Swami Santadas Institute Of ... vs The Kolkata Municipal ...
2023 Latest Caselaw 5270 Cal

   D/L
Item No. 22
18.08.2023
 KOLE
                                 MAT 1166 of 2022

                Swami Santadas Institute of Culture & Ors.
                                 -Vs.-
                 The Kolkata Municipal Corporation & Ors.


              Mr. Raghunath Chakraborty,
              Mr. Bratin Kumar Dey,
              Ms. Anjana Banerjee,,
                                                         ... for the appellant.

              Mr. Alok Kr. Ghosh,
              Mr. Swapan Ke. Debnath,
                                                             ... for the KMC.

              Mr. Sanjoy Bose,
              Mr. S. Dey,
              Mr. S. Basak,
                                              ... for the private respondents.

A judgment and order dated July 20, 2022, whereby

the writ petition of the appellants being WPA 5763 of 2016

was dismissed by a learned Single Judge of this Court, is the

subject matter of challenge in this appeal.

The appellants claim to be tenants of the premises in

question which was previously known as 200 CIT Scheme

and subsequently came to be known as 101 Southern Avenue

and again renamed as 101 Dr. Meghnad Saha Sarani.

On the complaint lodged by the private respondents, a

demolition case was initiated by the Corporation against the

appellants for alleged unauthorized construction at the said

premises. This resulted in an order of demolition. The

order was challenged by the appellants before the Municipal

Building Tribunal. The Tribunal dismissed the appeal on

merits after hearing all concerned parties. Challenging the

order of the Tribunal which upheld the demolition order

issued by the Special Officer (Building), KMC, the appellants

approached the learned Single Judge by filing the present

writ petition.

A number of arguments were advanced by learned

Counsel for the appellants/writ petitioners before the

learned Single Judge which we need not advert to in view of

the nature of the order that we propose to pass.

The learned Single Judge had called for a report from

the Corporation indicating as to whether the nature of

unauthorized construction was such that it could be

regularized under the third proviso of Section 400(1) of

Kolkata Municipal Corporation Act read with the

Regulations made thereunder. A report was filed by the

Municipal Commissioner. The report indicated that the

sanctioned plan was for approximately an area of 7677 sq. ft.

and additional unauthorized construction has been made to

the extent of about 3212 sq. ft. i.e., about 41 per cent of the

sanctioned area. The report accordingly indicated that the

nature and extent of unauthorized construction could not be

said to be minor and as such incapable of being regularized

under the relevant provisions of the KMC Act read with the

Rules famed thereunder.

Relying primarily on the aforesaid report, the learned

Judge dismissed the writ petition. Hence, this appeal.

Without adverting to the other arguments advanced

by learned Counsel for the appellants, we note the primary

grievance of the appellants, i.e., the inspection on the basis

whereof the report was filed before the learned Single Judge,

was held without notice to the appellants. The appellants

further argued that the Commissioner's report was solely

based on the report filed before him by the concerned

engineer who had inspected the concerned building. The

Commissioner before preparing his report should have

granted an opportunity of hearing to the appellants to make

submission in respect of the engineer's report.

We find some substance in this argument of learned

Counsel for the appellants. In our opinion, the ends of

justice will be served if, we pass the following order.

A fresh inspection of the impugned structure in

question be conducted by a competent officer in the

Corporation as may be deputed by the Municipal

Commissioner. Such inspection shall be in the presence of

the representatives of the appellants and the private

respondents. After the inspecting officer files his report

before the Commissioner, the Commissioner shall give an

opportunity of hearing to the appellants, the private

respondents or their authorized representatives. Prior to

such hearing, a copy of the inspection report shall be made

available to the appellants and the private respondents. The

appellants and the private respondents will be at liberty to

urge all points before the Commissioner who shall after

hearing them or their representatives, pass a reasoned order

in accordance with law. Let this exercise be completed

within two months from the date of communication of this

order by the appellants and/or the private respondents to

the Municipal Commissioner.

We make it clear that we have not gone into the

merits of the case in the sense that we have not applied our

mind to the fact as to whether or not the construction in

question is unauthorized and if unauthorized, whether or not

the same is capable of being regularized. The Commissioner

shall take an informed decision in accordance with law

without being influenced by any observation in the order of

the learned Single Judge which is impugned before us or in

this order. The order impugned is set aside. The

Commissioner shall not be swayed by any observation in the

report that he filed before the learned Single Judge. In

other words, the Commissioner shall decide the issue afresh

with an open mind.

The appeal stands disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)