Sailendra Nath Sarkar @APPELLANT@Hash Debjani Sarkar (Ghosal) & Others

Re: ASTA 21 of 2018

This is an application arising out of an appeal preferred by the appellant/plaintiff against an order being Order No. 4 dated September 14, 2018 passed

by the Court of the learned Civil Judge (Sr. Division), Sealdah in Title Suit No. 91 of 2018. By virtue of the order impugned to this appeal, the prayer

of the appellant for granting of an ad interim injunction against the defendant No.5/respondent No.5, namely, the Kolkata Municipal Corporation was

not allowed.

Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of this case, we find that

an application under Article 226 of the Constitution of India, bearing W.P. 439 of 2017 was filed assailing an order dated July 24, 2017 passed by the

Assistant Engineer (Civil)/Executive Engineer (Civil) of the Building Department, Kolkata Municipal Corporation under Sections 544 and 546 of the

Kolkata Municipal Corporation Act, 1980 for demolition of the unauthorised/dangerous structure strictly in terms of the order dated April 18, 2011

passed by the Special Officer (Building) under Section 400(1) of the above Act. The above writ application was disposed of by a judgement and order

dated August 11, 2017. The operative portion of the above order is quoted below :-

“It is further submitted that the petitioner, thereafter, made further unauthorised and illegal construction and a proceeding was initiated by the

competent authority. Be that as it may, this Court finds that the authorities found that the impugned structure is illegal and unauthorised having made in

violation of the provisions of the statute and petitioner having unsuccessful at all tiers of the remedies available under the statute, this Court does not

find any ground to interfere with the concurrent finding of facts recorded by the statutory authorities. However, this Court cannot overlook the report

of the Special Officer filed before this Court which suggested that the impugned toilet is only available on the ground floor and the occupants of the

ground floor would be facing inconvenience and difficulties to live if the said toilet is demolished forthwith.

This Court, therefore, feels that the justice would be subserved if the petitioner makes a proper application for permission to construct a bathroom in a

sanctioned portion of the structure with the Executive Engineer [Civil], Borough-I within a week from date. In the event the said application is filed

within the time indicated hereinabove, the said authority shall process the said application and take a decision and communicate the same to the

petitioner within three week therefrom. Considering the peculiar facts involved in the instant writ petition and the discovery made in the report of the

Special Officer this Court directs the Corporation authorities not to take any step for demolition of the said block immediately.

An assurance has been given by the Corporation that if the application is made in the proper form, the permission shall be accorded to and the

petitioner should construct the toilet within four weeks from the date of such sanction.

In default of constructing the bathroom within the time indicated hereinabove, it is open to the Corporation to proceed with the demolition order without

any further notice to the petitioner. With this observation, it is disposed of. No order as to costs. The Special Officer is hereby discharged. Thereafter,

the appellant filed an application together with a plan for sanction which was received by the Kolkata Municipal Corporation on September 16, 2017.

The above application was disposed of by the Kolkata Municipal Corporation and the decision thereof was communicated to theappellant by a

communication dated February 26, 2018 which runs as follows :-

“To Salindra Nath Sarkar (P.R.)

6H, B.T. Road

Kolkata-700 002.

Sub:- Plan for sanction in terms of order dated 11/08/2017 passed by Hon’ble Justice Harish Tandon, Calcutta High Court in W.P. No.439 of

2017.

Re:- Prem. No.6H, B.T. Road in Ward no.006, Br.I

Sir,

This is to intimate that proposal submitted by the applicant Sailendra Nath Sarkar dt. 16/09/2017 for sanction is not within sanction area. The proposal

is to be made within sanction area in terms of court order dt. 11/08/2017 passed by Hon’ble Court. This department already sent a letter vide

EE/B/I/136/17-18 dt. 13/12/2017 intimating that proposal is to be made within sanctioned area, but this department has not yet received any such

proposal till date.

Hence you are requested to submit the proposal in terms of Hon’ble High Court order dt. 11/08/2017 within fifteen days from date of receipt of

this letter otherwise KMC will take necessary steps for demolition unauthorised construction without any further reference to you.

Thanking you

Yours truly

---------------

Executive Engineer (C)

Bldg. Dept., Br. I, KMCâ€​

The appellant submitted a further application before the Kolkata Municipal Corporation together with a plan for sanction for making construction in the

building in question which was received by the Kolkata Municipal Corporation on May 17, 2018. During the pendency of the above application, the

appellant filed the suit mainly against the private respondents as also making the Kolkata Municipal Corporation as a party to that proceeding praying

for a temporary injunction restraining the defendant No.5 from carrying on any act of demolition at the premises in question on the basis of the sketch

map prepared by the officers of the defendant No.5 in Demolition Case No. 17-D/Br-I/10-11. By virtue of the order impugned to this appeal, the

prayer for ad interim injunction was refused.

Having heard the learned counsel appearing for the appellant and the respondent No. 5 as also after giving our anxious consideration to the facts and

circumstances of this case, we find that admittedly a learned single Judge of this Court took the pain to take into consideration the facts and

circumstances of this case, as recorded hereinabove, and arrived at a conclusion that the construction in question was unauthorised and illegal. We are

of the considered view that the learned single Judge was right in not interfering with the order of demolition, but taking into consideration the hardship

of the inmates of the premises in question gave liberty to the appellant to apply before the Kolkata Municipal Corporation for making necessary

construction within his sanctioned area in accordance with law.

Admittedly the application, filed by the appellant in compliance of the above order, was disposed of by the Kolkata Municipal Corporation and its

decision was communicated to the appellant by a communication dated February 26, 2018 with the observation that the plan was not submitted by the

applicant for making construction within the sanctioned area. However, opportunity was given to the appellant to submit further application for

consideration by the Kolkata Municipal Corporation. Thereafter, the appellant submitted his further application for construction of toilet in the premises

in question on May 17, 2018. It is submitted by the learned counsel appearing for the appellant that the same is still pending.

Be that as it may, taking into consideration the aforesaid facts and circumstances, we are of the opinion that the learned court below was right in

rejecting the prayer of the appellant for granting an ad interim injunction in his favour in respect of demolition of the Toilet in question. Therefore, we

are not inclined to interfere with that order.

However, we take into consideration the anxiety of the learned single Judge which was expressed in the judgement and order dated August 11, 2017

in W.P. 439 of 2017 to request the Kolkata Municipal Corporation to dispose of the aforesaid application of the appellant dated May 17, 2018

expeditiously and positively within four weeks, provided the above application has not already been disposed of.

We make it clear that we have not made any observation with regard to the question of sanction of such plan on its merit and the Kolkata Municipal

Corporation will be free to take a decision in respect of the above application of the appellant strictly in accordance with law.

We further make it clear that we have not interfered with the process of demolition of the unauthorised toilet in question because more than one year

has passed from the date of disposal of the aforesaid writ application, as recorded hereinabove. Since nothing remains to be decided further in this

appeal, this appeal is treated as on day’s list with the consent of the parties present before this Court and the same stands disposed of along with

this application accordingly. There will be, however, no order as to costs. Urgent photostat certified copy of this order be given to the parties on

priority basis.