Calcutta High Court (Appellete Side)
Zulfequar Ali vs The Kolkata Municipal ... on 9 August, 2023
03. 09.08.2023
Court No.6
Tanmoy Ghosh
MAT 876 of 2023
Zulfequar Ali
-Versus-
The Kolkata Municipal Corporation & Ors.
With
IA No: CAN/1/2023
Mr. Mansoor Alam, Adv.
...for the appellant/
writ petitioner.
Mr. Dilip Chatterjee, Adv.,
Mr. Mihir Kundu, Adv.,
Ms. Manisha Nath, Adv.
...for the Kolkata Municipal
Corporation.
Affidavit of service filed in Court today be kept with
the records.
By consent of the appearing parties, the appeal and
the connected application are taken up together for
hearing.
A judgment and order dated April 4, 2023, whereby
the appellant's writ petition being WPA 25820 of 2022
was disposed of by a learned Single Judge of this Court,
is under challenge in this appeal at the instance of the
writ petitioner.
The appellant/writ petitioner approached the
learned Single Judge with the case that unauthorized
construction has been put up at premises no. 1/4/1D,
Jiban Krishna Ghosh Road, Kolkata - 700037.
2
The learned Judge noted that a demolition case had
been initiated in respect of certain portions of the
building at the concerned premises in the year 1975-76.
An order was passed by the Special Officer (Buildings) I
on August 19, 1983 for demolition of the first floor of the
said building.
The grievance of the writ petitioner is that the order
of demolition has not yet been implemented. A
representation dated November 4, 2022, has been made
by the writ petitioner, addressed to the Municipal
Commissioner, the D.G. Building and the Executive
Engineer Building Department, Borough-I, Kolkata
Municipal Corporation. However, such representation
has not yet been considered. The writ petitioner further
alleged that the unauthorized portion of the concerned
premises is being used for commercial purpose without
requisite permission having been obtained in that regard
from the Corporation Authorities.
The learned Judge disposed of the writ petition with
the following observations and directions:-
"There is nothing on record to suggest that in the
interregnum, that is, after the passing of the order in 1983 till
the filing of the representation in November 2022, the petitioner
took any step for implementing the order of demolition.
The Executive Engineer (Civil) of the concerned authority
has forwarded instruction that the premises was inspected and
it was found that there is an existing two storied old brick built
building with tin shed supported by bamboo structure at the
subject premises. The age of the building is more than forty
years and no new construction has been found.
3
The petitioner has not been able to show that any new
construction has been made which is not in accordance with the
Municipal Building laws.
The alleged unauthorised construction is in existence
from 1973-74.
At this stage it will not be proper to direct the Corporation
to initiate any proceeding for demolition of the unauthorised
construction in respect of a two storied brick built tin shed
structure constructed approximately forty years back.
As regards use of the premises for commercial purpose
without obtaining any permission, it will be open for the
petitioner to raise appropriate objection before the concerned
authority.
In the event such representation is filed, the same shall
be taken up for consideration by the concerned authority in
accordance with law after giving reasonable opportunity of
hearing to all the necessary parties ."
Being aggrieved, the writ petitioner is before us by
way of this appeal.
We have heard learned Counsel for the appellant as
well as learned Counsel for the Corporation. From the
affidavit of service filed in Court today, we find that the
private respondent has been served but he has chosen
not to appear.
The learned Judge was justified in observing that
the appellant/writ petitioner or his predecessor-in-
interest slept tight over the matter from 1973-74, when
the alleged unauthorized construction was made.
However, we are unable to agree with the learned Single
Judge that only because considerable time has passed
since the alleged unauthorized construction was made,
no action should be taken against the same. An illegal
construction cannot become legal merely by passage of
time, however lengthy the time period be. The
Corporation's own Officer passed a demolition order. It
was found that the entire structure is unauthorized.
However, considering the facts and circumstances of the
case, the Special Officer (Building) directed demolition of
only the first floor along with the staircase and permitted
retention of the remaining portion upon payment of
applicable charges. To our mind, the Corporation ought
to have implemented its own demolition order without
any delay at all.
However, it appears that 40 years have passed by
after the demolition order was passed and the order
remains on paper only. It has not been executed.
Learned Advocate for the Corporation says that he
has no instruction as to why the order could not be
implemented. He has no instructions if there were
restraint orders of any competent forum in that regard.
The case is 50 years old. It may not be possible to trace
out all necessary documents.
We appreciate the practical difficulty. This difficulty
could have been avoided had the writ petitioner or his
predecessor been more diligent in the matter of
approaching Court for implementation of the demolition
order.
Be that as it may, a representation has been made
by the appellant/writ petitioner to the Corporation, as
indicated above. In the representation dated November
4, 2022, the writ petitioner/appellant herein has
expressed his apprehension that the unauthorized
structure may be in such a condition so as to pose a real
threat to the safety and security of the people in
occupation thereof or the people in its vicinity. We are of
the considered opinion that the Corporation should
apply its mind and consider such representation and
take a decision thereon. After all, it is the statutory duty
of the Corporation to ensure that illegal/unauthorized
buildings/structures are removed in public interest. It is
also the duty of the Corporation to ensure that if for
unavoidable reasons, an unauthorized construction
cannot be demolished, the same is at least in a condition
so as not to jeopardize the safety and security of people
in or around such construction. The Corporation should
revisit the issue of the impugned construction being an
unauthorized one. An appropriate reasoned decision
should be taken by the Corporation in the matter, after
granting an opportunity of hearing to the appellant
herein, the private respondent and the occupiers of the
premises in question or their authorized representatives.
Let the entire exercise be completed within eight weeks
from the date of communication of this order by the
appellant to the respondent no.4, being the Executive
Engineer (Building), Borough-I, Kolkata Municipal
Corporation. The respondent no.4 shall take an informed
and reasoned decision in the matter, in accordance with
law, keeping public interest in mind.
The order of the learned Single Judge stands
modified to the above extent.
Since we have not called for affidavits, the
allegations in the stay petition shall be deemed not to
have been admitted by the respondents.
The appeal being MAT 876 of 2023 and the
connected application being IA No: CAN/1/2023 are
accordingly disposed of.
Let urgent photostat certified copy of this order, if
applied for, be made available to the parties upon
compliance with all requisite formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
