the negative. The learned Judge then enquired
of the respondent no.4 i.e., Alokesh, as to whether he was responsible
for the alleged illegal construction. Again the answer was in the
negative. The learned Judge thereafter disposed of the writ petition by
observing that since neither the writ petitioner nor the respondent no.4
is responsible for the unauthorised construction in question, they
cannot be aggrieved if such construction is demolished. The final
observation of the learned Single Judge is as follows:
"It appears from the submissions made on behalf of the
parties that neither the owner nor the occupiers/tenants, that
is, the petitioner herein, takes responsibility of the
construction that has been held to be unauthorised.
Accordingly, the men and agents of the Corporation shall take
steps to demolish the same by taking necessary precaution
so that the tenanted portion of the petitioner does not get
affected at the time of the execution of the work of
demolition."
Being aggrieved the writ petitioner is before us by way of this
appeal.
We had called for a report in the form of affidavit from KMC.
Such report has been filed. We had also permitted the respondent no.4
(Alokesh) to file an affidavit, which is on record.
From the annexures to KMC's affidavit it appears that a stop work
notice under Section 401 of the KMC Act, dated October 19, 2019, was
issued by KMC to one Ashok Ganguly asking him to stop all
construction works including addition and alteration at premises no.
3A, Ganguly Lane, i.e., the premises in question. Thereafter, we find an
intimation by KMC to the Officer-in-Charge of the jurisdictional police
station, dated October 19, 2019, intimating that stop work notice had
been issued and follow up action should be taken by the police. In the
said notice also, Ashok Ganguly has been mentioned as the person
responsible. Then we find a letter dated October 22, 2019, written by
the Sub-Assistant Engineer (Civil) Building, Borough-IV & V, KMC to
the Assistant Engineer (Civil), Borough-IV informing that on further
inspection it has been found that the person responsible continued
with the construction work in violation of the stop work notice. Again,
Ashok Ganguly was named as the person responsible. A further notice
dated October 22, 2019, issued by the Assistant Engineer (Civil),
Building Department, addressed to the Officer-in-Charge, Posta Police
Station is on record, wherein also Ashok Ganguly is named as the
person responsible. There are other documents which also mention
Ashok Ganguly as the person responsible but we need not advert to the
same.
Finally, we find that Annexure-R2 to KMC's affidavit is a
demolition order dated June 9, 2023, again addressed to Ashok
Ganguly. Nothing has been disclosed to demonstrate that in fact a
proper proceeding under Section 400(1) of the KMC Act was initiated.
From the affidavit filed by Alokesh, we find that a First
Information Report (FIR) was lodged by one Satadal Chaki, Assistant
Engineer (Civil), Building Department, Borough-IV & V, KMC on
October 13, 2019, against Ashok Ganguly describing him as the person
responsible. At page 10 of the said affidavit we find that a charge sheet
has been submitted on June 13, 2022, and the charged person is the
present appellant.
Learned advocate for the appellant says that all these fact would
indicate that something funny is going on. The appellant had never
made any unauthorised construction. He was not made aware of any
demolition proceeding. No demolition order was served on him. Show
cause notice under Section 400(1) does not appear to have been issued
to anybody. Similarly, there is nothing on record to show that notice of
hearing was issued to any concerned person. The FIR was not against
him but against one Ashok Ganguly. However, strangely, the charge-
sheet has been submitted against him. The appellant says that all he
wants is that he should get an opportunity of hearing before he is
condemned for something which he has never done.
Learned advocate for Alokesh strongly denies and disputes the
submission made on behalf of the appellant. He says that it is the
appellant who has made the unauthorised construction. Even if he has
not, he did not report to the landlord or to the appellant that somebody
else is making unauthorised construction. This appeal is not a bona
fide one. The appeal should be dismissed.
Learned Advocate for KMC has produced the records of the case
as we had directed. We have perused the records.
Having considered facts and circumstances of the case, the
undisputed facts which emerge are that the appellant is the occupant
of the first floor of the building in question. No notice of any demolition
proceeding, no show cause notice under Section 400(1) of the KMC Act
or notice of hearing under that section or any demolition order passed
under that Section was ever served on the appellant. It also appears
that if the demolition order that the KMC people sought to implement,
is actually carried out, the portion in occupation of the appellant will be
damaged. Although the learned Judge has taken care to observe that
implementation of the demolition order shall not damage the portion in
the appellant's occupation, that may not be practically or technically
feasible. We are of the view that the appellant deserves a hearing
before the Corporation authorities.
As regards the submission made on behalf of Alokesh that the
appellant has made the unauthorised construction we do not observe
anything on merits excepting that we wonder as to what the landlord
was doing if the appellant was raising unauthorised construction.
We set aside the order of demolition dated June 9, 2023. We
direct the Corporation to immediately initiate a fresh proceeding under
Section 400(1) of the KMC Act and issue notice to the appellant as well
as to the respondent no.4 and any other concerned person as the KMC
may deem necessary. Such proceeding shall be carried out to its logical
conclusion within eight weeks from date. Needless to say, all parties
concerned will be entitled to rely on documents as they may be advised.
All such documents will be exchanged between the parties so that one
party may not be taken by surprise by another party.
We do not bind the hands of the KMC authorities in any manner.
The authorities shall initiate and conclude the demolition proceeding in
accordance with law observing the principles of natural justice and will
take further action, if any, depending on the result of the demolition
proceeding.
We have not considered the merits of the case at all. We have not
gone into the question of whether or not there is unauthorised
construction and if there is unauthorised construction, then who is the
person responsible.
The order under appeal is set aside.
Accordingly, the appeal (APOT/232/2023) and the application (IA
No.GA/1/2023) stand disposed of.
Since we have not called for affidavits, the allegations contained
in the stay petition are deemed not to have been admitted by the
respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
dg/
