Calcutta High Court (Appellete Side)
Md. Faiyazuddin And Ors vs State Of West Bengal & Ors on 8 February, 2023
08.02.2023
Item No.24
Crt. No.24. W.P.A. 2101 of 2023
KB
Md. Faiyazuddin and Ors.
Vs.
State of West Bengal & Ors.
Mr. Mohit Gupta
Mr. Jit Ray
Ms. Ruby Mukherjee
... For the petitioners.
Mr. Raja Saha
Ms. Tanusri Chanda
... For the State.
Ms. Manisha Nath
... For the KMC.
Mr. Dyutiman Banerjee
... For the Respondent
Nos. 9, 14, 15 and 16.
Supplementary Affidavit filed in Court is taken
on record.
Premises no. 182A/2, Picnic Garden Road,
Ward No. 67, Borough - VII of the Kolkata Municipal
Corporation is suffering an order of demolition.
The allegation of the petitioners is that they,
being the flat owners of the said premises, have not
been made aware of the demolition proceeding. It has
been submitted that the demolition proceeding was
initiated behind their back and the petitioners never
had any opportunity to place their case before the
Hearing Officer.
The petitioners stress upon the fact that the
order of demolition cannot be implemented as there
has been violation of principles of natural justice. In
support of the said submission, reliance has been
placed on the judgment delivered by the Hon'ble
Supreme Court in the matter of Whirlpool Corporation
vs. Registrar of Trade Marks, Mumbai and ors.
reported in (1998) 8 SCC.
The petitioners contend that they have
acquired right over the subject property upon
purchase of the same and accordingly a notice ought
to have been given to them making them aware of the
demolition proceeding.
Learned advocate representing the owners of
the said premises submits that steps are being taken
to prefer appeal before the appropriate forum
challenging the order of demolition.
Learned advocate representing the Kolkata
Municipal Corporation is yet to receive any
instruction in the matter.
Learned advocate representing the police
submits, upon instruction that, steps are being taken
in compliance of the direction passed by this Court on
2nd January, 2023.
It appears from record that an order of
demolition was passed by the Special Officer
(Building), Kolkata Municipal Corporation on 11 th
April, 2022. The same is yet to be implemented.
This Court in W.P.A. 24263 of 2022 filed by
one of the flat owners of the subject premises directed
the respondent authorities to take steps for
demolition of the unauthorised construction positively
by 10th February, 2023.
In the aforesaid writ petition a direction was
passed upon the Deputy Commissioner of Police (SSD)
to take steps for removing the occupants of the
unauthorised structure and to intimate the same to
the Executive Engineer (Civil) / Building, Borough VII
so that the unauthorised structure can be
demolished.
On perusal of the documents annexed to the
writ petition, it appears that a complaint was lodged
before the Corporation highlighting the illegal
construction made at the subject premises.
As the objection was not considered a writ
petition was filed. The said writ petition, being WPA
2697 of 2020, was disposed of on 22 nd March, 2021
directing the Kolkata Municipal Corporation to take
steps to dispose of the said representation and in the
event it is found that the construction has been made
in violation of the plan sanctioned or devoid of the
sanction plan, steps to be taken to deal with such
unauthorised construction.
Hearing was conducted and the Hearing
Officer opined that the construction is an
unauthorised one. Three building blocks of the four
storied construction were constructed without
obtaining any sanction. There has been infringement
in the mandatory side open spaces required to be
maintained in accordance with the building rules. The
Special Officer (Building) directed demolition of the
entire unauthorised construction having an area of
3485 sq. ft. approximately.
With regard to the submission of the
petitioners that there has been violation of the
principles of natural justice in not issuing notice to
them as right accrued in their favour on account of
purchase of the flats in question, this Court is of the
opinion that right accrues in respect of a construction
made in accordance with the provision of law. None
can claim any legal right in respect of a structure
constructed contrary to the municipal law. Purchase
of a structure constructed illegally does not create any
legal right in favour of the purchaser.
It is the duty and obligation of a purchaser to
make thorough searches prior to purchase to enquire
as to whether the structure intended to be bought has
been constructed legally or not. If the purchaser buys
a property without making necessary searches or
purchases the same having knowledge of the defects
of the same then he has to suffer the consequences
which may appear to be harsh and painful. If the
purchase has been made upon false or incorrect
information provided by the seller, then the purchaser
may sue the seller for relief.
A construction which is made without
following the due provision of law cannot be permitted
to stand. It is high time that the demolition order
passed in April, 2022 is implemented.
Moreover, this Court by order dated 2 nd
January, 2023, in a petition filed by one of flat owners
of the subject premises, directed the authority to
demolish the unauthorised structure by 10 th
February, 2023.
The Corporation and the police shall proceed
with the demolition work in accordance with law.
Let the matter appear in the list once again on
15th February, 2023 to ascertain as to whether the
demolition has actually being carried out or not.
Urgent certified photo copy of this order, if
applied for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
