Nasir Ali & Others vs Sk. Imran & Others
2023 Latest Caselaw 4846 Cal

08.08.2023
Item No.2.
Court No.6.
   AB
                               M.A.T. 1386 of 2023
                                       With
                                I A CAN 1 of 2023

                                Nasir Ali & Others
                                        Vs
                               Sk. Imran & Others

                    Mr. Tanmoy Mukherjee,
                    Mr. Souvik Das,
                    Mr. Rudranil Das,
                    Ms. Utsa Dutta        ...for the Appellants.

                    Mr. Sandipan Banerjee,
                    Mr. Ankit Sureka,
                    Mr. Sobhan Majumdar ...for the HMC.

                    Mr. Ujjwal Ray           ....for the Respondents/

Writ Petitioners.

By consent of the parties, the appeal and the

connected application are taken up for hearing

together.

An order dated June 20, 2023, passed in WPA

8819 of 2016, being a writ petition filed by the

respondent nos.1 to 3 herein, is under challenge in

this appeal, at the instance of the private respondents

in the writ petition. The writ petition is still pending

before the learned Single Judge and has been made

returnable on August 22, 2023.

In an earlier round of litigation, one Nikhat

Parveen had approached the learned Single Judge by

filing W.P. No.29605 (W) of 2014 alleging that the

present appellants had raised unauthorized

construction. The grievance of the writ petitioner in

that writ petition was that he had made a

representation dated October 28, 2014, to the Mayor,

Howrah Municipal Corporation. However, such

representation was kept pending.

A learned Single Judge, by a judgment and order

dated April 27, 2015, disposed of the writ petition with

the following direction:

"In such view of it, there is no point in keeping the writ petition pending. The writ petition is disposed of by directing the Mayor, Howrah Municipal Corporation, i.e. the respondent no.3 herein, to consider and dispose of the representation dated October 28, 2014 within a period of six weeks from the date of communication of the order after giving the petitioner as well as the private respondents and any other person or persons as he may think it necessary, an opportunity of being heard. He shall also communicate the decision to the petitioner within a week after it is taken. In case, he find that the grievance of the petitioner is genuine he shall also pass necessary and consequential orders."

It appears that instead of the Mayor of the

Corporation considering the representation and

passing an order, the Law Officer of the Corporation

heard the parties and passed an order dated

September 30, 2015, calling upon the present

appellants to demolish certain unauthorized

constructions.

Nothing happened for some time thereafter.

In 2016, the present writ petitioners approached

the learned Single Judge by filing WPA 8819 of 2016

alleging non-implementation of the aforesaid

demolition order. The learned Single Judge, by the

order impugned, has in effect directed implementation

of the demolition order and has directed the concerned

Police Authority to provide adequate police help for

that purpose. Being aggrieved, the private respondents

in the writ petition have come up by way of this

appeal.

We have heard learned Counsel for the parties.

Learned Advocate for the appellants says that the

order dated April 27, 2015, passed by a learned Single

Judge in W. P. No.29605 (W) of 2014 required the

Mayor of the Howrah Municipal Corporation to

consider and dispose of the writ petitioners'

representation. However, the Law Officer of the

Corporation heard the parties and passed a demolition

order. This is not in compliance with the Court's

earlier order. Learned Advocate further submitted that

the Law Officer had no authority to pass the

demolition order.

Mr. Banerjee, learned Advocate appearing for the

Corporation, in his usual fairness, has left the matter

to the Court. Mr. Roy, learned Advocate appearing for

the writ petitioners, has also done the same.

We agree with Mr. Mukherjee, learned Advocate

for the appellants, to the extent that the Mayor of the

Corporation having been directed to dispose of the

concerned representation, the Law Officer had no

business to dispose of the representation by passing a

demolition order. The Mayor himself was obliged to

dispose of the representation. Courts' orders must be

strictly complied with. In the event the Mayor, upon

application of mind, found that there was

unauthorized construction, which required demolition

but was of the opinion that only the Commissioner or

his delegate can issue demolition order, the Mayor

should have sent his finding to the Commissioner for

issuance of demolition order. Under Section 28 of the

Howrah Municipal Corporation Act, 1980, the Mayor

can delegate his powers or functions only to the

Deputy Mayor or to the Commissioner and not to any

other officer or employee of the Corporation. However,

in the instant case, since the Court specifically

directed the Mayor to take a decision, there was no

scope for delegation also. The demolition order passed

by the Law Officer is clearly without jurisdiction and

non est in the eye of law.

However, learned Advocate for the Corporation

tells us that at least on 14 dates, demolition activities

have been carried out. Substantial portion of the

unauthorized construction has been demolished.

Be that as it may, no further effect can be given

to the Law Officer's order dated September 30, 2015.

The same is set aside.

The Commissioner of Howrah Municipal

Corporation or his delegate is directed to revisit the

issue of alleged unauthorized construction having

been made by the appellants herein and pass a fresh

order, in accordance with law, as expeditiously as

possible, after giving an opportunity of hearing to any

one of the appellants or their authorized representative

as also any one of the writ petitioners herein or their

authorized representative. If the Commissioner or his

delegate finds that in fact the impugned construction

is unauthorized, the same shall be dealt with

appropriately in accordance with law.

Mr. Mukherjee, learned Advocate for the

appellants says that substantial portion of the

property of the appellants has been demolished by

implementing an illegal order and/or an order without

jurisdiction and the appellants should be compensated

by way of costs/damages by the respondents. This is

not the appropriate forum for the appellants to make

such claim. If the appellants are entitled to approach

any other forum in accordance with law for such

purpose, they will be at liberty to do so.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

MAT 1386 of 2023 stands disposed of along with

IA CAN 1 of 2023.

Learned Advocate for the parties say that no

useful purpose will be served by keeping the writ

petition pending. The writ petition being WPA 8819 of

2016 is disposed of, treating the same as on day's list.

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.)