Soumitra Mukherjee vs The Howrah Municipal Corporation ...
2023 Latest Caselaw 3488 Cal

17.05.2023
Item No.06
Court No.6.
    S. De
                               M.A.T. 860 of 2023
                                       with
                              I.A. No. CAN/1/2023

                            Soumitra Mukherjee.
                                    Vs
                   The Howrah Municipal Corporation & Ors.

                    Mr. Nilanjan Bhattacharyya,
                    Mr. Arpan Guha,
                    Mr. Abhilash Chatterjee,
                    Mr. Saikat Dey,
                                      ...for the appellant.
                    Mr. Tanmoy Mukerjee,
                    Mr. Souvik Das,
                    Mr. R.R. Ahmed,
                    Mr. Rudranil Das,
                          ...for the respondent no.6/writ petitioner.

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 April 17, 2023,

whereby the writ petition of the respondent no.6 was

disposed of, is under challenge in this appeal.

The writ petitioner approached the learned

Single Judge seeking implementation of an order of

demolition passed by the Howrah Municipal

Corporation in respect of a building constructed by the

appellant herein at premises no.5/8/2, Kali Prasad

Chakraborty Lane, Post Office-Kadamtala, Police

Station-Bantra, Ward No.23, Howrah-711 101. The

allegation was that a substantial portion of the

construction was without any sanctioned plan. It was

submitted on behalf of the Corporation that a self-

demolition notice had been issued on February 22,

2023 and the file is presently pending at the end of the

demolition squad.

The learned Judge disposed of the writ petition

with the following observations :-

"As it appears that the

structure in question is suffering

a self-demolition order and the

person responsible failed to act

in accordance with the said

order, accordingly, the Howrah

Municipal is directed to take

steps for implementation of the

same in accordance with the

law, at the earliest."

Being aggrieved, the respondent no.6 in the writ

petition has come up by way of this appeal.

It appears that the appellant herein filed a writ

petition being WPA 5939 of 2022 challenging the order

of demolition, in as much as the statutory appellate

forum is not available. The writ petition was

dismissed for default on February 6, 2023. The

application for restoration of the writ petition is

pending.

Mr. Bhattacharyya, learned advocate appearing

for the appellant further says that the appellant has

made an application along with an as-made

application to the Corporation for regularization of the

impugned construction.

Mr. Mukherjee, learned advocate appearing for

the writ petitioner points out that such application for

regularization was made after the impugned order was

passed by the learned Single Judge.

Be that as it may, we are of the view that it will

really not prejudice any party if the Commissioner

considers and disposes of the application for

regularization made by the appellant herein in

accordance with law and the relevant regulations.

The third proviso to Section 177 of the Howrah

Municipal Corporation Act, 1980 reads as follows :-

"Provided also that the

Commissioner may by order, on

such terms and conditions and on

payment of such fees as may be

prescribed by regulations,

regularize the minor unauthorized

erection, or execution of any minor

work without sanction under this

Act, or minor deviation from the

sanctioned plan or execution of

any minor erection or work in

contravention of any sanctioned

plan under this Act or the rules or

the regulations made thereunder,

as the case may be :"

Mr. Mukherjee, learned advocate appearing for

the writ petitioner says that no regulations as

contemplated in the said proviso have yet been framed

and as such there is no guideline according to which

the Commissioner may exercise his power of

regularization. Mr. Bhattacharyya, learned advocate

appearing for the appellant disputes such contention.

Be that as it may, let the Commissioner take a

reasoned decision on the application of the appellant

for regularization of the impugned construction after

affording opportunity of hearing to the appellant, the

writ petitioner, any other concerned party and/or their

authorized representative. The Commissioner shall

decide the application himself and not delegate his

function to any other officer. The entire exercise shall

be completed within a fortnight from the date of

communication of this order to the Commissioner by

either of the parties. This time period is peremptory.

In the event, the Commissioner rejects the appellant's

application for regularization, naturally the

Corporation shall immediately proceed to implement

the demolition order in question.

We have not gone into the issue of whether or

not the appellant's construction is capable of being

regularized. The Commissioner is requested to take an

independent decision in accordance with law.

Needless to say, till a decision is taken by the

Commissioner in terms of this order, no coercive

action be taken by the respondents in respect of the

impugned construction.

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 860 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.)