Feroze Ahmed vs The Kolkata Municipal ...
2023 Latest Caselaw 201 Cal

09.01.2023
Item No.14.
Court No.6.
    S. De
                                  M.A.T. 2 of 2023
                                         with
                                I.A. No. CAN/1/2023

                               Feroze Ahmed.
                                     Vs
                  The Kolkata Municipal Corporation & Ors.

                      Md. Sabir Ahmed,
                      Mr. Shuvro Prasun Lahiri,
                      Mr. Biswajit Sarkar,
                      Mr. Dhiman Banerjee,
                                        ...for the appellant.

                      Mr. Barin Banerjee,
                      Mrs. Sima Chakraborty,
                                       ...for the K.M.C.

                      Mr. Sumitava Chakraborty,
                                 ...for the respondent nos. 5 & 6.

This appeal is directed against a judgment and

order dated December 23, 2022, whereby the

appellant's writ petition being WPA 27233 of 2022 was

dismissed.

It appears that premises no. 1N, Sapgachi, 1 st

Lane, Kolkata-39 is a joint property of the

appellant/writ petitioner and the private respondents.

A partition suit is admittedly pending in the relevant

Civil Court at the instance of the private respondents

herein. There is also an order of status quo passed by

the learned Civil Judge in that suit.

It appears that a complaint was received by the

Kolkata Municipal Corporation (K.M.C.) on February

22, 2013, from some of the private respondents herein,

to the effect that the appellant/writ petitioner and one

other person had made unauthorized construction at

the premises referred to above.

On the basis of such complaint, the Deputy

Chief Engineer (Building)/South, K.M.C., initiated

Demolition Case no. D/VII/2013-14 against the

appellant herein and the said other person by the

name of Md. Salahuddin. Such proceedings

culminated in an order of demolition dated December

10, 2013. The persons responsible were called upon

to demolish the unauthorized construction within

fifteen days from the date of communication of the

demolition order, failing which, the K.M.C. authority

was to demolish the same at the risk and cost of the

persons responsible.

This order was carried in appeal by the

appellant herein and Md. Salahuddin before the

Municipal Building Tribunal by way of B.T. Appeal

No.133 of 2013. The appeal unfortunately was kept

pending for about nine years. This is most

unfortunate.

By an order dated June 24, 2022, the appeal

was dismissed on contest and the demolition order

was affirmed.

Being aggrieved by the order of the Tribunal, the

writ petitioner approached the learned Single Judge in

the present round of litigation.

The learned Single Judge noticed that pursuant

to the order of the Tribunal, a notice under Sections

544 and 546 of the K.M.C. Act 1982 had been issued.

The learned Judge recorded the submission made on

behalf of the petitioner that the structure in question

has been there for a considerable period of time. It is

a factory-shed and several workers are working

thereat. Livelihood of several workers would be

jeopardized if the demolition order was carried out.

The learned Judge noticed that the extent of

unauthorized construction was 1063.47 sq.mts.

approximately.

The learned Judge dismissed the writ petition

with the following observations :-

"The order of demolition was passed way back in the year 2013 but till date the same could not be executed as the appeal was pending consideration before the Municipal Building Tribunal.

The Tribunal heard the matter in details and as such, the submission of the petitioner that fair opportunity was not given to the petitioner to defend the construction cannot be accepted. Construction made unauthorizedly, suffering an order of

demolition, ought not to stand any further.

It has been submitted that there is an order of injunction passed by the Learned Civil Court in respect of the selfsame structure.

The order of injunction cannot be made applicable and bind any structure which is unauthorized and suffering an order of demolition passed by the Corporation, affirmed by the Municipal Building Tribunal. Even though the structure is in existence for a long period, the same cannot be ratified by way of passage of time. As the respondent authority has come to a conclusive finding that the structure is unauthorized and the said finding has been affirmed by the Tribunal, accordingly, the unauthorized structure is liable to be demolished immediately.

The instruction provided by the engineers of the Corporation reveals that part demolition has been conducted but there are still some portions which cannot be demolished as it is occupied. The men and agents of the Kolkata Municipal Corporation will be at liberty to seek assistance from the jurisdictional police station for executing the order of demolition.

In the event, a request is made by the Corporation to the police, then

necessary assistance shall be provided by the police to the men and agents of the Corporation for executing the order of demolition." Being aggrieved, the writ petitioner has come up

by way of the instant appeal.

We have heard Mr. Lahiri, learned counsel for

the appellant, at length. We have also heard learned

counsel for the private respondents and learned

counsel for the K.M.C.

The demolition order was passed by the officer

at the first instance after hearing all the concerned

parties. The Tribunal also disposed of the appeal after

hearing all the concerned parties. Principles of

natural justice have been duly observed. Admittedly

no sanctioned plan was obtained by the appellant

before the structure in question was put up. Passage

of time cannot legitimize something which at its

inception was illegal. Mr. Lahiri strenuously argued

that the structure impugned has been there for the

last forty years. According to us, the same is

irrelevant. If the structure was put up without

obtaining due sanction from K.M.C., then it was an

unauthorized construction which cannot become

authorized or lawful just by reason of passage of time,

even a considerable time period.

Mr. Lahiri also tried to impress upon us that

livelihood of a huge number of workers is at stake. If

the impugned structure is demolished, more than

hundred workers will lose their jobs. We have full

sympathy for the workers but sympathy cannot be the

basis for passing Court orders. If we accept Mr.

Lahiri's submission, we will have to set aside the order

of demolition. This would create a dangerous

precedent. Unscrupulous persons would put up

unauthorized structures, start doing business

therefrom, employ people and when faced with

demolition proceedings would argue that livelihood of

people would be jeopardized if the unauthorized

construction was demolished. This cannot be

countenanced.

Mr. Lahiri also urged that there is an order of

status quo in the partition suit which is still in force.

We are not impressed. Apart from the fact that K.M.C.

is not a party to the partition suit and the status quo

order is not binding on K.M.C., even if K.M.C. was a

party to the partition suit, we would have clarified as

the learned Single Judge has done, that such order

cannot stand in the way of K.M.C. discharging its

statutory duties which would include demolishing

unauthorized constructions.

Learned advocate for the private respondents

submitted that previously a writ petition had been filed

by the appellant herein and Md. Salahuddin being

W.P.A. 16887 of 2022, challenging the Tribunal's

order. The Court found out that the appellant had

forged the signature of Md. Salahuddin on the

Vakalatnama. Upon such forgery being detected, the

writ petition was dismissed with costs assessed at

Rs.25,000/-. The appellant says that the cost has

been paid.

Mr. Chakraborty, learned advocate representing

the private respondents says that while disposing of

the writ petition, the learned Single Judge did not

grant liberty to the writ petitioner to file afresh on the

selfsame cause of action. Accordingly, this writ

petition is hit by the principles of res judicata. We

have recorded the aforesaid submission of Mr.

Chakraborty. However, since we propose to dismiss

the appeal on merits, we need not make any comment

on such submission.

We find absolutely no infirmity in the order

under appeal. The order warrants no interference.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondents.

The appeal being MAT 2 of 2023 fails and is

dismissed along with the application being I.A. No.

CAN 1 of 2023.

There will be no order as to costs.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

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