Judgment:
ORDER
SHEET W.P.No.1233 of 2013 G.A.No.1614 of 2014 G.A.No.1422 of 2016 G.A.No.200 of 2017 G.A.No.2741 of 2016 With W.P.No.843 of 2016 With W.P.No.28936(W) of 2013 CAN5024of 2016 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE SUNIL KUMAR SEN Versus THE KOLKATA MUNICIPAL CORPORATION & ORS.BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 23rd June, 2017.
For Petitioner : Mr.Surajit Nath Mitra, Sr.Adv.with Mr.Arindam Mukherjee, Ms.Sananda Mukhopadhyay & MRS.Arundhati Mukherjee, Adversus For KMC : Mr.Barin Banerjee with Mr.Swapan Kr.
Debnath & MRS.Sima Chakraborty, Adversus For CESC : Mr.Saurav Choudhury, Adv.For PVT.Respondent Nos.13&14 : Mr.Emon Bhattacharya, Adv.Two recalcitrant tenants are putting spanner to the action required to be taken by the Kolkata Municipal Corporation in order to avoid any casualty or loss of life.
The Corporation found the property in question to be in dangerous and ruinous condition and issued a notice under Section 411 of the Kolkata Municipal Corporation Act, 1980.
It is not in dispute that the entire property is/was occupied by the tenants.
The petitioner, after such notice, approached the tenants and have stated in the instant writ petition that all such tenants have agreed with the proposal given to them except two of them who are vehemently resisting and/or contesting the instant writ petition.
Time and again several orders were passed in the instant writ petition so that the parties can arrive at the consensus without affecting their respective rights in respect of the said premises or a portion thereof.
The disgruntled respondents have been all along raising objections to the proposals thrown to them and have further proceeded to file an application being G.A.No.200 of 2017 for appropriate steps to be taken against the petitioner, who has not only made the false statement on them, but also suppressed the material fact.
On being asked, it is stated by the contesting respondents that the petitioner has claimed himself to be the sole and absolute owner of the premises no.116, Muzaffar Ahmed Street, Kolkata – 700 016 whereas he had already sold and transferred the right, title and interest in respect of the portion of the premises in the year 2012 to one, M/S.Active Vanijya PVT.LTD.This Court is informed that in a suit for eviction filed against the contesting respondents, an application for amendment of the written statement was taken out to incorporate those facts which was eventually refused by the Trial Court.
The said order was subsequently affirmed by the High Court under Article 227 of the Constitution of India.
Apart from the same, this Court does not find that any prejudice is caused to the petitioner and non-disclosure of the divestation of the right, title and interest of a portion of the said premises would have any impact on the subject dispute.
The contesting respondents are merely tenants.
It is not their case that the tenanted premises or a portion thereof falls within the said portion which had been sold to a third party.
The person who can be said to be aggrieved by such statement is the person in whose favour the petitioner has transferred his right, title and interest and it is not open to the tenants to challenge even a title of the petitioner because of the embargo created under Section 116 of the Evidence Act.
This Court, therefore, does not find that the writ petition deserves to be dismissed solely on the ground of false statement made on oath.
Furthermore, the petitioner still retains the right, title and interest in respect of the said premises and the tenancy of the contesting respondents falls within the rights of the petitioner.
So far as the suppression of the material facts is concerned, it is submitted that prior to the agreement disclosed by the petitioner there was another agreement which was communicated to them.
I do not think that non-disclosure of such agreement which appears to have been superceded by the later agreement, amounts to suppression of the material fact so that the writ petition should be dismissed on such ground.
This Court, therefore, does not find any substance and merit in G.A.No.200 of 2017 and the same is hereby dismissed.
The subject dispute in the instant writ petition pertains to a direction upon the Corporation Authorities to declare the premises to be dangerous, unsafe and ruinous and the consequential steps to be taken.
Before this Court proceeds to decide the issues involved in the instant writ petition, it would be profitable to quote Section 411 of the Kolkata Municipal Corporation Act, 1980 which runs thus – 411.
Power to order removal of dangerous buildings.
– (1) If any wall or building, or anything affixed thereto, be deemed by the Municipal Commissioner to be in a ruinous state, or likely to fall, or to be in any way dangerous, he shall forthwith cause a written notice to be served on the owner and to be put on some conspicuous part of the wall or building or served on the occupier, if any, of the building requiring such owner or occupier forthwith to demolish, repair or secure such wall, building or thing, as the case may require : [Provided that in the case of a heritage building the Municipal Commissioner may refer the State or the condition thereof to the Heritage Conservation Committee for its consideration and decision.].(2) The Municipal Commissioner may, if it appears to him necessary so to do, cause a proper hoarding or fence or other means of protection to be put up at the expense of the owner of such wall or building for the safety of the public or the inmates thereof; and may, after giving them such notice as the Municipal Commissioner may think necessary, require the inmates of the building to vacate it.
(3) The provisions of this Act and of any rules or regulations made thereunder relating to buildings shall apply to any work done in pursuance, or in consequence, of a notice issued under subsection (1).(4)(a) Notwithstanding anything contained in the foregoing subsections, the Municipal Commissioner may, forthwith or with such notice as he thinks fit, demolish, repair or secure or cause to be demolished, repaired or secured, any such wall or building or thing affixed thereto, on the report of the Chief Municipal Architect and Town Planner, certifying that such demolition, repair or securing of the building, wall or thing is necessary for the safety of the public or the inmates of the building.
