Kolkata Municipal Corporation & ... vs Sk. Md. Sharfuddin
2023 Latest Caselaw 7023 Cal

11.10.2023
Item No.29.
Court No.6.
   AB
                              M.A.T. 1926 of 2023
                                      With
                               I A CAN 1 of 2023

                   Kolkata Municipal Corporation & Others
                                     Vs
                            Sk. Md. Sharfuddin

                    Mr. Alok Kumar Ghosh,
                    Ms. Ina Bhattacharya ...for the Appellants.


                    A judgment and order dated September 12,

              2023, whereby the writ petition of the respondent

herein, being WPA 21821 of 2023, was disposed of by

a learned Single Judge of this Court, is under

challenge in this appeal, at the instance of Kolkata

Municipal Corporation (in short "KMC").

In short, the material facts are that the writ

petitioner obtained sanction for constructing a G+4

building but in fact ended up constructing a G+7

building along with further construction on the roof of

the 7th floor. Action sought to be taken by KMC under

Section 400(8) of the Kolkata Municipal Corporation

Act, 1980 (in short the "KMC Act") was challenged by

the writ petitioner before the learned Single Judge.

The learned Judge, while recording the written

opinion of the Mayor-in-Council that the structure in

question is extremely dangerous and may collapse at

any time leading to accident resulting in loss of human

life and property, directed the Commissioner or his

delegate to take immediate steps for dealing with the

unauthorized construction but "after giving a

reasonable opportunity of hearing to all the necessary

parties."

Mr. Ghosh, learned Senior Counsel representing

KMC says that in effect, the learned Judge has

nullified the action taken by KMC under the

emergency provision of Section 400(8) of the KMC Act,

which was necessary in the facts of this case. In effect,

the learned Single Judge has directed KMC to proceed

under Section 400(1) of the KMC Act. This, the learned

Judge ought not to have done, in spite of noting that

the unauthorized structure is in a dangerous condition

and requires immediate demolition.

From the affidavit of service filed in Court today,

we find that the respondent/writ petitioner has been

served. However, nobody appears for the respondent.

We are satisfied that a prima facie case has been

made out by KMC. Accordingly, there shall be stay of

operation of the order impugned till two weeks after

the ensuing puja vacation.

Let this matter be listed once again on 18.10.23.

Learned Advocate on record for the appellants shall

serve a copy of this order on the respondent as well as

the learned Advocate, who represented him before the

learned Single Judge.

It is also clarified that without the leave of this

Court, no further coercive action will be taken in

respect of the impugned structure. Further, no further

construction shall be raised by the respondent/writ

petitioner and no third party interest will be created in

respect of the impugned structure.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)