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1996 Supreme(SC) 1288

SUPREME COURT OF INDIA
RAM AWATAR AGARWAL
Vs.
Corporation of Calcutta
Decided on August 20, 1996

Headnote:

Calcutta Municipal Act, 1951 – Section 416 – Raised a construction –Municipal Authorities was unauthorised – Municipal Authorities, therefore, issued a notice under Section 416 of the Calcutta Municipal Act, 1951 to the owner as well as the occupiers of the said building to show cause why the unauthorised structure should not be demolished. In the meantime, the Municipal Authorities also posted guards at the site to ensure that there was no further unauthorised construction – Thereupon, Respondent 11, the owner of the building, filed Title Suit challenging the validity of the said notice on a number of grounds and secured an ad interim ex parte injunction restraining the Corporation from interfering with the construction work –Held, Not only that, several other deficiencies pointed out by the Deputy City Architect in his affidavit have remained unattended over all this period of time – Court, on perusal of the record are satisfied that this is a case of the owner in the first instance and thereafter the tenants abusing the process of the court with a view to delaying the demolition of the wholly unauthorised structure – Court cannot countenance such violation of the building rules and requirements which continue notwithstanding the indulgence shown by this court through the interim orders – Court share the feeling of the deputy City Architect when he states in para 18 of his affidavit that this is a case in which an unscrupulous builder took advantage of the courts order up to a point of time and after he failed in the legal process up to this court the tenants were set up to delay the inevitable and thus in this manner the unauthorised structure, hazardous and unsafe has stood all these year – Court have, therefore, no manner of doubt that this is a case in which exemplary cost should be awarded – Appeal fails and is dismissed.

( 1 ) RESPONDENT 11 raised a construction at 174, Chittaranjan Avenue, Calcutta, which according to the Municipal Authorities was unauthorised. The Municipal Authorities, therefore, issued a notice under Section 416 of the Calcutta Municipal Act, 1951 (hereinafter called "the Act") to the owner as well as the occupiers of the said building to show cause why the unauthorised structure should not be demolished. In the meantime, the Municipal Authorities also posted guards at the site to ensure that there was no further unauthorised construction. Thereupon, Respondent 11, the owner of the building, filed Title Suit No. 1161 of 1977 challenging the validity of the said notice on a number of grounds and secured an ad interim ex parte injunction restraining the Corporation from interfering with the construction work. Under the protection of the said interim order the activity of construction was carried on. Subsequently, on 30/1/1978 the Municipal Authorities issued a notice under Ss. (1 of Section 414 of the Act for demolition of the unauthorised construction. Efforts were made to serve this notice on Respondent 11 but it is alleged that he was trying to evade service and as such the notice had to be ultimately pasted at the site. The deputy Commissioner of the Municipal Corporation took up the hearing of the case on 15/5/1978 and directed the demolition of the unauthorised construction. By then the construction had progressed up to the 6th storey. Notwithstanding the same the owner continued to build above the sixth storey and once again a notice to stop work had to be given under Section 416 of the Act. On receipt of that notice an appeal was preferred to the building tribunal and a stay was obtained against the demolition of the 6th storey. In the meantime, the construction activity was proceeding in full swing. The construction proceeded up to the 14th storey. On 21/4/1981 two demolition orders were passed by the Deputy Commissioner (Buildings) with regard to the 7th to 10th and 11th to 14th storeys respectively. Respondent 11 preferred appeals against both these demolition orders before the Building tribunal. In the meantime, on 29/5/1981 the Building tribunal dismissed appeal No. 44 of 1978-79 in relation to the 6th storey. The owner respondent II then preferred a writ petition in the High court which was dismissed on 22/7/1981 by a learned Single Judge in limine. An appeal preferred against the said order also met the same fate on 16/11/1981 when it came to be dismissed by a division bench of the High court. Special Leavepetition No. 50 of 1982 preferred against the said order also came to be dismissed and thus the demolition order in regard to the 6th storey became final. One of the tenants thereafter filed a suit in the City Civil court, calcutta and obtained an interim injunction restraining the Municipal corporation from executing the demolition order. The owner Respondent 11 had also succeeded in obtaining an order from the Building tribunal in regard to the subsequent two demolition orders dated 21/4/1981. On 16/2/1982 the Corporation Authorities directed the execution of the demolition work and also disconnected the water supply to the building. Thereupon the tenants of the building moved a learned Single Judge of the High court at his residence and upon an oral application secured an interim order against the demolition of the floor concerned. A formal writ petition was presented two days later, wherein an interim order staying the demolition was granted. The execution of the demolition order was, therefore, suspended by the Municipal authorities. However, that writ petition preferred by the tenants came to be dismissed on merits on 1/3/1982 by the learned Single Judge. Bank of rajasthan had applied to be impleaded in the said proceedings and that application also stood dismissed on the dismissal of the writ petition itself. Two days later on 3/3/1982 the writ petitions pending before another learned single Judge wit








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