(b) In any such case the Municipal Commissioner may cause the inmates of the building to be summarily removed from the same or such portion thereof as he may consider necessary.
(c) All expenses incurred by the Municipal Commissioner in taking action under this sub-section shall be paid by the owner of such wall, building or thing.
(5) Any action taken by the Municipal commissioner under subsection (4) shall, unless the contrary is proved, be deemed to have been taken lawfully and in good faith and with due care and attention.
Under the aforesaid provision the power is vested upon the Municipal Corporation to issue a notice upon the owner or occupiers requiring them to forthwith demolish, repair or secure the wall, building or things if they are found to be in a ruinous state or likely to fall or to be in any way dangerous.
The petitioner has annexed several photographs indicating the condition of the structure standing at the said premises.
Precisely, for such reason this Court directed the Corporation to make an inspection and submit a report whether the condition of the structure standing thereupon is such which requires an immediate demolition as it may cause loss of life to the inhabitants thereof.
The report submitted by the Corporation reveals that a portion of the said premises is dangerous and in ruinous condition and beyond the state of repair and/or restoration whereas the portion of the ground floor which appears to have been occupied by the contesting respondents are within the repairable state.
However, the apprehension is shown by the inspecting officer that while carrying out the demolition work of the other portion, the remaining portion of the ground floor may be affected and a suggestion is mooted out therein that precaution, prevention and care should be taken while effecting the demolition of the dangerous and ruinous portion.
When the matter appeared on earlier occasions, both the petitioner and the Corporation Authorities were not agreeable to shoulder the responsibility of demolition as any accident may take place even proper precaution and prevention are taken which may damage the other portion.
Today when the matter was taken up, the contesting respondents were adamant in their submission and they do not want to cooperate either with the Corporation or the petitioner in carrying out the demolition work and they contend before the Court that if the demolition is carried out the agreement of development which clearly provides that the tenants would be accommodated from the developer’s allocation, the petitioner being the owner cannot rehabilitate and restore the contesting respondents in the newly constructed premises.
Though the petitioner was agreeable to give an undertaking before the Court that they would restore the possession of the private respondents in the newly constructed building with similar area and the position, yet the contesting respondents are not agreeable because of the particular clause of the development agreement as stated hereinbefore.
The Writ Court is not supposed to create an agreement between the parties and to compel the parties into an agreement.
The fact remains that the building standing in the said premises is in dangerous and ruinous condition and needs immediate demolition.
Since a person would be affected and may be deprived of some limited rights, does not stand in the way of passing direction upon the statutory authority to comply the provision of Law so as to avoid any casualty or loss of life in the event such structure falls in future.
The Court cannot remain a mute spectator simply because the occupation of the tenant would be affected in couRs.of a demolition as the Court cannot allow any loss of life to become reality in couRs.thereof.
This Court, therefore, feels that the apprehension in the mind of both the petitioner and the private respondents relating to the demolition of the portion of the premises is concerned can be taken care of if the entire demolition is foisted upon the Corporation.
The Municipal Commissioner is directed to depute a responsible officer and/or engineer who has an expertise in such matter to supervise the entire demolition work by taking all precaution, prevention and care that the portion which is indicated in the said report and is within the repairable condition, do not get damaged and/or affected.
In couRs.of such demolition work evenafter taking all precaution and prevention it becomes inevitable to demolish the remaining portion, the said responsible officer is free to take such decision at the spot obviously after submitting the report to the Municipal Commissioner.
Before ensuing and/or commencing the demolition proceeding the Municipal Commissioner shall serve a notice upon the contesting respondents being the respondent Nos.13 and 14 to vacate and hand over their respective possession to the Municipal Commissioner or his authorised officer within seven days therefrom.
If the possession is not given despite the notice having received by those respondents, the Municipal Commissioner is permitted evict them from such possession, if necessary with the help of the local police.
After taking possession, the Municipal Commissioner or the authorised officer, as indicated above, shall see that the demolition proceeding is complete in all respect within fifteen days therefrom.
The cost of demolition proceeding shall be realised from the petitioner.
After the completion of the demolition proceeding the engineer shall inspect the remaining portion and shall certify whether such portion is under habitable and tenantable condition.
If it is so, the Municipal Commissioner or his authorised representative shall put the respondent Nos.13 and 14 back in the possession of the said portion within seven days therefrom.
It is, however, made clear that if the petitioner intends to erect the building at the said premises, no portion of the newly constructed building should be transferred, sold or alienated in favour of the third party unless the possession is given to the said respondents of a similar area and/or a position at the newly constructed building.
With these observations the writ petition being W.P.No.1233 of 2013 is disposed of.
In view of the disposal of the main writ petition all the connected applications have become infructuous and are accordingly disposed of.
Let W.P.No.843 of 2016 be detached from the aforesaid writ petitions which are disposed of by the instant order.
Urgent photostat certified copy of this order, if applied for, be made available to the parties within three days upon compliance with all requisite formalities.
(HARISH TANDON, J.) K.
Banerjee A.R.[C.R.].