Calcutta High Court (Appellete Side)
Sher Ali & Anr vs Maqsood Alam & Ors on 15 September, 2023
1.
15-09-2023
(Ct. no.06)
debajyoti
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
MAT 1812 of 2023
+
IA NO:CAN/1/2023
+
CAN/2/2023
Sher Ali & Anr.
Vs.
Maqsood Alam & Ors.
Mr. Ranajit Chatterjee,
Mr. Aniruddha Mitra
... For the Appellants.
Mr. Alak Kumar Ghosh,
Mr. Subhrangsu Panda,
Ms. Ina Bhattacharyya
... For K.M.C.
Mr. Sirsanya Bandopadhyay,
Mr. Arka Kumar Nag
... For the State.
Re : CAN/1/2023
The applicants pray for leave to appeal against
an order dated September 05, 2023 passed in WPA
8476 of 2022, filed by the respondent no.1 herein. By
the said order, which is interim in nature in the sense
that the writ petition is still pending before the learned
Single Judge and has been directed to be listed on
September 21, 2023, the learned Judge has called for
an explanation from Kolkata Municipal Corporation
authorities as to why demolition of the concerned
unauthorized structure has not been carried out
within the time limit specified by the Court.
The applicants are not parties to the writ
petition. They say that they are interested in the
concerned construction and were in occupation
thereof. They have been shifted to another place by
the owners/developers with a promise to rehabilitate
them in the newly constructed building. They are
parties interested and aggrieved by the demolition of
the concerned structure. They should be allowed to
challenge the learned Single Judge's order.
We take a lenient view and permit the applicants
to present the appeal. CAN 1 of 2023 is, thus,
disposed of.
Re : MAT/1812/2023 & CAN/2/2023
By consent of the parties, the appeal and the
connected application are taken up together for
hearing.
The appellants say that they were not aware of
the demolition order passed by Kolkata Municipal
Corporation. Only when the demolition activities
started, they came to know of the order. They reside
elsewhere and not in the building which is now being
demolished by the Corporation. They have a right to
prefer an appeal against the demolition order before
the Municipal Building Tribunal under Section 400(3)
of the Kolkata Municipal Corporation Act, 1980. The
demolition activities are being carried-on on a day-to-
day basis. The demolition should be stayed and they
should be allowed to challenge the demolition order
before the Tribunal.
We have not called upon the respondents to
make submission.
We see that the demolition order was passed by
the Corporation on November 23, 2022. From a
report filed by the concerned Assistant Engineer and
Executive Engineer before the learned Single Judge, it
appears that first demolition of the impugned
structure took place on November 30, 2022 and
December 01, 2022.
The learned Single Judge, by an order dated
July 04, 2023, had directed the Corporation to
conclude the demolition work by August 31, 2023.
On September 05, 2023, i.e., the date on which
the impugned order was passed, a report was filed
before the learned Single Judge indicating that the
next date of demolition is September 12, 2023. No
reason was furnished as to why the demolition was
not completed by August 31, 2023. Accordingly, the
learned Judge called for an explanation from the
Corporation.
We are told that demolition activity is going-on
on day-to-day basis. We make no observation as to
whether or not the appellants have a right to prefer
statutory appeal under Section 400(3) of the KMC Act.
Mr. Ghosh, learned counsel, representing the
Corporation, says that the appellants do not have
such right as they are not "persons responsible" for
the impugned construction and/or not connected
with the impugned construction directly or indirectly
in any manner. At best, the appellants are claiming
tenancy right in respect of the impugned
construction. Tenants do not have any right of
hearing or right of appeal against demolition order.
Mr. Ghosh relied on a Division Bench judgment of
this Court in the case of Ram Awatar Agarwal & Ors.
Vs. Corporation of Calcutta & Ors., reported at AIR
1982 Calcutta 314.
We do not go into the above questions. We are
not satisfied that the appellants have any lawful right,
title or interest in respect of the concerned building or
any portion thereof. The appellants sought to rely on
copies of their Aadhaar Cards and copies of rent
receipts. The Aadhaar Cards must have been issued
sometime in the year 2012 or thereabout. Although
the Aadhaar Cards show the address as that of the
present building in question, they do not establish
that the appellants have been residing in the
concerned building in recent times or they have any
lawful interest in respect of the building or any
portion thereof. The so-called rent receipts are highly
suspect documents and in any event, pertain to the
years 2018-2019. Nothing contemporaneous has
been produced to try and demonstrate that they have
any manner of lawful right or interest in respect of the
concerned building.
Learned advocate for the appellants places
reliance on an order dated June 28, 2023 passed by
this Court in MAT 1152 of 2023 to buttress his
submission that a breathing space should be granted
to the appellants enabling them to approach the
Municipal Building Tribunal with an appeal against
the demolition order. The facts of that case were
completely different from the facts of the present case.
In that case, a Special Officer appointed by us, visited
the premises in question and found persons in
occupation thereof. Accordingly, we had granted
breathing space to such occupants to approach the
appropriate forum challenging the demolition order.
However, in the present case, as we have indicated
above, the appellants have not been able to show that
they were in occupation of the building in question in
the recent past.
For the reasons aforestated, we are not inclined
to entertain this appeal, which, accordingly, is
dismissed along with the connected application.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties on compliance
of all necessary formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
