Gopal Krishna Banerjee vs Kolkata Municipal Corporation & ...
2023 Latest Caselaw 3123 Cal

Ml-   02.05.2023
235   Ct.15
                                   W.P.A. 9702 of 2015
rkd                       (IA NO: CAN 1/2016 (Old No: CAN 4726/2016)

                                   Gopal Krishna Banerjee
                                             -vs-
                             Kolkata Municipal Corporation & Ors.

                   Mr. Sakya Sen,
                   Mr. Sidhartha Sharma,
                   Mr. Rishav Dutt,
                   Mr. Rohit Bhattacharjee
                                                         ....for the petitioner.
                   Mr. Aniruddha Mitra,
                   Mr. Anirban Ghosh
                                                   ....for the respondent no.6.

Mr. Alak Kumar Ghosha, Mr. Achintya Kumar Banerjee, Ms. Era Ghose ....for the KMC.

The writ petition is presented, inter alia,

challenging a notice dated 21st April, 2015 issued by

the Deputy Chief Engineer (Building), Borough -VII

whereby it was intimated to the petitioner that

pursuant to the order of the Learned Building

Tribunal, Kolkata Municipal Corporation dated 4th

December, 2008 steps were taken for demolishing

portion of the structure erected by the petitioner but

the work of demolition was not complete therefore

petitioner was also informed that according to the

Corporation certain portions of the structure of the

petitioner are left to be demolished vide order

passed by the Building Tribunal.

Mr. Sen, learned counsel representing the

petitioner submits that order of the Learned

Municipal Building Tribunal dated 4th December,

2008 was questioned before the coordinate Bench

by instituting a writ petition being W.P.O. 271 of

2009 and the coordinate Bench by delivering a

judgment dated 2nd September, 2010 upheld the

decision of the Building Tribunal and thereby order

of the Building Tribunal dated 4th December, 2008

was confirmed. Against that petitioner preferred an

intra Court appeal before the Hon'ble Division

Bench and the appeal was disposed of vide order

dated 14th March, 2011 confirming the order passed

by the learned Single Judge.

However, it has been submitted on the

petitioner that pursuant to the order passed by the

Building Tribunal being confirmed by the Hon'ble

Division Bench vide order dated 14th March, 2011 a

notice dated 4th July, 2011 was served upon the

petitioner for demolition of the unauthorized

construction and according to the petitioner

demolition work was completed by the Kolkata

Municipal Corporation pursuant to the said

demolition notice dated 4th July, 2011 and the

nothing is left to be demolished.

The impugned notice dated 21st April, 2015

which is at page 191 of the writ petition is not

tenable according to the petitioner since the same

was issued four years after the notice of demolition

was issued on 4th July, 2011 therefore according to

the petitioner such impugned notice dated 21stApril,

2015 is afterthought. It has also been contended on

behalf of the petitioner that the notice dated 21st

April, 2015 is devoid of particulars and the same is

vague.

The learned advocate representing the

Kolkata Municipal Corporation has drawn attention

to the affidavit-in-opposition affirmed on behalf of

the Corporation on 18th August, 2015 wherein it

has been averred that albeit demolition programme

was fixed on 12th July, 2011 but on that date all the

illegal constructions could not be demolished due to

the reasons beyond control therefore demolition

order should be executed in its true letter and

spirit.

The learned advocate representing the

added respondent no.6 also supports the contention

of the Kolkata Municipal Corporation which

emanates from the affidavit-in-opposition affirmed

on behalf of the Corporation and it has further been

submitted that respondent no.6 is the owner of the

property in question wherein the petitioner runs the

club.

It is also contended that de novo inspection

is required to be made on behalf of the Kolkata

Municipal Corporation to find out whether the

demolition order was truly carried out in order to

complete the demolition process but according to

estimation of the respondent no.6 the demolition

work which was carried out pursuant to the

demolition notice dated 4th July, 2011 was not

complete.

Having considered the submissions made

by the respective parties, it appears that after the

order of the Municipal Building Tribunal dated 4th

December, 2008 was confirmed by the order of the

Hon'ble Division Bench dated 14th March, 2011 a

demolition work was carried out vide demolition

notice dated 4th July, 2011 by the Kolkata

Municipal Corporation. It is true that subsequent

notice for completing the demolition work was

issued on 21st April, 2015 which is four years after

the initial demolition notice was issued by the

Corporation after disposal of the appeal by the

Hon'ble Division Bench vide notice dated 4th July,

2011.

However, taking into consideration the

submissions made on behalf of the parties and the

stand which has been expressed by the Kolkata

Municipal Corporation by affirming affidavit-in-

opposition it appears that an exercise is required to

be carried out in order to find out whether the

demolition work could be made complete strictly in

terms of demolition sketch plan dated 8th May, 2003

after issuance of demolition notice dated 4th July,

2011 or not.

In order to complete such exercise, this

Court finds it apt to direct the Executive Engineer

(Civil) (Building Department), Kolkata Municipal

Corporation, Borough-VII being the respondent no.4

to inspect the area where according to the

Corporation the building in question situates and

also take into consideration the demolition sketch

plan dated 8th May, 2003 which was prepared by

the concerned authority of Corporation in order to

find out the extent of unauthorized construction

carried out by the petitioner at the material point of

time and prepare a report indicating whether the

illegal construction was demolished pursuant to the

demolition notice dated 4th July, 2011 in its

entirety. Such inspection is to be carried out by the

respondent no.4 within four weeks from the date of

communication of this order by either of the parties

upon issuing seven days' notice to the petitioner

and the respondent no.6.

After the aforesaid exercise is made

complete by the respondent no.4, the respondent

no.4 shall pass an order within four weeks

thereafter indicating whether the demolition work

was complete in the year 2011 pursuant to the

demolition notice dated 4th July, 2011 or some

portions are left to be demolished.

However, it is made clear that Special

Officer (Building) in his order dated 8th May, 2003

had categorically indicated in the concluding

portion that the construction which were specified

under Part-A can be retained by the petitioner (club)

on completion of formalities therefore no further

exercise shall be required to be made by the

respondent no.4 in order to find out the nature of

such construction falling under Part-A.

After taking such decision by the said

respondent no.4, the same shall be communicated

to the petitioner and the respondent no.6 within a

period of two weeks thereafter.

Interim protection granted by the

coordinate Bench on this writ petition by passing

order dated 14th May, 2015 which was extended till

disposal of this writ petition vide order dated 26th

November, 2015 however shall continue for a period

of four weeks after the receipt of order to be

passed by the respondent no.4 pursuant to the

aforesaid direction.

With the aforesaid direction, the writ

petition stands disposed of.

Application, if any pending, also stands

disposed of.

However, there shall be no order as to

costs.

Urgent photostat certified copy of this

order, if applied for, be given to the learned

Advocates for the parties on the usual

undertakings.

(Saugata Bhattacharyya, J.)