Calcutta High Court
Abhudaya Realtors Pvt. Ltd. & Anr vs Kolkata Municipal Corporation & ... on 26 September, 2023
1
OD-1
ORDER SHEET
IA GA No.1 of 2023
IA GA No.2 of 2023
WPO No.393 of 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
ABHUDAYA REALTORS PVT. LTD. & ANR.
VS
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date:26th September, 2023.
Appearance:
Mr. Arindam Banerjee, Adv.
Mr. Sourojit Dasgupta, Adv.
Mr. Ashis Kr. Mukherjee, Adv.
Mr. Saurabh Prasad, Adv.
...for Petitioners.
Mr. Alak Kr. Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
Mr. Dwijadas Chakraborty, Adv.
...for KMC.
Mr. Nilanjan Bhattacharjee, Adv.
Mr. Brajesh Jha, Adv.
Mr. Arpan Guha, Adv.
Ms. Megha Datta, Adv.
Mr. Neel Chakraborty, Adv.
...for Applicants/added Respondents.
Mr. Yash Vardhan Deora, Adv.
...for State-respondent.
The Court:-The direction passed by this Court on 26th July, 2023 has
not been complied with by the Kolkata Municipal Corporation.
An application has been filed by two individuals claiming to be the
residents of the locality and further claiming to celebrate festival in the
temple which has been constructed on the public land.
On the earlier occasion when the matter was taken up for
consideration by the Court, certain persons sought to intervene in the writ
petition with the submission that the temple ought not to be disturbed as it
has been in existence for quite some time and the same is not causing any
obstruction either to the public or to the petitioners.
The Court refused to accept the submission of the intervener with the
observation that the right to faith, belief and worship does not entitle
anybody to raise construction on the public land without any permission
from the authority.
The Court took into the note of all the submissions made on behalf of
the intervener and observed that any sympathy or leniency to deal with
such offending structure is bound to have a snow balling effect and the
same will lead to eating away of footpaths. The religion card ought not to be
played to protect unauthorized structures constructed over public land.
The Court expected that divine sense will prevail and the worshippers will
take voluntary steps for removing the structure to some other place.
Time to comply the direction passed by the Court has expired.
An appeal was carried from the order passed by this Bench by the
interveners being APOT No.288 of 2023 along with IA No.GA/1/2023,
GA/2/2023, GA/3/2023 and the Hon'ble Division Bench by an order dated
14th September, 2023 took note of the judgment delivered by the Hon'ble
Supreme Court that the temple or mosque or any religious building
constructed prior to 29th September, 2009 even on public footpath or public
land, cannot be demolished as such, but it can be relocated.
After noticing the aforesaid decision of the Hon'ble Supreme Court, the
Hon'ble Division Bench declined to entertain the appeal. The Hon'ble
Division Bench was, however, pleased to observe that if an appropriate
application is filed before the learned Single Bench, then prayer may be
made and the application shall be disposed of before the order of demolition
being implemented.
I have heard the submissions made on behalf of all the interveners.
The points urged before the Court today appears to have been dealt with by
the Court on the earlier occasion. I am not convinced with the submissions
made by the interveners that the unauthorized structure constructed over
the public land without obtaining any sanction from the authority, be
permitted to stand in view of the order passed by the Hon'ble Supreme
Court.
The Court on the last occasion granted time to the worshippers to
remove the structure somewhere else so that the public land may be freed
from the obstruction caused because of the temple. The worshippers, for
the reasons best known, failed to relocate the temple.
Learned advocate representing the interveners submits in Court that
the temple has not been relocated despite opportunity granted to the
worshippers. The same implies that they are not willing to relocate the
temple.
The Court ought not to protect structures constructed unauthorizedly
over public land. On the contrary, the Court ought to ensure that the
public land is kept free from any sort of unauthorized encroachment be it a
temple or otherwise.
Accordingly, the Court is left with no other option but to direct the
Corporation to cause demolition of the unauthorized structure constructed
on the public land at the earliest, but positively within a period of four
weeks from date and report compliance before this Court on the adjourned
date.
Officer-in-Charge, Hastings Police Station is directed to render all
necessary help and assistance to the men and agents of the Kolkata
Municipal Corporation at the time of demolition of the unauthorized
structure.
Applications being GA No.1 of 2023 and GA No.2 of 2023 stand
dismissed.
List the writ petition on 17th November, 2023.
Affidavit of service filed in Court today is taken on record.
Urgent certified photocopy of this order, if applied for, be supplied to
the parties expeditiously on compliance of usual legal formalities.
(AMRITA SINHA, J.)
nm
