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2018 DIGILAW 185 (CAL)

Kali Chowdhury v. Kolkata Municipal Corporation

2018-01-29

PROTIK PRAKASH BANERJEE

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JUDGMENT : 1. The writ petition is called on after due notice through publication in the Appellate Side list. The Respondent Municipal Corporation and the respondent no. 5 are both represented. 2. The present writ petition appears to have been filed in the year 2015 challenging an order of demolition which appears to have been signed on December 20, 2014 which is annexed as Annexure P-6 at page ‘18’ of the writ petition. However, neither the serial number nor the date of the order appears from its face. 3. The writ petition impugns the legality and validity of the notice. It has no serial number even though the demolition notice was required to contain a serial number. 4. If the copy of the notice annexed to the petition is considered, it would be found that it is addressed to the owner being the respondent No. 5 and the petitioner but there have been corrections and/or overwriting on the notice including the signatures. At one place of the said notice there appears to be a signature of the Sub Assistant Engineer signed on 20th December, 2014 whereas in another place in the said notice there is signature of Assistant Engineer who appears to have signed it on 20th December, 2014 which has been changed to 20th July, 2014 without any counter signature. 5. Had it been open to the Court to proceed independently of the writ petitioner in the matter, the Court would have taken note of the fact that a company whose business appears to be developing real estate has obtained an order of demolition of a building which it had purchased from its original owners, with tenants who had refused to vacate or surrender the tenancy, and the result is that a lawful tenant is facing eviction without due process of law. 6. Mr. Ghosh Dastidar, instructed by Ms. Sankari Roy, appearing for the respondent No. 5 promoter/developer, submits that his client has been in this business for a long time, and since 1989 has been unable to get the premises vacated. So, a company which is in the business of promoting and developing property has been unable for almost 30 years to get the premises vacated through either due process of law or rule of law. 7. This is not new. So, a company which is in the business of promoting and developing property has been unable for almost 30 years to get the premises vacated through either due process of law or rule of law. 7. This is not new. I can take judicial notice of the fact that many a time unscrupulous transferees of helpless and often indigent owners of old buildings have traveled down this route and found an obliging Kolkata Municipal Corporation only too ready to issue notice of demolition of a building on various grounds, which has the effect of removing a troublesome tenant who refuses to vacate the premises and against whom the transferee of the owner hesitates to file eviction proceedings because it would take a lot of time. It is needless to mention that such development and promoting of property often happens on borrowed funds, and these funds carry interest and the longer the delay in starting construction the higher the interest and the more time that those borrowed funds remain locked up without the borrower getting any benefit out of them. Naturally, those who develop property have to show that the property is without encumbrance of tenancies, and that they are in a position to start construction immediately, to attract prospective customers and occupants of flats/covered spaces therein, from whom they can take money as consideration or part-consideration for the same. The mode of proceeding I have outlined above, conveniently dispenses with the requirement of a long litigation and the due process of law to evict an inconvenient tenant. 8. Perhaps this is not the reason why Part IXA was enacted and inserted into the Constitution of India in exercise of the constituent powers of the competent legislature. Perhaps this is not the reason why local self-government was allowed, where representatives of the people are elected to ensure compliance with the laws made under Part IXA of the Constitution of India. Regardless of the undeniable connection of promoting/ development of property and the huge amounts involved and politics, the statutory purpose behind enactment of the Kolkata Municipal Corporation Act, 1980 was not to facilitate the business of developers in Kolkata so that they could have an alternative to filing eviction proceedings against tenants. 9. However, in the instant case two submissions have been made which in fact defenestrate the Court. 10. Mr. Sujash Ghosh Dastidar, learned counsel appearing for the respondent no. 9. However, in the instant case two submissions have been made which in fact defenestrate the Court. 10. Mr. Sujash Ghosh Dastidar, learned counsel appearing for the respondent no. 5 submits that firstly his clients who are interested in such demolition being transferee landlords have moved a writ petition being W.P. no. 9122(W) of 2016 where a co-ordinate Bench of this Court has been pleased to direct that so far as the pendency of the above writ application is concerned, “no material is produced before me to show that the Kolkata Municipal Corporation is restrained to proceed in the matter. Therefore, there is no bar and/or impediment to proceed on the basis of the notice under reference on that ground”. “In view of the above, I direct the respondent-Municipal Corporation to proceed further in the matter on the basis of the above notice dated December 20, 2014 (Annexure P-13 at page 136 of this writ application) and to conclude the entire process in accordance with law within a period of three months from date.” 11. Annexure “P13” at page 136 of W.P. no. 9122(W) of 2016 appears to be identical to the copy of the notice as in Annexure “P6” to the present writ petition at page 18 hereof. 12. Even though it was due to the business of the Court that the matter could not be taken up earlier but the normal rule is that the party litigant does not suffer for the fault of the Court (Actus curiae neminem gravabit). 13. In the instant case, however, the second submission made by the Learned Counsel for the respondent No. 5, does not even allow me to extend the benefit of that maxim to the petitioner because in the writ petition referred to above the petitioner therein (who is the respondent No. 5 herein) has expressly averred that the said Kali Chowdhury (present writ petitioner) was a tenant of the present respondent no. 5 who used to live alone at the said premises and that he did not surrender his tenancy but has died during the pendency of the present writ petition. 14. There is no one to represent the estate of the writ petitioner, according to the respondent no. 5. The respondent No. 5 submits that none has appeared to claim that he has right over the estate of the writ petitioner. 14. There is no one to represent the estate of the writ petitioner, according to the respondent no. 5. The respondent No. 5 submits that none has appeared to claim that he has right over the estate of the writ petitioner. No application has been made for substituting the deceased writ petitioner in this petition under Article 226 of the Constitution, where rights arising from a tenancy can be canvassed to contest a demolition. 15. Furthermore, since it is the case of the respondent no. 5 that no one and/or no legal heir of Kali Chowdhury, since deceased, was ordinarily residing with the said Kali Chowdhury, the writ petitioner (since deceased), the cause of action of the writ petitioner appears to have died with him. No application for substitution has been made within a period of limitation or within such reasonable time as has been envisaged in the judgment in the case of Puran Singh and Others—v—State of Punjab and Others reported in AIR 1996 Supreme Court 1092. 16. As such despite my best intention, I have no alternative but to hold that the cause of action of the writ petitioner has died with him and to the extent possible under civil law the writ petition has abated in view of the fact that no one has come forward to substitute him. I have reached this conclusion on hearing the un-controverted submissions made from the Bar by counsel on behalf of the respondent No. 5 which I am bound to rely upon. The Kolkata Municipal Corporation does not deny the truth of those submissions either. 17. The writ petition is recorded to have abated and there is no lis pending which would allow the Kolkata Municipal Corporation not to enforce its order at Annexure “P6” of the present writ petition. 18. I make it clear with great regret and sadness that I must once again stand aside and watch the rule of law crucified. The demolition shall go forward. One more victory for stratagem over rule of law, facilitated by mercenary officers of the Kolkata Municipal Corporation, who could not resist the blandishments of the moneyed class. I sincerely hope that the Administration shall ensure that the political will to continue such mercenary activity can be obliterated for good. The demolition shall go forward. One more victory for stratagem over rule of law, facilitated by mercenary officers of the Kolkata Municipal Corporation, who could not resist the blandishments of the moneyed class. I sincerely hope that the Administration shall ensure that the political will to continue such mercenary activity can be obliterated for good. The observations contained herein shall not be construed to be a stigma on either the respondent No. 5 or the respondent No. 5 as an institution. There will be no order as to costs.