Calcutta High Court (Appellete Side)
Suzana Anthony & Ors vs Sk. Ziauddin & Ors on 2 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 9
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 1146 of 2024
CAN 1 of 2024
CAN 2 of 2024
Suzana Anthony & Ors.
Vs
Sk. Ziauddin & Ors.
For the Appellants : Mr. R N Chakraborty
Mr. M Ahmed
Ms. Arpita Patra
Ms. Amrita De
For the writ petitioner/
Respondent no. 1 : Mr. Soumitra Deb
Sk. Md. Wasim Akram
For the State : Mr. Joydip Banerjee
Mr. Prantik Gorai
For the KMC : Mr. Biswajit Mukherjee
Ms. Sima Chakraborty
Heard on : 02.09.2024
Judgment on : 02.09.2024
Joymalya Bagchi, J.:-
1. Appellants are the occupants of third and fourth floor which were
unauthorisedly constructed on premises no. 21A Hossain Shah Road, Ward
no. 79 P.S Ekbalpur.
2. On 26.11.2018 engineers attached to Borough IX noted the said
third and fourth floor were being illegally constructed. A stop work notice
was issued upon the persons responsible for the construction. FIR under
section 401A of the Kolkata Municipal Corporation Act (for short KMC Act)
Act was registered. Inspite of stop work notice, the illegal construction
continued and proposal was placed before the Mayor-in-Council for
invoking emergency power under section 400(1) of the KMC Act for
demolition of the unauthorised construction.
3. After considering the proposal, Mayor-in-Council resolved as follows:
"Considering the facts and circumstances as stated above in the
departmental report and upon due consideration of other relevant
issues, it is resolved that since the person responsible continued
with unauthorised construction as indicated in the précis of the
agenda item in spite of departmental action for stoppage of such
unauthorised construction and since such unauthorised construction
is unsafe and may lead to accident resulting in loss of human life
and property, appropriate action towards demolition of such
unauthorised construction be taken forthwith under section 400(8) of
KMC Act 1980 with the help of local administration." (emphasis
supplied)
4. In terms of the resolution, part demolition was undertaken in 2000
but could not be completed due to local resistance. The matter was reported
to Ekbalpore Police Station vide GD entry no. 1526 dated 17.2.2020.
5. As demolition proceeding could not be completed and the remaining
unauthorised portion posed risk to life and property, one of the occupants
occupying the lawful portion of the building took out an instant writ
petition seeking direction upon the Corporation to complete the demolition
process. Accordingly, the Hon'ble Single Judge directed the Corporation to
demolish the entire unauthorised portion of the building. Officer-in-Charge,
Ekbalpore Police Station was directed to render assistance and remove
occupiers from the unauthorised portion to enable its demolition. In light of
the indolent conduct of officers of the Corporation who had failed/neglected
to implement the demolition order for four years, directions were also
passed to take steps against them.
6. At this juncture the appellants who are the occupants of the
unauthorised portion of the building sought leave to appeal against the
aforesaid order.
7. Leave is granted.
8. CAN 1 of 2024 is, accordingly, allowed.
9. Mr. Chakraborty for the appellants contends demolition order was
not served upon them. No opportunity of hearing was given to them under
section 400(1) of the KMC Act. No case of extreme urgency necessitating
invocation of the drastic provision under section 400(8) of the KMC Act has
been made out. Procedural safeguards with regard to passing of the order
under section 400(8) of the KMC Act have not been followed. In fact, order
under section 400(8) of the KMC Act was passed after issuance of Municipal
Commissioner's circular no. 01 2019-20 dated 2nd April 2019 wherein the
assistant engineers were threatened with suspension if they do not take up
the matters urgently for demolition of additional floors under section 400(8)
of the KMC Act. The circular, in Mr. Chakraborty's estimation amounted to
usurpation of power of the Mayor-in-Council by the municipal
commissioner himself.
10. In reply Mr. Mukherjee submits additional third and fourth floor are
wholly unauthorised. A stop work notice was issued to the persons
responsible for such illegal construction but they continued with such
unauthorised construction. FIR under section 401A of the KMC Act was
registered. In this backdrop proposal was made before the Mayor-in-Council
that the construction was wholly unauthorised and its continuation
exposes public to several hazards like fire hazards and environmental
hazards. Considering the proposal the Mayor-in-Council came to a finding
that the direction was unsafe and endangered human life and property.
Appellants were not occupying the unauthorised structures. Subsequent to
the order of demolition did the appellants came into occupation of the
unauthorised structures. They are not responsible for the unauthorised
construction and thereby entitled to hearing under section 400(1) of the
KMC Act. At its height, they have an opportunity to seek adequate time to
vacate the unauthorised premises.
11. We have considered the rival submissions of the parties. Mr.
Chakraborty strenuously argues the demolition order was prompted by the
Municipal Commissioner's circular no. 01 2019-20 dated 2nd April 2019.
12. In support of his submission, he argues by the said circular
municipal commissioner illegally vested the power of the Mayor-in-Council
upon the assistant engineer for demolition of additional floors under section
400(8) of the KMC Act.
Municipal Commissioner's circular no. 01 2019-20 dated 2nd April
2019 reads as follows :
"After detection of unauthorised construction of addition of one or
more floors in any premises in KMC area, the concerned Sub-Assistant
Engineer or Assistant Engineer should issue stop work notice under section
401 of the KMC Act 1980 followed by intimation to the local police station.
