Sachindra Nath Kundu vs The State Of West Bengal & Others
2023 Latest Caselaw 1149 Cal

10.02.2023
Item no.6
Court No.6.
  AB
                                   M.A.T. 86 of 2023
                                          With
                                   I A CAN 1 of 2023

                            Sachindra Nath Kundu
                                      Vs
                       The State of West Bengal & Others

                    Mr. Nilanjan Bhattacharya,
                    Mr. Arpan Guha,
                    Mr. Abhilash Chatterjee,
                    Mr. Saikat Dey           ....for the Appellant.

                    Mr. Vinay Mishra
                               .....for the Respondent No.6 to 10.

Ms. Sutapa Sanyal, Mr. Anand Farmania ....for the State.

Mr. Sandipan Banerjee, Mr. Anik Sureka, Mr. Sovan Majumdar ....for the HMC.

By consent of the parties, the appeal and the

application are taken up for hearing together.

This appeal is directed against a judgment and

order dated January 9, 2023, whereby the appellant's

writ petition being WPA No.11852 of 2021 was, in

effect, dismissed.

The appellant approached the learned Single

Judge challenging an order of demolition of a building.

It appears that the entire building is unauthorized

inasmuch as no sanctioned building plan was

obtained for construction of the building.

The learned Judge noted that the appellant

/writ petitioner has made an application to Howrah

Municipal Corporation for regularization of the

unauthorized structure. However, the learned Judge

was of the opinion that the application for

regularization made after issuance of the demolition

order cannot be permitted to be considered because

that would set a bad precedent. In every case of

unauthorized construction facing order of demolition,

an application will be filed by the erring builder to

regularize the unauthorized construction to delay

implementation of the demolition order.

The learned Judge, accordingly, disposed of the

writ petition by directing the Corporation to take steps

for implementation of the demolition order in

accordance with law, at the earliest, but positively

within 12 weeks from the date of communication of

the order. Being aggrieved, the writ petitioner is before

us by way of this appeal.

Learned Advocate for the appellant says that his

client, who is more than 75 years old, purchased the

property in 1950s. The building was constructed in the

1930s. Whether or not the building was constructed

after obtaining sanctioned plan, cannot be ascertained

after 90 years. The appellant of-course has

constructed a bathroom on the third floor without

obtaining sanctioned plan. He is willing to demolish

that bathroom. His application for regularization

should be considered by the Corporation before

implementation of the demolition order.

In principle, we agree with the learned Single

Judge. A person, who applies for regularization, after

an order of demolition is issued, generally deserves no

sympathy. However, this is a case, which may be a

little different. The entire building was not constructed

by the appellant. He purchased the building about 20

years after the same was constructed. He says that he

came to know that there was no sanctioned plan for

the building only when he was served with the

demolition order.

Considering that the building has been there for

over 90 years and the appellant was not responsible

for construction of the building, as a matter of

exception and without setting any precedent, we direct

the Corporation to dispose of the regularization

application of the appellant, in accordance with law

and the applicable Rules and Regulations, by a

reasoned order, within a period of six weeks from the

date of communication of this order, along with a copy

of the application for regularization, after giving an

opportunity of hearing to the appellant, the private

respondents as also other neighbours of the appellant,

who, according to the appellant, had given their No

Objection for construction of the building, if the same

is necessary. Needless to say, if the application for

regularization is rejected, the order of demolition will

be implemented forthwith. Likewise, if the

regularization application is allowed to any extent,

naturally, the demolition order shall not be

implemented to that extent.

We have not gone into the merits of the

appellant's case. It is for the Corporation to decide the

regularization application of the appellant in

accordance with law being uninfluenced by any

observation in this order.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

M.A.T. No.86 of 2023 is, accordingly, disposed of

along with IA CAN 1 of 2023.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)