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2018 DIGILAW 26 (CAL)

Shagufta Begum v. Kolkata Municipal Corporation

2018-01-05

SUBRATA TALUKDAR

body2018
JUDGMENT : 1. Party/Parties are represented in the order of their name/names as printed above in the cause title 2. Reports are filed before this Court are as follows:- (a) From the Respondents State/Police Authority. (b) From the Respondent/KMC (C) From the Learned Special Officer. 3. All the three Reports, for various convergent reasons, inter alia, point out that the work of demolition on the fourth and fifth floors of the premises in issue as directed in Part-B of the order of the Municipal Commissioner/KMC/Respondent No.2 dated the 15th of February, 2017 could not be completed. Therefore, the Learned Special Officer correctly states that the demolition on the fourth and fifth floors is only partially completed thereby potentially affecting endangering lives limbs and properties which are close and below the incomplete demolition. 4. On behalf of the Writ Petitioner in W.P.21606(W) of 2017 (W.P.-I), Mr. Deb Barman, Learned Counsel appears and presents suave arguments essentially urging this Court to notice both Part-A with Part-B of the order dated 15th February, 2017 in a holistic manner. Mr. Deb Barman submits that in the event the conditions in Part-A are not complied with by the Persons Responsible (PR), then the demolition exercise must include both the structural portion of the building covered by Part-A as well as the additional floors outlined in Part-B. 5. Before proceeding further with this discussion it will be necessary to set forth the ordering portion of the Respondents/Municipal Commissioner comprising Part- A and Part-B (supra). “Part-A That no order for demolition is passed in respect of the horizontal extension of the unauthorized on all sides from ground floor to third floor and no order is passed for stopping impugned change of use at ground floor at the premises no.15, A.K.Mohammad Siddiqaue Lane subject to comply with the following pre-conditions, within 30 days from the date of communication of this order. Those conditions are (1) PR must produce a structural stability certificate, certified by KMC empanelled structural engineers certifying the structure is stable, safe and sound and the materials used are as per the latest edition of National building Code of India (2) PR must furnish an affidavit declaring on oath that he will not make any construction whatsoever in the impugned premises without prior permission from the KMC authority and (3) PR will pay the necessary retention and conversion charges of KMC as calculated by the department in a separate sheet of paper attached and supplied with this final order. On non-compliance of either of the conditions within the above stated specified period the KMC authority shall demolish the same at the cost and the risk of the PR. Part-B The PR shall demolish the additional floors over G+III storied building within 30 days from the date of communication of this order in default the KMC authority shall demolish the same at the risk and cost of the PR. Let a copy of this order be served on both sides.” 6. On a careful reading of both Part-A and Part-B (supra), this Court must notice the arguments of Mr. Deb Barmanon on the anvil of the prayers in his writ petition, i.e. W.P. 21606 (W) of 2017 which, read as follows: (a) A writ in the nature of mandamus directing the respondent authorities, their men, agents and subordinates to forbear from demolishing the fourth floor of the building measuring about 1545.6 sq.ft. situated at 15A.K.Md siddique Lane, P.S. Park Street, Kolkata-700 016 till the disposal of the Writ Application; (b) A writ in the nature of mandamus commanding the respondent authorities and each one of them their men, agents and subordinates to forthwith, set aside, quash, withdraw, rescind and cancel the impugned notice dated 15th February, 2017issued by the Commissioner, Kolkata Municipal Corporation; (c)A writ in the nature of mandamus directing the respondents to treat the payment of Rs.8,50,000/- is valid deposit towards retention charges in respect of fourth floor of the said premises. (d) A writ in the nature of Prohibition directing the respondents, their men agents not to send any officials to demolish the said fourth floor of the concerned building till the disposal of the writ application; (e) A writ and/or in the nature of certiorari commanding the respondent authorities to each one of them their men, agents, assigns and/or Sub-ordinates to certify and transit to this Hon’ble court the records of the case including the order dated 15 February 2017 pass by the Respondent No.2 so that conscionable justice may be administered by quashing the same. (f) Any other appropriate writ or writs order or orders and/or direction/directions (g) Rule NISI in terms of prays (a), (b), (c), (d), (e) and (f) above and after hearing the parties to make the rule absolute. (h) An interim order restraining the respondent authorities not to give effect to or further effect to the impugned order dated 15th February 2017 passed by respondent No.2 till the disposal of this application. (i) Cost of incidental to this application be borne by the respondent. (j) Such other or further order/orders as your Lordship may deem fit and proper. 7. This Court therefore finds that the arguments of Mr. Deb Barman submitted at the Bar at this stage and, sought to be polished by a Supplementary Affidavit are at variance with the prayers based on pleadings in his analogous writ petition. At best, even assuming the arguments to be acceptable at this stage, the demolition exercise qua Part-B contemplates no exception made out by the Municipal Commissioner/Respondent No.2 whereas, conditions have been applied qua Part-A which merit to be considered. In any event, Mr. Deb Barman, standing on an outright illegality noticed by the Respondent No.2 qua the fourth and fifth floors in Part-B cannot claim any equitable treatment on such score. 8. Accordingly, this Court directs as follows: (A) That both the Respondents/Police Authorities and the Respondents/Municipal Authorities shall continue to act in terms of the earlier direction of this Court dated 22nd December, 2017 and, shall be entitled to take all necessary steps on the ground. (B) The Learned Special Officer shall oversee the demolition as directed by the order of 22nd December, 2017. (C) The additional remuneration of the Learned Special Officer is fixed at 1,000 GMs to be now borne equally between the petitioners in W.P.22235(W) of 2017 and W.P.21606(W) of 2017. (B) The Learned Special Officer shall oversee the demolition as directed by the order of 22nd December, 2017. (C) The additional remuneration of the Learned Special Officer is fixed at 1,000 GMs to be now borne equally between the petitioners in W.P.22235(W) of 2017 and W.P.21606(W) of 2017. (D) The Respondents/KMC shall take instructions on the steps taken in terms of Part-A of the order of the Respondent/Municipal Commissioner dated 15th February, 2017 and file a Report before this Court on the next date. 9. The parties shall be at liberty to file their Action Taken Reports on the next date. 10. The matter is made returnable under the heading “Mentioned Matter” on the 2nd of February, 2018.