Sagir Ahmed & Anr vs The Kolkata Municipal ...
2023 Latest Caselaw 4766 Cal

04.08.2023
Item No.4.
Court No.6.
   AB
                                      M.A.T. 912 of 2023
                                             With
                                      I A CAN 1 of 2023

                             Sagir Ahmed & Anr.
                                     Vs
                 The Kolkata Municipal Corporation & Others

                     Mr. Masud Karim                 ...for the Appellants.

                     Mr. Gopal Das,
                     Ms. Susmita Chatterjee ...for the KMC.


                     By consent of the parties, the appeal and the

              connected application are              taken up for      hearing

              together.

                     A judgment and order dated May 10, 2023,

              whereby the appellants' writ petition being WPA 10938

              of 2023 was dismissed by a learned Single Judge of

              this Court, is the subject matter of challenge in this

              appeal.

                     It appears that the appellants/writ petitioners

              made construction in deviation from the building plan

              that   was       sanctioned    by    the     Kolkata   Municipal

              Corporation. Demolition proceedings were initiated.

              An order of demolition dated February 17, 2023, was

              passed      by     the     Executive       Engineer(C)/Building,

              Borough -IX, under Section 400(1) of the Kolkata

              Municipal Corporation Act, 1980.

                     Thereafter, a notice dated March 18, 2023, was

              issued    by      the    Executive     Engineer    (C)/Building,
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Borough -IX, under Sections 544/546 of the KMC Act,

1980, requiring the appellants to vacate the premises

in question so that the unauthorized portion could be

demolished. Challenging such notice, the appellants

approached the learned Single Judge by way of the

instant writ petition. The learned Judge dismissed the

writ petition with the following observations:

             "It has been submitted that on the scheduled date
       i.e. March 30, 2023, the demolition programme did not
       take place and the next date of demolition was fixed on
       May 8, 2023. It has been submitted that on May 8, 2023
       partial demolition did take place. The petitioner prays for
       stay of further demolition proceeding.
             Learned     advocate    representing      the   Kolkata
       Municipal   Corporation   admits   that   the   unauthorized
       portions have already been demolished.
             Upon hearing the parties it appears that the
       demolition programme has already concluded.
             At this stage, there is no scope for entertaining the
       writ petition. The same stands dismissed."



      Being aggrieved, the writ petitioners are before

us by way of the present appeal.

      Learned Advocate for the appellants says that

the engagement notice under Sections 544/546 of the

KMC Act, 1980, was issued by a person, who did not

have the authority to issue such notice. To our query

as to whether the demolition order has been assailed

by the appellants before any forum, learned Advocate

says that he has no instructions on that score. Hence,

we have to proceed on the basis that there is no

challenge to the demolition notice or in any event,
                                  3




there is no order staying operation of the demolition

notice.

       If that be so, nothing stood in the way of Kolkata

Municipal Corporation in executing the demolition

notice and to that end, the notice under Sections 544/

546 of the KMC Act, 1980, was issued. We are unable

to appreciate as to why the Executive Engineer (C)/

Building, Borough -IX was not competent to issue

such notice. The demolition order was passed by that

person obviously being a delegate of the Municipal

Commissioner. We are unable to agree with the

learned      Advocate     for    the   appellants    that   the

engagement notice was issued by a person not having

authority to do so.

       In any event, a submission was made on behalf

of the Corporation before the learned Single Judge, as

recorded by Her Ladyship, that the unauthorized

portion of the building in question has been removed

already. If that be so, no further action from the end of

the Corporation would be required.

       However, in the event such instruction of

learned Advocate for the Corporation was incorrect

and unauthorized portion of the building in question

has not been entirely demolished, the Corporation

should    complete      demolition     of   the   unauthorized

portion at the earliest, without affecting the portion

that   has    been      raised   in    accordance    with   the

sanctioned plan. This is obviously subject to any
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competent forum staying operation of the demolition

order.

          Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

MAT 912 of 2023 stands disposed of along with

IA CAN 1 of 2023.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)