Sri Sambhu Das vs Goutam Dey
2023 Latest Caselaw 3436 Cal

16.05.2023
Item No.02
Court No.6.
    S. De
                               M.A.T. 875 of 2023
                                       with
                              I.A. No. CAN/1/2023

                                Sri Sambhu Das.
                                       Vs
                                  Goutam Dey.

                    Mr. Debojyoti Basu,
                    Mr. Tanmoy Sett,
                    Mr. Pran Gopal Das,
                                     ...for the appellant.
                    Mr. Alok Kumar Ghosh,
                    Mr. Swapan Kr. Debnath,
                                     ...for the K.M.C.
                    Mr. Anirban Majumder,
                    Mr. Somnath De,
                               ...for the respondent/writ petitioner.

By consent of the parties the appeal and the

connected application are taken up together for

hearing.

An order dated May 3, 2023, interim in nature

in the sense that the writ petition on which such order

was passed by the learned Single Judge, is still

pending, is under challenge in this appeal.

The appellant as developer had constructed a

building without obtaining sanctioned plan from the

Corporation. Proceedings having been initiated,

demolition order was passed by the Corporation.

The present writ petition was filed for demolition

of the unauthorized building in implementation of the

order of demolition.

Several earlier orders were passed on the writ

petition which may not be relevant today.

By the order impugned the learned Judge

recorded, on the basis of a report filed by the

Executive Engineer (Civil)/Building Department,

Borough-III, Kolkata Municipal Corporation signed on

May 2, 2023, that substantial portions of the building

in question have been demolished. The floors have

become unfit for human habitation. It was submitted

before the learned Judge on behalf of the appellant

herein that he was the developer of the property. After

the development was complete, the development

agreement stood terminated and possession was

handed over to the occupants.

The learned Judge directed the present

appellant, as the person responsible, to take the

responsibility for removing the unauthorized pillars

which are still standing. The learned Judge observed

as follows in the order impugned.

"As the respondent no.11 was the person responsible for making such unauthorized construction, accordingly, he ought to take the responsibility for removing the unauthorized pillars.

The respondent no.11 is directed to take steps for demolishing the pillars at once. The demolition work shall be done by maintaining proper safe

and security of the adjacent properties.

The matter is directed to appear in the list once again on 16th May, 2023.

A report shall be filed by the Corporation upon inspection of the property as to whether the pillars have been removed or not. In the event the pillars are not removed, the respondent no.11 shall appear personally before this Court on the adjourned date."

Being aggrieved, the respondent no.11 in the

writ petition has come up by way of this appeal.

The appellant says that proceedings having been

initiated under Section 400(8) of the Kolkata Municipal

Corporation Act, it is the responsibility of the

Corporation to demolish the unauthorized

construction. The appellant should not be directed to

do so. Further, the appellant has been acquitted of

charges in a criminal proceeding under Section 401A

of the Kolkata Municipal Corporation Act. In any

event, the appellant should not be foisted with the

costs of demolition of whatever remains of the

unauthorized construction.

We do not find any apparent infirmity in the

order impugned before us. The appellant admits to be

the developer. He was acquitted in the criminal

proceeding because the learned Magistrate was not

satisfied that the unauthorized construction was likely

to endanger human life or any property of the

Corporation. Even in the judgment of the learned

Magistrate, it is mentioned that the construction is

unauthorized. The learned Single Judge rightly

directed the appellant as the person responsible to

remove the remainder of the unauthorized

construction.

However, we see that the appellant is reluctant

to demolish the structure. We are also of the view that

it may be better if the Corporation carries out the

demolition activity as the same will be more systematic

and safe for the adjacent premises. The structural

stabilities of the adjacent premises are less likely to be

adversely affected if the experts from the Corporation

carry out the demolition activity. However, this will be

obviously at the cost of the appellant.

Accordingly, in partial modification of the order

of the learned Single Judge which is under challenge

in this appeal, we direct the Kolkata Municipal

Corporation to carry out the demolition activity at the

earliest. We request the learned Single Judge to pass

necessary orders to ensure that the Corporation

carries out the demolition activity within the time

period to be stipulated by the learned Judge. The

Corporation will be at liberty to raise bills for the cost

incurred by it for the demolition, on the respondent

no.11 in the writ petition along with the progress of

the work. Such bills will be paid by the respondent

no.11 promptly.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondent.

Accordingly, MAT 875 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.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)