Calcutta High Court
Sk. Ahsan vs Md. Ehtesham Uddin And Ors on 5 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
OD-1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/432/2023
[WITH WPO/1235/2023]
IA No.GA/2/2023
SK. AHSAN
VS
MD. EHTESHAM UDDIN AND ORS.
.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE PRASENJIT BISWAS
Date : 5TH December, 2023.
Appearance:
Mr. Biswajit Mukherjee, Adv.
Mr. Sumitava Chakraborty, Adv.
Mr. Subhrangsu Panda, Adv.
Ms. Ina Bhattacharyya, Adv.
......for Appellant.
Mr. Arif Ali, Adv.
Mr. Sarban Bhattacharyee, Adv.
For Res. No. 1/writ petitioner
Mr. Debangshu Dinda, Adv.
...for the State.
Ms. Piyali Sengupta, Adv.
For KMC
The Court:- An order dated November 30, 2023, passed by
a learned Judge of this Court in the writ petition of the respondent
no. 1 herein, being WPO/1235/2023, is under challenge in this
appeal. The present appellant is the respondent no. 10 in the writ
petition. The order under appeal is interim in nature, in the sense
that, the writ petition is pending before the learned single Judge
and has been directed to be listed again on December 19, 2023.
This matter has a chequered history. The respondent no. 1
in this appeal had approached a learned single Judge of this Court
earlier by filing WPO/2211/2022, with the allegation that the
present appellant has raised illegal construction. However, in spite
of complaints being filed, Kolkata Municipal Corporation (KMC) has
not taken any step. The learned Judge noted that KMC had already
issued a demolition order in respect of the impugned construction.
The learned Judge directed implementation of such order.
The present appellant was not a party respondent in that
writ petition. He came before a co-ordinate Bench by filing
APOT/103/2022. By a judgment and order dated June 15, 2022
the co-ordinate Bench added the present appellant as party
respondent to the writ petition and the matter was remanded to the
learned single Judge having determination to hear the writ petition
afresh.
Upon remand, the matter was considered afresh by the
learned single Judge and an order dated June 20, 2022, was
passed. It was noted that the present appellant had filed BT Appeal
No. 87 of 2022 before the Municipal Building Tribunal against the
concerned demolition order. Noting the pendency of such statutory
appeal, the learned Judge disposed of WPO/2211/2022 reserving
liberty to the parties to approach the Tribunal for necessary orders.
Against that order of the learned single Judge, the writ
petitioner in that proceeding, who is respondent no. 1 in this
appeal, preferred an appeal being APO/119/2022. The appeal was
disposed of by a co-ordinate Bench directing the Municipal
Building Tribunal to dispose of BT Appeal No. 87 of 2022 as
expeditiously as possible and definitely within three months from
the date of communication of the order to the Tribunal.
Thereafter the appellant herein approached a learned
single Judge by filing WPO/1370/2023 challenging a notice of
engagement issued by KMC under Sections 554 and 556 of the
KMC Act, 1980, fixing June 30, 2023, as the date of demolition.
It is a matter of record that in the meantime, on January
30, 2023, the present appellant's statutory appeal against the
demolition order was dismissed for default by the Municipal
Building Tribunal.
Before the learned single Judge it was submitted on behalf
of the appellant, who was the writ petitioner in WPO/1370/2023
that steps were taken for recall of the order of dismissal of the
statutory appeal. A restoration application was filed, which was
scheduled to be taken up for consideration by the Tribunal on July
31, 2023. The learned Judge dismissed the writ petition with the
following observation:
"In the facts and circumstances of the present case, I am not
inclined to exercise jurisdiction because of the reason that the
Hon'ble Division Bench of this Court in an appeal being IA No.
GA/1/2022 in APOT/119/2022 (Md. Ehtesham Uddin Vs. The
Kolkata Municipal Corporation & Ors) passed order on 19.07.2022
directing the Municipal Building Tribunal to dispose of the B. T.
Appeal No. 87/2022 as expeditiously as possible, without granting
unnecessary adjournment and definitely within three months from
the date of communication of this order to the Tribunal.
The time period within which the appeal was directed to be
disposed of is long over. The appellant ought to have been cautious
and careful in proceeding with the statutory appeal. The appellant
instead of proceeding with the appeal left the matter uncared for an
the same stood dismissed for default on 30.01.2023.
Till today, no order has been passed in the application seeking
recalling the order of dismissal. As on date, there is no order which
stands in the way of the Corporation to proceed to execute the order
of demolition.
On an earlier occasion, on 30.06.2023, the demolition
programme could not be implemented for want of adequate security
from the police. Today the police is ready to provide the necessary
security to the Corporation for implementing the demolition order.
At this stage, it will be highly improper to pass any order
restraining the Corporation from implementing the order of
demolition which was passed way back on 19.04.2022.
In view of the above, no relief can be granted to the petitioner
in the instant writ petition. The writ petition, fails and is hereby
dismissed."
