Babu Ali and Others vs Kolkata Municipal Corporation and Others

Samapti Chatterjee, J.

Challenging the impugned order dated 17th December, 2012 passed by the Special Officer (Building), Kolkata Municipal Corporation in Demolition Case No. 16-D/Bldg./I/12-13 Br. I, in respect of premises No. 83J, Khudiram Bose, P.S.-Ultadanga, Ward No. 3, Borough-I, Kolkata-700 037.

The petitioners filed the instant writ petition and obtained an interim order of stay of operation of the demolition order dated 17.12.2012 till disposal of this writ petition.

The petitioners'' case in brief is as follows:--

"One Abdur Rashid and Md. Islam, two brothers were inducted as joint Thika tenant in respect of a vacant land measuring about three cottahs seven chittaks 13 Sq. ft., situated at 83J, Khudiram Bose Sarani under P.S.-Ultadanga, Kolkata-700 037 in the year 1951 by the land lord Md. Habib (since deceased) father of the private respondent No. 8. The said Abdur Rashid and Md. Islam used to pay tax to the corporation in respect of their occupied share of land. After demise of Abdur Rashid and Md. Islam their legal heirs/the petitioners have been enjoying the said property. In the meantime, the petitioners constructed a G+3 storied building on the said land without having any sanction plan obtained from Kolkata Municipal Corporation.

That being the position, the respondent No. 8 being the landlord filed a writ petition being W.P. No. 8244 (W) of 2012 before this Hon''ble Court sometime in the year 2012 for demolition of the unauthorised construction illegally made by the petitioner on the land of the landlord, respondent No. 8. The said writ petition was disposed of by this Hon''ble Court directing the respondent the Executive Engineer (Building), Kolkata Municipal Corporation to initiate appropriate proceedings under the Kolkata Municipal Corporation Act, 1980 within a fortnight from the date of presenting the copy of that order. Pursuant to the said order the corporation disposed of the same by passing a reasoned order after given an opportunity of hearing to the petitioner and the private respondent Nos. 8 to 12.

In the said order passed by this Court the Special Officer (Building) on 17th December, 2012 passed a reasoned order for demolition of unauthorised construction within fifty days from the date of communication of that order. In default K.M.C. is at liberty to demolish the same at the cost and at risk of the petitioners.

Challenging the said order the petitioners filed an appeal before the Building Tribunal and also filed an application for stay of operation of the impugned order dated 17th December, 2012. Learned Tribunal rejected the petitioners'' prayer for stay of operation of the demolition order passed by the Special Officer (Building) against the rejection of stay of operation of the said order dated 17th December, 2012 the petitioner filed the instant writ petition and obtained some conditional interim order inter alia that ".....if in the meantime, the petitioners deposit a sum of Rs. 20,00,000/- (rupees twenty lakh) by way of security towards the costs of demolition of the said premises in the case they fail to succeed in the writ petition with the learned Registrar General of this Court and vacate the said premises and deliver the keys of the said premises to the Executive Engineer, Borough-I, Kolkata Municipal Corporation on or before 10th August, 2013, interim order passed on 3rd July, 2013 will continue till the disposal of this writ petition.".

In the said order, learned Advocate Mr. Rudranil De, was appointed by this Court on 10th September, 2013 for holding an inspection at the building site for ascertaining as to whether any old kachha structure exists in the said premises and further ascertain as to whether such old structure is beyond the subject matter of demolition as per the demolition order which is under challenge before this Court or not and to submit a report before this Court on 19th July, 2013. Thereafter, on 19th July, 2013 learned Advocate, Special Officer submitted his report before this Court. From the report it is revealed that on the said plot of land partly G+3 and partly G+2 two pacca constructions with brick and cement were made with marble fittings floor, measuring 562 Sq.ft (approximately) per floor and about 220 Sq. ft. per floor respectively. Further, in the back side of the said constructions i.e. G+3 and G+2 there was another construction made of brick and cement up to the first floor i.e. two stored building in north side of the said premises."

Against that order dated 10th July, 2013 by which petitioners was directed to deposit a sum of rupees twenty lakhs by way of security towards a cost of demolition, the petitioners preferred an appeal before the Hon''ble Division Bench and the Hon''ble Division Bench set aside only the portion of the said order dated 10th July, 2013 in respect of depositing a sum of rupees twenty lakhs by way of security towards the cost of demolition. Rest of the order was remain unaltered by the Hon''ble Division Bench vide Order dated 25th July, 2013. Order dated 25th July, 2013 passed by the Division Bench is quoted below :--

"We have heard the learned Counsels appearing for the parties. From the order under challenge it is not discernible as to what was the reason for a direction upon the writ petitioner to deposit a sum of Rs. 20,00,000/-. The stay granted by the learned trial Court was to continue in the event such deposit was made. Since the learned Advocates appearing either for the Kolkata Municipal Corporation or for the Landlord could not satisfy us as to the reason for a direction to deposit the security amount that direction is et aside. In the result the interim order already passed by the learned trial Court shall continue until the writ petition is disposed of. The learned trial Court is requested to try to dispose of the writ petition as expeditiously as possible.

The appeal and the connected application re both thus disposed of.

Urgent xerox certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities."

Now the present writ petition is for final hearing before this Court.

Mr. Debayan Bera, learned Advocate appearing for the petitioners submitted that the predecessors of the petitioners and the petitioners are not the tenant under the respondentno.8. They are the Thika tenant. Therefore, their tenancy should be governed under Thika Tenancy Act.

