Prasanta Kumar Basu vs The State Of West Bengal & Ors
2023 Latest Caselaw 3667 Cal

06.06.2023
Item No.07
Court No.6.
    S. De
                                 M.A.T. 349 of 2023
                                         With
                                I.A. No. CAN/1/2023
                                I.A. No. CAN/2/2023

                              Prasanta Kumar Basu.
                                        Vs
                          The State of West Bengal & Ors.

                      Mr. Soumitra Mukherjee,
                      Mr. Sayantan Banerjee,
                                        ...for the appellant.
                      Mrs. Rupsha Chakraborty,
                                        ...for the State respondents.

Mr. Ujjal Ray, ...for the respondent no.13.

Ms. Sreyanshi Majumdar, ...for the respondent nos. 10, 11 & 12.

Mr. Tapas Kr. Adhikari, Mr. Abhijit Ghosh, ...for the added parties.

By consent of the parties the appeal and the

connected applications are taken up together for

hearing.

In re : I.A. No. CAN/1/2023

This is an application for condonation of delay of

one day in filing the appeal. Causes shown being

sufficient, the delay is condoned.

I.A. No. CAN/1/2023 is, accordingly, disposed

of.

In re : MAT 349 of 2023 & I.A. No. CAN/2/2023

This appeal is directed against a judgment and

order dated December 13, 2022, whereby the

appellant's writ petition being WPA 21316 of 2022 was

disposed of.

The appellant approached the learned Single

Judge with the grievance that the private respondent

in the writ petition had made unauthorized

construction. The Kolkata Municipal Corporation had

passed an order for demolition of such construction.

However, such demolition order was not being

implemented.

The learned Judge noticed that the order of

demolition was under challenge before the Municipal

Building Tribunal in B.T. Appeal No. 110 of 2022 at

the instance of the private respondent in the writ

petition. An application for addition of party was also

made before the learned Judge by the subsequent

purchaser of the structure in question which had been

found to be constructed unauthorizedly.

The learned Judge disposed of the writ petition

with the following observations :-

"As it appears that a statutory appeal is pending consideration before the Municipal Building Tribunal being the appellate forum, accordingly, the parties are given liberty to ventilate their grievances before the said forum.

The Municipal Building Tribunal is requested to make an endeavour to conclude the appeal within June 30, 2023.

An application for addition of party has been filed by the subsequent purchaser of the structure which has been found to be constructed unauthorizedly.

The applicant will be at liberty to approach the Municipal Building Tribunal in the pending appeal along with appropriate application(s) highlighting their grievances. The Municipality Building Tribunal shall consider the application for addition of party and pass necessary order."

Being aggrieved, the writ petitioner has come up

by way of the instant appeal.

Learned advocate for the appellant/writ

petitioner has produced before us a copy of an order

dated March 13, 2023, passed by the Municipal

Building Tribunal in B.T. Appeal No.110 of 2022. The

operative portion of the said order reads as follows :

"That the B.T. Appeal No.110 of 2022

be and the same is dismissed for

non-filing of the certified copy of the

impugned order with a liberty to the

Appellant to refilled this appeal on

receiving the certified copy of the

impugned order."

We, therefore, see that the order of the learned

Single Judge which is sought to be assailed before us,

has worked itself out. The Tribunal has passed an

order dismissing the appeal, albeit for non-filing of the

certified copy of the impugned order. The Tribunal

had reserved liberty to the appellant in the Municipal

Appeal to apply for restoration of the appeal upon

obtaining certified copy of the impugned order. Mr.

Mukherjee, learned advocate for the appellant, on

instruction, says that no such restoration application

has been filed till now.

In view of the above, today there is no

impediment in implementing the demolition order.

The Corporation is directed to implement its own order

of demolition at the earliest and positively within four

weeks from date since it has been found by the

Corporation that the concerned structure is

unauthorized. In the event, the Corporation Officers

approach the jurisdictional Police Station for

assistance in implementing the demolition order, the

Officer-in-Charge of such Police Station shall extend

all co-operations in that regard.

However, if the subsequent purchaser who

desired to be added as a party before the learned

Single Judge, has a right in law to approach the

Municipal Building Tribunal, or any other forum, he

would be at liberty to do so upon notice to the present

appellant.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondents.

Accordingly, MAT 349 of 2023 is disposed of

along with the application being I.A. No. CAN 2 of

2023.

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.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)