Rohit Choudhary & Anr vs Ramnarayan Ray & Ors
2023 Latest Caselaw 6079 Cal

12.09.2023
Item No.03
Court No.6.
    S. De
                               M.A.T. 1757 of 2023
                                        With
                               I.A. No. CAN/1/2023
                               I.A. No. CAN/2/2023
                               I.A. No. CAN/3/2023

                              Rohit Choudhary & Anr.
                                        Vs
                              Ramnarayan Ray & Ors.

                    Mr. Arindam Banerjee,
                    Ms. Sinthia Bala,
                                      ...for the appellants.
                    Mr. Ayan Banerjee,
                    Mr. Soumo Chaudhury,
                                ...for the writ petitioner/respondent.

Mr. Animesh Paul, ...for the respondent nos. 9&10.

In re: I.A. No. CAN/3/2023

This is an application for leave to appeal against

a judgment and order dated July 27, 2023 whereby

WPA 22064 of 2017 was disposed of by a learned

Single Judge of this Court. The writ petition was filed

by the respondent no.1 herein.

The applicant was not a party to the writ

petition. He says that he is residing in a flat in the

building, parts of which have been ordered to be

demolished. He also claims to be the owner of the said

flat. He says that he should be allowed to challenge

the learned Single Judge's order which directs

implementation of the demolition order.

Mr. Ayan Banerjee, learned advocate appearing

for the respondent no.1/writ petitioner, strongly

opposes the prayer for leave to appeal. He says that

the applicant purchased the flat in question one year

after the demolition order was passed by the

Municipality. Hence, he has no right to be heard by

the Municipality and consequently has no locus standi

to maintain any appeal against the order of the

learned Single Judge. The demolition order was

challenged by the owner of the building in question

before the competent Civil Court. The suit was

dismissed for default.

Having considered the rival contentions of the

parties, we are of the view that whether or not the

applicant has the right to be heard by the Municipality

shall be decided later. Since admittedly, he physically

occupies a flat in the building in question, the

demolition order is likely to affect him adversely.

Accordingly we grant the applicant leave to

appeal.

I.A. No. CAN/3/2023 is disposed of.

In re : I.A. No. CAN/1/2023

This is an application for condonation of

delay of eleven days in filing the appeal. Causes

shown being sufficient, the delay is condoned.

I.A. No. 1 of 2023 is, accordingly, disposed of.

        In   re   :   MAT     1757   of   2023   &    I.A.   No.

CAN/2/2023.

From the affidavit of service filed in Court today,

it appears that the Municipality has been served.

However, nobody appears for the Municipality.

The appellants apprehend that the demolition

order will be executed any day. The appellants say

that the demotion order which is sought to be

implemented, is without jurisdiction. Hence, the same

can be assailed at any stage and in any proceeding,

since it is a nullity.

The respondent no.1/writ petitioner says that

what was disclosed before the learned Single Judge

was only communication of the order of demolition

passed by the Board of Councillors. Hence, there is

nothing wrong with the actual demolition order and

the same is not devoid of jurisdiction. The actual

demolition order is not before us presently.

Mr. Ayan Banerjee, learned advocate for the

respondent no.1/writ petitioner says that the

Municipality can produce that order. However, the

Municipality is not there before us today.

List the matter once again on September 19,

2023.

On that day the Municipality shall produce the

records of the case including the demolition order. If

the parties approach the Municipality requesting for

copies of the demolition order, the same shall be

supplied to them.

Let no coercive steps be taken in respect of the

impugned construction till September 21, 2023, or

until further orders whichever is earlier.

Learned advocate-on-record for the appellants

shall forthwith communicate this order to the

Municipality.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)