Calcutta High Court (Appellete Side)
Krishna Prasad Shah & Ors vs Kolkata Municipal Corporation & ... on 7 February, 2023
Item No.8
In The High Court At Calcutta
Constitutional Writ Jurisdiction
(via video conference)
07.02.2023
Ct-24
WPA 2901 of 2023
Krishna Prasad Shah & Ors.
v.
Kolkata Municipal Corporation & Ors.
Mr. Ejaz Khan
Mr. Pradip Kumar De
Ms. Ananya Adhikary
... for the petitioners.
Mr. Srijan Nayek
Mr. Subhrangsu Panda
... for KMC.
The petitioners claim to be the tenants of premises
no. 2, Durga Das Lane, Ward No. 76, Borough-IX of the
Kolkata Municipal Corporation.
The petitioners are aggrieved by the notice dated
January 19, 2023 issued under Sections 544 and 546 of
the Kolkata Municipal Corporation Act, 1980 intimating
the landlords of the premises that the men and agents of
the Corporation will enter the subject premises on
February 7, 2023 for demolishing the unauthorized
structure in terms of the direction passed by the
Municipal Magistrate on December 28, 2022 under
Section 584 of the Kolkata Municipal Corporation Act,
1980.
The petitioner contends that they were not aware
of the proceeding initiated by the Corporation against
the landlords.
2
It has been submitted that the landlords, in
connivance with the men and agents of the Corporation,
are trying to evict the petitioners without the due
process of law.
It has been submitted that the petitioners were
never issued any notice in connection with the
demolition proceeding and accordingly the structure
occupied by the tenants ought not to be demolished in
the garb of demolition of the unauthorized structure
constructed by the landlords.
It appears from records that the notices were
issued by the Corporation in favour of the owners of the
subject premises who are the private respondents
herein. A complete trial was conducted by the Senior
Municipal Magistrate and upon hearing the parties and
examination of the witnesses, the Senior Municipal
Magistrate by a judgment dated December 28, 2022
directed the Municipal Commissioner, Kolkata Municipal
Corporation or his delegate to demolish the
unauthorized, irregular, invalid, illegal and unlawful
erection/construction work of the entire building as the
same was constructed without obtaining any sanction
from the Corporation.
The impugned notice issued under Sections 544
and 546 of the Act was challenged by the owners of the
subject premises, that is the private respondents herein,
by filing a separate writ petition being WPA 2454 of 2023
(Biswajit Duta & Anr. vs. State of West Bengal & Ors.).
The Court heard the aforesaid writ petition and
dismissed the same on February 6, 2023.
The petitioners claiming themselves to be the
tenants of the subject premises cannot be heard to
contend that they are entitled to occupy the structure
which has been held to be constructed in an
unauthorized manner by the landlords. The structure
constructed unauthorizedly, suffering an order of
demolition passed by the Senior Municipal Magistrate,
cannot be permitted to stand.
The proceeding before the Municipal Magistrate
was a contested one. Opportunity was given to the
landlords to demolish the unauthorized structure. The
landlords failed to do so and accordingly, the tenants
cannot be permitted to occupy and resist demolition of
the said structure.
In view of the above, there is no scope for
interference in the writ petition.
The writ petition fails and is hereby dismissed.
The Kolkata Municipal Corporation is, however,
restrained from demolishing any structure at the subject
premises which was constructed in accordance with the
sanctioned plan.
Affidavit-of-service filed in Court today is taken on
record.
There is no proof of service upon the private
respondents.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
Sh (Amrita Sinha, J.)
