Calcutta High Court
Akbar Hussain And Anr vs The Kolkata Municipal ... on 17 November, 2023
OD-4
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/396/2023
WITH
WPO 1283 OF 2023
IA NO:GA/1/2023
IA NO: GA/2/2023
AKBAR HUSSAIN AND ANR.
VS
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE APURBA SINHA RAY
Date : November 17, 2023.
Appearance:
Mr. S. T. Mina, Advocate
Mr. Priyankar Das, Advocate,
....for appellants.
Mr. Alak Kumar Ghose, Advocate,
Mr. Swapan Kr. Debnath, Advocate,
...for KMC
Mr. Anand Farmania, Advocate,
Mr. Manoj Kr. Mondal, Advocate,
For State Respondent,
Mr. Sumitava Chakraborty, Advocate,
For respondent no. 8
THE COURT: GA No. 1 of 2023 is an application for
condonation of delay of 87 days in presenting the appeal. Causes
shown being sufficient, the delay is condoned and GA 1 of 2023 is
allowed.
This appeal is directed against a judgment and order dated
June 21, 2023, whereby the writ petition of the respondent no. 8
herein being WPO/1283/2023 was disposed of by a learned Judge
of this Court.
The respondent no. 8/writ petitioner approached the learned
single Judge praying for implementation of a demolition order
dated May 15, 2023, passed by the Executive Engineer
(Civil)/Building Department, Borough - VIII in respect of alleged
unauthorized construction made by the appellants herein, who
were private respondents in the writ petition. It was submitted
before the learned Judge that the appellants herein have
constructed three additional floors over and above two sanctioned
floors.
The appellants submitted before the learned Judge that an
appeal has been filed on June 16, 2023, against the concerned
demolition order, before the Municipal Building Tribunal being B.
T. Appeal No. 131 of 2023.
The learned Judge disposed of the writ petition with the
following observations and directions:
"As it appears that the order seeking implementation
has been carried in appeal by the person responsible,
accordingly, the Municipal Building Tribunal, Kolkata
Municipal Corporation is requested to decide the appeal on
application filed under Section 5 of the Limitation Act
seeking condonation of delay in preferring the appeal.
It will be open for the petitioner to follow up the matter
before the appellate forum.
In the event the person responsible i.e. the private
respondents herein fail to obtain stay of the order of
demolition by 13.10.2023, then it will be open for the
Corporation to take steps for implementation of the order of
demolition in accordance with law."
Being aggrieved the private respondents in the writ petition
have come up by way of this appeal.
Learned Advocate for the appellants says that the learned
single Judge ought not to have directed that in the event the
appellants fail to obtain stay of operation of the demolition order by
October 13, 2023, then the Corporation would be at liberty to take
steps for implementation of the demolition order. He says that no
step should be taken to give effect to the demolition order till the
statutory appeal is decided on merits by the Tribunal.
Learned Advocate for the respondent no. 8/writ petitioner
says that at least seven hearings have been held before the
Tribunal. Each time the appellants have obtained adjournment.
Nothing has progressed on merits. Even the application for
condonation of delay is yet to be disposed of. In the eye of law
there is no appeal today since the delay has not yet been condoned
and the appeal has not yet been admitted.
Mr. Ghosh, learned Advocate for the Kolkata Municipal
Corporation says that after October 13, 2023, the festive season
started and accordingly KMC could not take further steps for
implementation of the demolition order. However, KMC will abide
by whatever direction this Court passes.
In principle, we see no infirmity in the order under appeal.
The learned Judge, having noted that an appeal has been carried to
the Municipal Building Tribunal challenging the demolition order,
granted about four months' time to the appellants herein to obtain
interim order of stay of operation of the demolition order. We find
the impugned order to be a perfectly fair, well-balanced and just
order. We, therefore, do not interfere with the said order.
However, on humanitarian grounds, we extend the time for
the appellants to obtain, if possible, interim order of stay of
operation of the demolition order in question till the end of this
year i.e., December 31, 2023. We clarify that in the event the
appellants are unable to obtain such interim order or have the
order of demolition set aside upon hearing of the appeal within the
time period indicated by us, KMC shall implement the demolition
order in accordance with law. In view of this order, the appellants
will be at liberty to approach the Tribunal for pre-poning the next
date of hearing, which we are told is January 8, 2024.
Learned Advocate for respondent no.8/writ petitioner says
that since the demolition order was not implemented even after
October 13, 2023, as was directed by the learned Single Judge in
the present proceeding, the writ petitioner herein has filed a second
writ petition which is pending before the learned Single Judge. In
view of the order that we have passed today, learned Advocate for
respondent no.8 says that nothing survives in the second writ
petition being WPO/1769/2023. He is right. Accordingly,
WPO/1769/2023 is treated as on the day's list and is disposed of.
We clarify that we have not gone into the merits of the case
and the Tribunal shall consider the matter without being
influenced by any observation made in this order or in the order of
the learned Single Judge which is impugned before us.
Both the appeal and the application stand disposed of.
Since we have not called for affidavits, the allegations made in
the stay application are deemed not to have been admitted by the
respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
dg/
