Tanveer Khan vs Kolkata Municipal Corporation And Ors
2023 Latest Caselaw 3378 Cal/2

Calcutta High Court

Tanveer Khan vs Kolkata Municipal Corporation And Ors on 11 December, 2023

Author: Arijit Banerjee

Bench: Arijit Banerjee

                                     1


OD-5

                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL APPELLATE JURISDICTION
                          ORIGINAL SIDE

                               APOT/434/2023
                              WPO/1816/2023
                              IA No.GA/1/2023

                      TANVEER KHAN
                            VS
          KOLKATA MUNICIPAL CORPORATION AND ORS.
                                     .

BEFORE:

The Hon'ble JUSTICE ARIJIT BANERJEE The Hon'ble JUSTICE M.V. MURALIDARAN Date : 11TH December, 2023.

Appearance:

Mr. Ranajit Chatterjee, Adv.

Mr. Aniruddha Mitra, Adv.

For the appellant.

Mr.Swapan Kumar Deb, Adv.

Ms. Tanushree Dasgupta, Adv.

......for KMC.

Mr. Y. Deora, Adv.

...for the State.

The Court:- Affidavit of service filed in Court today be

kept with the records.

By consent of the parties the appeal and the

application are taken up together for hearing.

A judgment and order dated December 6, 2023,

whereby the appellant's writ petition being WPO/1816/2023

was dismissed by a learned Judge of this Court, is assailed in

this appeal.

The appellant approached the learned single Judge

challenging an engagement notice issued by KMC under

Sections 544 and 546 of the KMC Act, 1980. The occupants of

the building in question were called upon to vacate the

premises to enable KMC to implement a demolition order

which had been passed by the Special Officer (Building) on

May 11, 2023.

The appellant submitted before the learned Judge that

the notice of the demolition proceeding or the notice under

sections 544 and 546 were not issued to the person

responsible for making construction. Instead, such notices

had been issued in the name of a dead person.

The learned Judge dismissed the writ petition with the

following observations:

"It appears from the order of demolition and the notice issued under Sections 544 and 546 of the

Kolkata Municipal Corporation Act, 1980 that the same was issued in favour of Shakir Ali and others. One of the noticees may have died, but there is no record to show that all the noticees have either not received or have expired.

As the appeal is pending consideration before the statutory appellate forum, it will be open for the petitioner to approach the appellate forum for necessary relief.

The Court is not inclined to exercise jurisdiction in the writ petition. The writ petition fails and is hereby dismissed."

Being aggrieved, the writ petitioner is before us by way

of this appeal.

Mr. Chatterjee, learned Advocate appearing for the

appellant says that the demolition order was passed without

hearing the appellant, who is the promoter of the building in

question. Initially, in January, 2023, the appellant was heard.

He was, however, not notified of the subsequent dates of

hearing. This is not a case where there is no sanctioned

building plan. Even assuming there are deviations from the

sanctioned plan, there could be no justification for the Special

Officer (Building) to direct demolition of the entire building. No

report or opinion of an expert engineer has been referred to by

the Special Officer (Building) to the effect that only the

deviated portion cannot be demolished and necessarily the

whole structure has to be dismantled.

Learned Advocate says that the appellant's statutory

appeal along with the stay application for interim relief is

pending before the Municipal Building Tribunal. The appeal is

registered as BT Appeal No. 182 of 2023. The Tribunal is

refusing to hear out the stay application contending that the

order of the Special Officer (Building) that has been produced

by the appellant before the Tribunal is not a genuine order.

Mr. Chatterjee has annexed photocopy of the order of the

Special Officer (Building) to the stay petition. It is at page 51 of

the stay petition. To us it appears to be a genuine order. Same

is the view of Mr. Debnath, learned Advocate for KMC.

Mr. Chatterjee further produced before us certified

copy of an order of the Special Officer (Building). His client will

be at liberty to file the same before the Tribunal and the

Tribunal, in that event, will proceed on the basis of such

order. The appellant may also produce before the Tribunal a

copy of the present stay petition which includes copy of the

Special Officer's (Building) order which we think is a genuine

order.

We are told that the next date fixed by the Tribunal for

hearing of the appellant's statutory appeal is January 19,

2024. We direct the Tribunal to prepone the date of hearing

and dispose of the appellant's stay application on or before

January 15, 2024, observing the principles of natural justice.

The Tribunal shall dispose of the stay application

independently without being influenced by any observation in

the present order or in the order of the learned single Judge

impugned before us in this appeal.

We make it clear that if the appellant is unable to get

interim relief before the Tribunal, the demolition order will be

implemented by KMC in accordance with law.

We are told that before the Tribunal, the appellant has

filed an application for condonation of delay. That application

will be decided by the Tribunal in accordance with law.

Till the end of January, 2024, let no coercive step be

taken by KMC in respect of the impugned construction.

Both the appeal and the application are disposed of.

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)

(M.V. MURALIDARAN, J.)

dg.