Muktar @ Muktar Ahmed vs The Howrah Municipal Corporation ...
2023 Latest Caselaw 3950 Cal

   D/L
Item No 05
20.06.2023
 KOLE
                                FMA 969 of 2022
                                     With
                              IA No. CAN 1 of 2022

                       Muktar @ Muktar Ahmed
                               -Vs.-
                The Howrah Municipal Corporation & Ors.


             Mr. Mahendra Prasad Gupta,
             Mr. A. Mitra,
             Mr. S. Mahajan,
                                                         ... for the appellant.
             Mr. Sandipan Banerjee,
             Mr. A. Surekha,
             Mr. S. Majumder,
                                                  ... for the respondent no. 1.

Mr. Mokaram Hossain, Mr. S. Maity, ... for private respondents.

By consent of the parties the appeal and the

connected application are taken up for hearing together.

A judgment and order dated February 4, 2020,

whereby the writ petition of the respondent nos. 9 to 12

herein being WP 13122 (W) of 2019 was disposed of, is under

challenge in this appeal at the instance of the respondent no.

9 in the writ petition.

It appears that the writ petitioners approached the

learned Single Judge with the grievance that the private

respondents were making unauthorized and illegal

construction. Howrah Municipal Corporation (in short

"HMC") issued a show cause notice dated July 13, 2018, to

the private respondents, but thereafter, did not take any

steps. This prompted the writ petitioners to approach

learned Single Judge.

Learned Advocate for the private respondents

submitted before the learned Judge that the writ petitioners

are parties to a civil suit where the private respondents were

also parties. Further, an earlier writ petition being WP No.

22407 (W) of 2018 (Md. Shahid-vs.-HMC & Ors.) was

dismissed by a learned Single Judge by an order dated

November 28, 2018 on the ground that Md. Shahid was a

party to the civil suit pending between the parties. Learned

Advocate submitted that the present writ petition is identical

with the earlier one and, therefore, should be dismissed

following the earlier order referred to above.

Learned Advocate for HMC submitted that the

Corporation had detected unauthorized construction and

had accordingly issued show case notice.

The learned Single Judge disposed of the writ petition

with the following directions:-

"By order dated 28th November, 2018 in Md. Shahid (supra), the writ petition was dismissed as coordinate Bench found it inappropriate to interfere when there is civil suit pending between parties. It may well be that a co-plaintiff or co-defendant has again petitioned on same cause, being a persisting cause of unauthorized construction made. The cause is to be determined by the Corporation per provisions in Howrah Municipal Corporation Act, 1980. That can have nothing to do with rights of parties yet to adjudicated in a civil suit.

The Corporation will follow through on said show cause notice. In event it finds cause shown to be sufficient, same will be informed in writing to petitioner, on reasons for sufficiency found. Otherwise, the proceeding must be initiated within four weeks. Initiation of proceeding or sufficiency of cause shown intimated to petitioners, must be done in that time."

Being aggrieved, the respondent no. 9 in the writ

petition has come up by way of this appeal.

Learned Advocate for the appellant submitted before

us that three earlier similar writ petitions being, WP No.

22407 (W) of 2018, WP No. 11001 (W) of 2017, WP No.

16257 (W) of 2013 were dismissed on the ground of

pendency of the civil suit where the writ petitioners and the

private respondents are parties. The appellant herein

wanted to bring the records of such writ petitions before the

learned Single Judge by way of affidavit. However,

opportunity to file affidavit was not given by the learned

Judge. In the earlier round of litigation, a learned Single

Judge clearly observed that the issues raised in that writ

petition which are similar to the issues raised in the present

writ petition, were already sub-judice in the civil suit before

a competent court. On that ground, WP No. 22407 (W) of

2018 was dismissed. The learned Judge should have

followed such order and dismissed the present writ petition

also.

Learned Advocates appearing for the

respondents/writ petitioners and for HMC drew our

attention to an order dated December 11, 2017 passed by the

learned Howrah Court in Title Suit No. 119 of 2013. That

suit has been filed by the writ petitioner herein. The

appellant is a defendant in that suit. It appears that an order

of injunction had been passed at the instance of the plaintiff

in that suit. However, on an application under Order 39

Rule 4 of the Code of Civil Procedure, the injunction order

was modified and the defendant no. 1 in that suit who is the

appellant herein was "allowed to make construction over the

'B' schedule property strictly adhering to the sanctioned plan

being BR No. 40/A/E.B-III/16 dated 24.11.2016 sanctioned

on 03.11.2017. The order of injunction dated 29.07.2015 is

hereby modified to the extent under Order 39 Rule 4 of

CPC."

Learned Advocates submitted that the sanctioned

plan that exists in favour of the appellant, permits him to

raise construction of a G+2 building. In as far as the second

floor is concerned, there is a deviation of approximately 186

sq. mtrs. from the sanctioned plan. The third and fourth

floors are completely without sanction. These allegations are

strongly denied and disputed by learned Advocate for the

appellant.

We have considered the rival contentions of the

parties. We have noted that a civil suit is pending to which

the appellant herein as also the writ petitioners are parties.

The writ petitioners are plaintiffs in such suit. They have

claimed certain declaratory reliefs and consequential

injunction orders. HMC is a party defendant to that suit.

The civil suit notwithstanding, in our view, there is no order

of the learned Civil Court or of any competent forum

restraining HMC from carrying its statutory duties in

accordance with law.

As the learned Judge has noted, HMC submitted

before His Lordship, that having found unauthorized

construction, HMC issued a show cause notice to the

appellant herein. The learned Judge directed HMC to

proceed with the show cause notice. In our opinion, the

learned Judge rightly passed such direction. No extent of

civil dispute between the parties can stand in the way of

HMC discharging its duties under the Howrah Municipal

Corporation Act, 1980. If there is unauthorized

construction, the same must go. Illegal construction has

become a bane of the society. Such constructions must be

dealt with firmly.

We endorse the view of the learned Single Judge that

HMC shall follow up the show cause notice in question. We

are surprised that although the learned Judge's order was

passed way back in February, 2020, and there is no stay or

any other order in the appeal, HMC has not acted in terms of

the learned Judge's order.

Be that as it may, HMC shall now proceed with the

show cause notice in accordance with law and if it is found

that there is, indeed, unauthorized construction, the same

must be demolished. Needless to say, principles of natural

justice will be observed to the fullest extent. In other words,

all concerned parties including the writ petitioner, the

appellant herein or any other person who may be responsible

for such construction, will be given sufficient opportunity of

hearing.

At this stage, Mr. Banerjee, learned Advocate,

representing the HMC says that all concerned parties were

heard and an order of self-demolition dated September 13,

2022, has been passed by HMC requiring the person

responsible to demolish the unauthorized portion of the

building in question. A copy of such order is placed on

record. Since such order is there, the Corporation should

enforce the same in accordance with law subject to

interdiction by any competent forum.

Since we have not called for affidavits, the allegations

made in the stay application are deemed not to be admitted

by the respondents.

The appeal and the connected application are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)