Rajesh Jaiswal & Anr vs Howrah Municipal Corporation & ...
2023 Latest Caselaw 3250 Cal

08.05.2023
Item No.05
Court No.6.
    S. De
                               M.A.T. 555 of 2023
                                       with
                              I.A. No. CAN/1/2023

                           Rajesh Jaiswal & Anr.
                                    Vs
                     Howrah Municipal Corporation & Ors.

                    Ms. Shebatee Datta,
                    Ms. Poulami Roy,
                                      ...for the appellants.
                    Mr. Sanjib Seth,
                                      ..for the respondent no.6.

Mr. Susanta Pal, Mr. Prabir Kumar Ray, ...for the State.

Mr. Sandipan Banerjee, Mr. Ankit Sureka, Mr. Sobhan Majumder, ...for the H.M.C.

By consent of the parties the appeal and the

connected application are taken up together for

hearing.

A judgment and order dated March 21, 2023,

whereby the writ petition of the appellants being WPA

23266 of 2022 was disposed of, is assailed before us in

this appeal.

It appears that on a complaint lodged by the

private respondent herein, a demolition order was

issued by Howrah Municipal Corporation (in short

H.M.C.), calling upon the appellants herein to remove

certain unauthorized constructions. It is the further

case of the appellants that upon acceptance of

retention fees, some of the unauthorized constructions

were permitted to be retained.

Before the learned Single Judge, a report dated

March 21, 2023, was filed by the Assistant Engineer

in-charge, Building Department, H.M.C. That was a

report prepared pursuant to a joint inspection

conducted on March 20, 2023, wherein the appellants

participated. The said report mentions that the parties

are directed to cause self demolition of the

unauthorized area within fifteen days from the date of

receipt of the order; in default, H.M.C. will cause

demolition and recover the cost thereof from the

concerned party. The learned Judge disposed of the

writ petition with the following observations :

"The report dated 21st March, 2023 has been circulated amongst the parties in Court today.

The parties are directed to act in accordance with the direction passed by the Howrah Municipal Corporation.

The portions, which the petitioner Rajesh Jaiswal has been permitted to be retained shall, however, not be required to be demolished. Rajesh Jaiswal will be obliged to produce documents showing that the Corporation permitted retention. In the absence of proper evidence permitting retention, the parties will not be entitled to claim retention."

Being aggrieved, the writ petitioners are before

us by way of this appeal.

Learned advocate for the appellants says on

instruction that on the day of joint inspection, no

measurement was undertaken by the Corporation

Officers. She further says that her clients are ready,

willing and prepared to remove the unauthorized

construction so long as the Corporation identifies such

unauthorized construction with sufficient particulars.

As of date, it is not clear, after allowing for retention of

certain portion of the unauthorized construction,

which portions are required to be demolished.

Mr. Banerjee, learned advocate appearing for

H.M.C., candidly says that without segregating the

portion that requires to be demolished from the

portion that has been allowed to be retained, the

Corporation Officers cannot carry out the demolition

activity.

Hence, it is clarified that first of all, the H.M.C.

shall identify with adequate precision the portion of

the unauthorized construction that is required to be

demolished. Once that is done, the appellants will

have three weeks to carry out the self-demolition. In

default of the appellants demolishing the identified

unauthorized construction, H.M.C. shall carry out the

demolition activity at the cost of the appellants.

H.M.C. shall specify the portions that the appellants

are required to demolish and communicate the same

to the appellants within two weeks from date (May 22,

2023).

The learned Single Judge has already noted that

in order to take benefit of retention of any portion of

unauthorized construction, the appellants will have to

produce documentary evidence of such permission

having been granted by H.M.C. to them. We

completely endorse that view.

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 555 of 2023 is disposed of

along with the application being I.A. No. CAN 1 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.

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