Calcutta High Court (Appellete Side)
Dipak Modi vs The State Of West Bengal & Ors on 24 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 96
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 1148 of 2024
with
CAN 1 of 2024
Dipak Modi
-Vs-
The State of West Bengal & Ors.
For the Appellant : Mr. Saptangshu Basu, Sr. Adv.
Mr. Kuldip Mallick
Mr. Anil Choudhury
Md. Mohiuddin
For the State : Mr. Monoj Malhotra
Mr. Ejaz Hossain
For KMC : Mr. Alok Ghosh
Mr. Fazlul Haque
For the respondent No 8 : Mr. Rudra Prasad Motilal
Mr. Shubham Banerjee
For the Board of Auqaf : Md. Salahuddin
Md. Ahsanuzzaman
Md. Raziuddin
Heard on : 23.09.2024 & 24.09.2024
Judgment on : 24.09.2024
Joymalya Bagchi, J.:-
1. Learned senior Counsel for the appellant submits in the inspection
report Executive Engineer admitted that Corporation does not have
mechanism and infrastructure to ascertain exact age of the building.
Report records lease deed executed in 1974 and the entries in the
inspection book from second quarter in 1980-81 shows a two-storied
building at 70, Braun Fled Row and a one storied asbestos structure at 68,
Braun Fled Row. In 2006, demolition proceeding was initiated but the
records of the proceeding are not available. In such view of the matter,
initiation of a subsequent demolition proceeding in 2019 and demolition
order passed therein was wholly unwarranted. In 2021 appeal was
preferred against the said order which had been dismissed for default.
Application for restoration is pending but could not be taken up due to
absence of quorum in the Tribunal.
2. Learned Counsel for the Corporation submits on visual estimation
the engineer came to a finding that the three storied dwelling house at 70,
Braun Fled Row was not an old construction. Complaints had been made
with regard to illegal construction in 1996 and demolition proceeding in
2006 was initiated. This shows the three storied structure had been
constructed on or after 1996. No sanction plan with regard thereto is
placed on record. He also submits the appeal which had been filed in 2021
was hopelessly time barred. Accordingly, the demolition order is deemed to
have become final and binding.
3. Learned Counsel for the Auqaf Board submits the appellant has no
right, title or interest on the land. Lease deeds were unauthorisedly
executed in their favour by the concerned Mutawali who had not taken
permission from the Board.
4. We have considered the materials on record in the light of the
aforesaid submissions. Principal thrust of Mr. Basu's argument is that the
construction at 68 & 70, Braun Fled Row is an old one. It was in existence
prior to 1974 as would appear from the lease deed executed in 1974. Even
inspection book of 1980-81 records a two storied structure at 70, Braun
Fled Row and one storied asbestos structure at 68, Braun Fled Row.
According to him demolition proceeding undertaken in 2006 was dropped.
Demolition order passed in the subsequent proceeding suffers from
inherent defect as it does not distinguish between the earlier structure vis-
a-vis additions thereon.
5. Lease deeds dated 1964 and 1974 were placed before the inspecting
officer. Recitals in the 1964 deed record a dilapidated one storied brick
built structure at 68, Braun Fled Row. 1974 deed records a two storied
pucca remodelled building and an asbestos godown at 68 and 70, Braun
Fled Row. Lease deeds were executed by the Mutuwali who according to the
Auqaf Board did not have permission to do so. Civil proceedings were
instituted which, however, were dismissed due to lack of jurisdiction. Be
that as it may, execution of the lease deeds by the Mutuwali is not in
dispute. Recitals as well as the schedule in the 1974 deed show a two
storied pucca building and an asbestos structure at 68 and 70 Braun Fled
Row. Inspection book of second quarter of 1980-81 maintained by the
Corporation records a two-storied dwelling house at 70, Braun Fled Row
and a asbestos structure at 68, Braun Fled Row. In 1996, Aquaf Board
complained illegal constructions were being undertaken by the appellants
and in 2006 demolition proceeding in respect of a three storied structure
(G+2) was initiated. Records of the said proceeding are not available.
6. In this backdrop, writ petitioner/private respondent approached
this Court seeking demolition of the three storied structure. An Hon'ble
Single Judge directed initiation of fresh demolition in 2018. In terms of the
said order, demolition proceeding were initiated and a demolition order
came to be passed in 2019. In such view of the matter, appellant to fall
back on the earlier 2006 demolition proceeding and argue initiation of the
subsequent demolition proceeding was impermissible.
7. The other issue which has been strongly canvassed is that a two
storied structure was in existence prior to the promulgation of 1980 Act.
Mr. Basu, has relied on Section 414 (4) of the Calcutta Municipal Act, 1951
to submit that the structure is protected by operation of law. Section
414(4) of the Calcutta Municipal Act, 1951, inter alia, provides that a
structure existing for 12 years prior to issuance of the notice of demolition
of the said structure stands protected. However, demolition proceeding is in
respect of a three storied (G+2) structure at 68 and 70, Braun Fled Rows.
Lease deeds produced by the appellants and the entries in the inspection
book for the 2nd quarter of 1980-81 show a two-stories building was
standing at 70, Braun Fled Row and an asbestos shed was standing at 68,
Braun Fled Row. Bare comparison of the nature of the present structure
i.e. a three storied building with the previous structures standing on the
premises as per recitals in lease deeds and/or entries in the inspection
book leave no doubt that the demolition order pertains to a new structure
which cannot be protected by operation of law.
8. Moreover, the aforesaid documentary evidence corroborates opinion
of the Executive Engineer that the three storied building is not an old one
and is liable to be demolished in absence of a sanction plan. In light of the
aforesaid uncontroverted materials on record we are unwilling to accede to
Mr. Basu's prayer for further inspection by a qualified civil engineer with
regard to exact age of the building.
9. Finally it is argued the matter be adjourned as an application for
recalling order dismissing appeal is pending before the Tribunal. Period of
limitation to prefer appeal against the demolition order is 30 days, whereas
appeal was instituted after two years of the demolition order. It was barred
by limitation and no steps were taken. Tribunal issued show cause notice
upon the appellant which remained unanswered. Under such
circumstances appeal was dismissed for default.
10. We are of the opinion that dismissal of appeal for default is a mere
formality as the appeal was non est in law in the first place having been
filed after two years i.e. beyond the period of limitation. That apart, we
have given ample opportunity to the appellants to establish the building
was lawfully constructed. His defence that the unauthorised building is an
old one runs hollow for reasons that we have recorded hereinbefore.
11. Accordingly, we are of the opinion the Hon'ble Single Judge's order
directing implementation of the demolition order does not call for
interference.
12. Appeal is dismissed.
13. In view of dismissal of the appeal connected application being CAN 1
of 2024 is also dismissed.
14. There will be no order as to costs.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
sdas