Being aggrieved by that order, the writ petitioner in that
proceeding, who is the present appellant, had come up before a co-
ordinate Bench by filing APOT/217/2023. The said appeal was
dismissed by a judgement and order dated August 16, 2023, the
operative portion whereof reads as follows:
"We have considered the respective contentions of the parties.
On an earlier occasion, on June 20, 2022, noting the pendency of the
statutory appeal at the instance of the present appellant, we had
directed the Tribunal to conclude the proceedings in the appeal as
expeditiously as possible and definitely within three months from the
date of communication of that order. Not only the appeal was not
disposed of within three months and nothing has been placed before
us by the appellant to show that he made any effort to that end, the
appellant permitted the statutory appeal to be dismissed for default
on January 30, 2023. Learned advocate for the appellant says that it
is the fault of the learned advocate who was then in charge. We are
not impressed with such submission. It has become a trend to put the
blame on the learned lawyer and promptly obtain a change from him.
In any event, we are highly dissatisfied with the conduct of the
appellant. The restoration application was not filed till June 27, 2023
i.e., almost after five months from the date of dismissal. A court of
equity would not come to the rescue of an indolent litigant. We are
further told that in spite of pendency of the appeal from June 20,
2022, till it was dismissed for default on January 30, 2023, the
appellant herein could not obtain any interim protective order in the
appeal.
In the aforesaid facts and circumstances of this case, we are not
inclined to show any leniency to the appellant. We find no infirmity in
the order under appeal. The conduct of the appellant does not entitle
him to any indulgence."
A Special Leave Petition filed against the aforesaid
judgement and order dated August 16, 2023 and registered as
Special Leave to Appeal (C) No(s). 18584/2023 was dismissed as
withdrawn by an order dated August 28, 2023.
In the present round of litigation the respondent no. 1
herein approached the learned single Judge for implementation of
the demolition order in question. The learned Judge recorded the
following order:
"Learned advocate representing the Corporation seeks time
to produce an undated report.
Learned advocate representing the State respondents has
obtained instruction from the concerned Officer-in-Charge wherein
it is mentioned that dates have been fixed for demolition of the
unauthorized construction by the Kolkata Municipal Corporation on
06.12.2023, 07,12,2023, 11.12.2023 and 12.12.2023. It has been
submitted that the premises in question has been made vacant and
is more or less ready for demolition.
List the matter once again on 19th December, 2023.
The updated report shall be produced before this Court on
the adjourned date."
Being aggrieved, the respondent no. 10 in the writ petition
has come up by way of the present appeal.
Mr. Mukherjee, learned Advocate appearing for the
appellant says that December 20, 2023, has been fixed as the date
for hearing of the appellant's restoration application by the
Municipal Building Tribunal. His only prayer is that the demolition
be kept in abeyance till December 20, 2023. If the appellant is
unable to have his appeal restored and unable to obtain an interim
protective order, KMC may go ahead with the demolition
programme.
This prayer made by the appellant is strongly opposed by
the learned Advocate for respondent no.1/writ petitioner as well as
learned Advocates for the State and KMC. It is submitted on their
behalf that with a lot of effort the building in question has been
vacated. Demolition schedule has been fixed on December 6,
December 7, December 11 and December 12, 2023, as noted by the
learned single Judge. The demolition programme should not be
interfered with by the Court. It is also submitted that on July, 2023
the building was partly demolished.
We have recorded the history of this case above to
highlight the conduct of the present appellant, which is far from
satisfactory. The appellant has raised a G+4 storied building
without having obtained any sanctioned plan from KMC. After the
demolition order was passed, the appellant filed a statutory appeal
before the Municipal Building Tribunal. He allowed the appeal to be
dismissed for default on January 30, 2023. Thereafter, whenever
the matter came before the Court, his submission was that
restoration application is pending. Once the appeal is restored, he
will try to obtain an interim protective order from the Tribunal.
Therefore, breathing space should be granted to him. It will be seen
from the facts noted above that sufficient breathing space has been
granted to the appellant. He is obviously not serious about
prosecuting the appeal. The appeal was dismissed for default
almost a year ago. Still it has not been restored. A litigant cannot
be permitted to get away by shifting the entire blame on his lawyer.
We have found no diligence on the part of the appellant.
A citizen, who has no regard for the law of the land
deserves no sympathy or indulgence from a court of law and
particularly from a court of equity which the writ court is. The
unauthorized construction has been there for a long time now. It is
high time that the same is demolished.
We find no merit in the appeal. The appeal and the
connected application are dismissed. We were minded to impose
cost on the appellant but persuaded by the eloquence of Mr.
Mukherjee, we do not impose any cost on the appellant.
Since we have not called for affidavits, the allegations
made in the stay application are deemed not to have been admitted
by the respondents.
.
(ARIJIT BANERJEE, J)
(PRASENJIT BISWAS, J.)
dg/.