It is further submitted by Mr. Bera that they have already applied under Section 6 Sub Section 3 of the said Act before the Thika Controller for granting permission for regularising the construction made in the said plot. Therefore, unless their prayer is disposed of by the Thika Controller the construction which was made by the petitioner cannot be demolished by the impugned order dated 17th December, 2012. In this aspect Mr. Bera relied on Section 6 Sub Section 3 of the Thika Tenancy Act, 1981 which is quoted below :--

"Section 6 sub-section(3) Notwithstanding anything contained in this section, where a pucca structure has been constructed without No Objection Certificate as required by the provision to sub-section (5) of section 5, the Controller may, subject to the provisions of any other law for the time being in force, after being satisfied that the forfeiture of such structure to the State under sub-section (2) will cause hardship to the thika tenant or the Bharatis, as the case may be, issue a provisional certificate for the purpose of obtaining construction plan sanctioned by the local authority."

Before parting with his argument Mr. Bera submitted that unless the application filed before the Thika Controller under Section 6 Sub Section 3 is disposed of the respondent authorities has no right to issue the demolition order dated 17th December, 2012. Therefore, the writ petition should be allowed by quashing the impugned demolition order dated 17th December, 2012 passed by the Special Officer (Building), Kolkata Municipal Corporation and after quashing the said order the impugned notice dated 17th June, 2013 under Section 544 and 546 of the Kolkata Municipal Corporation Act 1980 issued by the Assistant Engineer C, Building Department, Kolkata Corporation should be quashed.

Per contra, Mr. Raut, learned Advocate appearing for the landlord private respondent vehemently contended that the petitioners'' predecessors and the petitioners were/are all along the tenant previously under the predecessors of the respondent No. 8 and presently under the respondent No. 8.

Mr. Raut also submitted that it is evident from the rent receipt appears from (Page-36 to 43 of the writ petition) clearly that the petitioners'' predecessors and the petitioners were/are the tenant previously under the predecessors of the respondent No. 8 and at present under the respondent No. 8. Therefore, the submission advanced by Mr. Bera has no substance that the petitioners were the Thika tenant under the state.

Mr. Raut also drew my attention at page 26 and 27 of the supplementary affidavit affirmed on 8th July, 2012 which shows that only from 2013 the petitioners just to establish their contention in the writ petition submitted TR Form before the Thika Controller. Mr. Raut also contended that the petitioners have motivatedly started to deposit some amount to the treasury/Reserve Bank of India which have no manner of application in the present case, where the demolition order was already passed on 17th December, 2012. Thereafter, notice for demolition issued on 17th June, 2013 under Section 544 and 546 of the Kolkata Municipal Corporation Act, 1980 by the Assistant Engineer, C Building Department, Kolkata Corporation does not deserve any interference by this Court.

Mr. Raut further vehemently urged that the petitioners being the tenant under the respondent No. 8 have no right to illegally construct unauthorised construction on the land of the landlord (private respondent) without any consent and knowledge of the private respondent. Therefore, the said unauthorised construction should be demolish by dismissing the present writ petition.

Mr. Raut also strongly urged that the petitioners did not pray for any relief under Section 5 Sub Section 3 of the Thika Tenancy Act, 1981.

Section 5 sub-section 3 of the Thika Tenancy Act, 1981 is quoted below :--

"Section 5 sub-section 3-If any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question."

Mr. Raut further submitted that compliance of Rule 3 of the said Act, 1981 was not fulfilled as time has been framed by Rule 3 of the said Act, 1981 for regularisation of the status of the occupiers under the 1981 Act. In support of his contention Mr. Raut relied on a Division Bench decision reported in 1999 (2) CHN Page-607 (Gopal Chandra Shaw and Ors. v. Smt. Uma Devi).

Mr. Gopal Chandra Das, learned Advocate appeared for the Kolkata Municipal Corporation vehemently urged that the petitioners failed to make out any case in the present writ petition and the same is a baseless, frivolous one having no merit. Mr. Das further contended that it is an admitted fact that unauthorised construction was illegally made without any sanction plan by the writ petitioners on the land of private respondent.

Mr. Das also vehemently urged that it is evident from the record that no plan was ever sanctioned in favour of the writ petitioners by the corporation to build construction of G+3 and G+2 respectively on the premises in question.

Mr. Das also strongly urged that it is evident from the report of the learned Special Officer that illegal, unauthorised construction was made on the land-in-question by the petitioners without obtaining any sanction plan. Therefore, the present writ petition does not deserve any interference by this Hon''ble Court and that should be dismissed with costs.

Considering the submissions advanced by the learned Advocates appearing for the parties and after meticulously perusing the record I am of the view that since challenging the order dated 17th December, 2012 passed by the Special Officer (Building), Kolkata Municipal Corporation the petitioners already preferred an appeal before the Building Tribunal, Kolkata Municipal Corporation being Title Appeal No. 16 of 2013 which is still pending for final adjudication. Therefore, I am of the opinion that justice would be sub-served if the Learned Tribunal is directed to dispose of the pending Title Appeal No. 16 of 2013 within eight weeks from the date of communication of this order without granting any unnecessary adjournment to the parties. In the meantime there will be a stay of operation of the order dated 17th December, 2012 passed by the Special Officer (Building), Kolkata Municipal Corporation and the notice dated 17.06.2013 passed under Sections 544 and 546 of the K.M. C Act, 1980 issued by the Assistant Engineer (C), Building Department, Kolkata Municipal Corporation for eight weeks.

Needless to mention that I have not gone into the merit of the matter. All points are kept open to be decided by the Learned Tribunal independently.

With this direction this writ petition being No. 19041(W) of 2013 is disposed of without any order as to costs.

Urgent photostat certified copy of this order if applied for, be supplied to the parties after fulfilling all the formalities.