Calcutta High Court
Sk Mahbub Hossain vs The State Of West Bengal And Ors on 19 June, 2025
Author: Soumen Sen
Bench: Soumen Sen
OD- 1
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO(P)/1/2024
IA NO: GA/5/2025, GA/6/2025
SK MAHBUB HOSSAIN
VS
THE STATE OF WEST BENGAL AND ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE SMITA DAS DE
Date : 19th June, 2025.
Appearance:
Mr. Ratul Das, Adv.
Ms. Anjushri Mukherjee, Adv.
...for the petitioner.
Mr. Sourav Chopudhuri, Adv.
Mr. Nilratan Banerjee, Adv.
...for addition of party in GA/5/2025 and
GA/6/2025.
Mr. Alak Kumar Ghosh, Adv.
Mr. Arijit Dey, Adv.
...for the KMC.
Mr. Somnath Bose, Adv.
...for the CESC Ltd.
Mr. Ashok Kumar Chakraborty, Ld.
Addl.Solicitor General,
Mr. Sukanta Chakraborty, Adv.
Mr. Tirtha Pathi Acharya, Adv.
...for the Union of India.
Mr. Kamalesh Jha, Adv.
Ms. Nabanita Chatterjee, Adv.
...for the added respondent nos.2 and 3.
Ms. Ipsita Banerjee, Adv.
Mr. Debangshu Dinda, Adv.
...for the State of West Bengal.
Sk. Md. Galib, Adv.
Mr. Siddique Mallik, Adv.
...for the Board of Auqaf.
1. The applicant claims to be a resident of premises no.166/H/79,
Keshab Chandra Sen Street, Kolkata-700009, under Borough-V of
Kolkata Municipal Corporation, where he has been residing since
1976. On 13th June, 2025, men and agents of Kolkata Municipal
Corporation affixed a notice dated 12th June, 2025 on the door of
the tenanted rooms of the petitioner and his brother wherefrom the
petitioner came to know that demolition of the unauthorised
building at the above premises will be carried out on and from 17 th
June, 2025 in terms of the order dated 22nd May, 2025. It is
submitted that he has a legal right to oppose the said demolition
proceeding as an occupier of the said respondent.
2. That on that basis an application was filed for setting aside of the
order dated 12th June, 2025.
3. Learned Counsel for the petitioner submits that persons similarly
placed that of the present applicant claiming themselves to be the
tenants of the disputed premises preferred an appeal before the
Municipal Building Tribunal being B.T. Appeal No.82 of 2023 and
the said appeal was dismissed with the following direction:
"That all the structures as mentioned in D-sketch and other
statement which has constructed without any sanctioned
building plan shall be demolished within 30(Thirty) days from the
date of passing of this judgment, in default the Kolkata Municipal
Corporation shall demolish the structure by his own and shall
realize the demolition charges from the Persons Responsible in
accordance with law.
That the Kolkata Municipal Corporation has the liberty to
realize the cost so imposed in this judgment upon the Appellants
in accordance with law."
4. Learned Counsel for the Kolkata Municipal Corporation has
opposed the prayer for addition of party and stay of the demolition
proceeding. It is stated on their behalf that the demolition
proceeding has already been commenced. The locus standi of a
tenant to oppose demolition is no more res integra in view of the
Division Bench judgment in Kumuda Sundari Properties
(Private) Ltd. Vs. Namdang Tea Co. Ltd. reported in AIR 1986
Calcutta 266, the Hon'ble Division Bench of this Court has held
and observed that the tenants have no right to make objection to
the sanction of the building plan.
5. The aforesaid decision was affirmed by another Co-ordinate Bench
in Om Prakash Saxena and Another vs. Dhirendra Nath Nag
and Others reported in AIR 1998 Calcutta 210, in which the
Hon'ble Division Bench answered the said issue in paragraphs 18
and 19 in the following words :
"18. The question as to whether the building plan submitted by
the appellant should be sanctioned or not is matter which
falls exclusively within the domain of Municipal Authorities.
While doing so, there cannot be any doubt whatsoever, it is
bound to take into consideration the provisions of the said
Act as also the question as to whether permission should be
granted to change the 'user' of the structure for which it was
sanctioned. At this juncture, we are of the opinion, that such
a question is merely academic and does not fall for our
consideration. The power of this Court in such matters is
very limited inasmuch as a writ petition would only be
maintainable if the threat alleged by the writ petitioners has
an immediacy and infringes the legal right of the petitioners.
We also do not find any force in the contention of Mr.
Chatterjee that in the instant case this Court following Olga
Tellis (AIR 1986 SC 180) (supra) should exercise its
jurisdiction inasmuch as the right of the petitioners as a
tenant of the appellant can be enforced before an
appropriate forum if and when as occasion arises therefor
and this Court cannot exercise its jurisdiction under Art. 226
of the Constitution of India only on surmises and
conjunctures.
19. For the reasons aforementioned we have no other alternative
but to hold that the writ petition was not maintainable and
the impugned judgment is, therefore, liable to be set aside.
Before parting with this case, however, we may record that
Mr. Kapoor has assured us that his client has no intention to
evict the writ petitioners immediately and forcibly."
6. Mr. Ghosh has relied upon a decision of a Co-ordinate Bench in
MAT 2279 of 2023 with IA No.CAN 2 of 2023 (Bijay
Biswakarma vs. Rajkumari Devi Singh & Ors.) decided on 28th
June, 2024, in which the aforesaid principle has been reiterated.
7. If the applicant has been inducted as a tenant or occupier in the
said premises, without disclosing such facts it would be open for
the applicant to sue the owners of the property both under the
criminal law and the civil law. Moreover, surprisingly, the owners
of the premises have not approached the Municipal Building
Tribunal opposing the demolition proceeding nor has filed any
representation challenging the action on the part of the Kolkata
Municipal Corporation.
8. However, on the prayer of learned Counsel for the petitioner, four
days' time is granted to the applicant to find out a suitable
accommodation and the demolition proceeding insofar as the
portion in the occupation of the present applicant is concerned
may not be demolished for four days.
9. In view thereof, the applications being IA No.GA/5/2025 and
GA/6/2025 stand dismissed.
10. However, there shall be no order as to costs.
(SOUMEN SEN, J.)
(SMITA DAS DE, J.)
s.pal
