Haru Dutta vs Dhiraj Ali @ Md. Akash & Ors
2024 Latest Caselaw 5183 Cal

Calcutta High Court (Appellete Side)

Haru Dutta vs Dhiraj Ali @ Md. Akash & Ors on 7 October, 2024

Author: Joymalya Bagchi

Bench: Joymalya Bagchi

Sl. No.19



                IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Gaurang Kanth



                             MAT 1951 of 2024
                               (CAN 1 of 2024)

                                  Haru Dutta
                                     -Vs-
                        Dhiraj Ali @ Md. Akash & Ors.


For the Appellant       :     Mr. R. Chakroborty, Adv.,
                              Mr. A. Z. Mondal, Adv.,
                              Mr. Avirup Mondal, Adv.,
                              Ms. Shahnaz Parveen, Adv.


For the State           :     Mr. Amal Kr. Sen, AGP,
                              Mr. Lal Mohan Basu, Adv.


For the KMC             :     Mr. Srijan Nayek, Adv.
                              Mr. Atis Kr. Biswas, Adv.


Heard on                :     07.10.2024


Judgment on             :     07.10.2024


Joymalya Bagchi, J. :-

1.    With consent of the parties, matter is taken up for hearing today.
                                     2

2.   By the impugned order, appellant was directed to add new

     incumbent as contemnors. Contemnors were also directed to

     demolish the unauthorized construction by the adjourned date,

     failing which they were directed to be physically present.

3.   Mr.   Chakraborty   contends    his   clients   have   challenged   the

     demolition order before the Municipal Building Tribunal under

     Section 400(3) of the Kolkata Municipal Corporation Act. He

     contends direction to demolish be stayed.

4.   We have considered the materials on record. By order dated

     28.03.2022, Hon'ble Single Judge directed the competent authority

     of Kolkata Municipal Corporation to inspect the structure and after

     giving opportunity of hearing to pass a reasoned order. The order

     further clarified that the hearing officer would only look into the

     validity of the construction i.e. whether the construction was in

     absence of a sanctioned plan or was in deviation of sanctioned plan

     or in violation of rules and nothing more.

5.   The order did not direct the respondent authorities to demolish the

structure, if the same is found to be unauthorized. This direction

came to be passed in the contempt proceeding. It is settled law that

the original order cannot be improved or modified in contempt

jurisdiction.

6. Under such circumstances, we set aside the impugned order to the

extent it directs the contemnors to demolish the unauthorized

structure until further orders.

7. This order shall not stand in way of Corporation authorities to

independently exercise their powers in accordance with law.

8. Appeal is allowed to the aforesaid extent. Connected application is

disposed of.

9. There shall be no order as to costs.

10. Photostat certified copy of this judgment, if applied for, be given to

the parties on compliance of all formalities.

I agree.

(Gaurang Kanth, J.) (Joymalya Bagchi, J.)

as