The concerned Sub-Assistant Engineer or Assistant Engineer in turn shall
bring it to the notice of Ex/ Engineer (Building) or Dy. Chief Engineer
(Building) along with Demolition Sketch Plan without any delay.
Concerned Assistant Engineer with prior approval of Ex. Engineer
(Building) or Dy. Chief Engineer (Building) will file FIR under section 401A of
the KMC Act 1980 if the work is continued without paying heed to the stop
work notice. Ex Engineer (Building) or Dy. Chief Engineer (Building) of the
concerned Borough should take up the matter urgently for demolition of the
additional floors under section 400(8) of the KMC Act 1980 with the approval
of the authority if the unauthorised floor area exceeds 10 Sq. M."
13. A perusal of the circular would not persuade us to subscribe to Mr.
Chakraborty's submissions. The circular is in the nature of a reminder to
assistant engineers that wherever unauthorised construction of one or more
floor exceeding 100 sq. meter is detected, FIR under section 401A of the
KMC Act is registered and illegal work is continuing inspite of issuance of
stop work notice, the matter must be urgently placed for approval of
authority concerned for demolition. Needless to mention the authority
concerned is none but the Mayor-in-Council. In such view of the matter the
circular cannot be read as understood to usurp discretion of the Mayor-in-
Council to invoke the drastic provision for demolition under section 400(8)
of the KMC Act and vest it upon the assistant engineers. On the other hand
it seeks to put indolent engineers on notice that they would face
disciplinary proceeding if they do not initiate urgent steps where
unauthorised construction of additional floors are being built
notwithstanding the stop work notice and registration of FIR. The circular
does not confer independent right on the engineers to pass orders under
section 400(8) of the KMC Act dehors the Mayor-in-council.
14. Factual matrix of the case would also lead us to the same inference.
Upon noticing unauthorised construction of third and fourth floor without
sanction plan, the assistant engineer issued stop work notice and lodged
FIR under section 401A of the KMC Act against persons responsible for the
construction. Notwithstanding the stop work notice, the unauthorised
construction continued. This factual matrix leaves no doubt in one's mind
with regard to requisite urgency to invoke the drastic provision for
demolition under section 400(8) of the KMC Act. Accordingly, the proposal
was placed before the Mayor-in-Council, inter alia, stating that the
unauthorised construction if allowed to stand would create several hazards
including fire hazards and environmental hazards. The Mayor-in-Council
noted inspite of issuance of stoppage of unauthorised construction the
persons responsible continued the unauthorised construction of additional
floors and recorded its satisfaction that the unauthorised construction was
unsafe and may lead to accidents resulting in loss of lives human life and
property. Accordingly, the Mayor-in-Council resolved to pass demolition
order under section 400(8) of the KMC Act. Demolition order was passed in
2019 and partly executed in 2020. However, demolition of the entire
unauthorised construction could not be completed due to local resistance
and the matter was reported to police. Taking advantage of the illegal
resistance to execution of the demolition order, the appellants came into
possession of the unauthorised structure. These circumstances lead to the
irresistible conclusion that the appellants were aware of the illegality of the
construction and had made an opportunistic move to shift to the
unauthorised portion of the building and thereby hinder the demolition
process.
15. Admittedly, the appellants were not the persons responsible for the
unauthorised construction. They have come into possession of the
unauthorised construction after demolition order had been partly executed.
Section 400(1) of the KMC Act inter alia provides for demolition of
unauthorised building after giving notice and opportunity of hearing to the
person at whose instance the unauthorised building had been erected. The
said provision fell for interpretation in Bijay Biswakarma Vs. Rajkumari
Devi Singh & Ors.1 wherein a co-ordinate Bench after considering the
relevant law on the subject came to a finding that an occupant who is not
responsible for erection of the unauthorised building is not entitled to
hearing under the aforesaid provisions of law. Appellants are subsequent
occupants of the unauthorised structure in respect of which the demolition
order had already been issued and partly executed. By no stretch of
imagination they can argue they were deprived of opportunity of hearing
and principles of natural justice had been violated so far as they are
concerned. At this belated stage appellants who had come into possession
of the remaining unauthorised structure which had survived cannot assail
MAT 2279 of 2023
the legality of the demolition order under section 400(8) of the KMC Act
passed in 2019.
16. Be that as it may, Mr. Chakraborty as a last ditch effort refers to the
demolition order and submits the decision to invoke section 400(8) suffers
from jurisdictional error as it had not been taken by the Mayor in Council
but the mayor himself. In view of the submission and to satisfy our
conscience whether the demolition order directed to be implemented suffers
from patent lack of jurisdiction, we called upon Mr Mukherjee to produce
the proposal and the resolution of the Mayor-in-Council to demolish the
unauthorised path. Necessary documents have been placed before us which
show that resolution was adopted by the Mayor-in-Council on the strength
of the proposal given by the engineer concerned and the said decision does
not suffer from inherent lack of jurisdiction.
17. In view of the aforesaid discussion, we are of the opinion appeal is
wholly unmerited and the same is dismissed.
18. There shall be no order as to costs.
19. Urgent Photostat certified copy of judgment, order if applied for be
given to the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
