2009 Supreme(Cal) 456
High Court of Judicature at Calcutta
TAPAN KUMAR DUTT
Sarita Agarwal
Versus
Municipal Building Tribunal, Kolkata Municipal Corporation
W.P. No. 621 of 2007
Decided On : 29-06-2009
For the Appearing Parties:Pratap Chatterji, Ranjan Bachawat, Amitesh Banerjee, Anju Bansal, Saktinath Mukherjee, Chandranath Mukherjee, A. Chatterjee, S. Mukherjee, Rekha Ghosh, Aloke Kumar Ghosh, Dilip Chatterji, Advocates.
(1) This Court has heard the learned Advocates for the respective parties. The petitioners case in brief is that the petitioner is a tenant in respect of a terrace flat at premises No. 4A, Shambhunath Pandit Street, Kolkata (hereinafter referred to as the said premises) under the respondent Nos. 6 and 7 which was previously owned by Sri Satyendra Nath Maitra who had granted the said tenancy in favour of the petitioners late husband Sudesh Kumar Agarwal and after the death of the petitioners husband on 18th June, 1970 the said tenancy was transferred in favour of the petitioner and rent receipts were, accordingly, issued. Petitioners further case is that the said flat is in the same condition as it was at the time when the petitioners husband was inducted as a tenant and the petitioner has not made any construction, alteration and/or reconstruction in or of the said flat. It appears from the writ petition that on or about 15.1.1998 the respondent Nos. 6 and 7 purchased the said premises including the tenanted portion enjoyed by the petitioner and her family. The petitioners case is that the private respondents started harassing the petitioner by bringing various frivolous proceedings against the petitioner and also stopped accepting the rent tendered by the petitioner and the petitioner has been depositing the rent with the Rent Controller. Petitioners further case is that at the instance of the respondent Nos. 6 and 7 the respondent Municipal authority came to demolish the tenanted portion of the petitioner and it was only by act of god that the petitioners tenancy was saved from demolition the petitioner had to move this Court in the writ jurisdiction and the respondent Municipal authorities were restrained, by way of an interim order, from proceeding under Section 400(8) of the Calcutta Municipal Corporation Act, 1980 but the respondent Municipal authorities were granted liberty to take expeditious steps under the other provisions of the Act. The petitioners case is that the petitioner was subsequently served with a notice dated 21.6.2000 under Section 400(1) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) wherein it was inter alia stated that the "Construction of (i) Asbestos shed 4.0m x 2.0m on the roof of 4th Storey (ii) Divided by the wooden partition at the 4th storey in stair block - All are without permission" and it was further alleged in the said notice that there were infringements of certain Building Rules. Following the said notice hearing took place and the respondent No. 4 allowed the petitioner to retain the wooden partition at the 4th storey in the stair block without any payment of erection/re-erection charges and also allowing the petitioner to retain the asbestos shed subject to payment of erection/re-erection charges. The private respondent Nos. 6 and 7 filed an appeal against the said order dated 8.11.2000 and by an order dated 28.9.2001 the Municipal Building Tribunal set aside the order dated 8.11.2000 and thus allowed the said appeal and sent the case back on remand in the light of the observations made in the said order for fresh hearing. It appears that the private respondents have filed a suit in the Civil Court and parties have fought against each other on certain interlocutory matters. However, a second notice dated 10.7.2003 was issued by the respondent Municipal authorities under Section 400(1) of the said Act of 1980 and the matter was again heard by another Special Officer (Building) who by order dated 3.6.2004 declined to pass any order of demolition in respect of "deviated unauthorized constructions" subject to compliance with certain pre-conditions within 30 days from the date of communication of the order and those pre-conditions were (1) the petitioner must produce a certificate from any empaneled Structural Engineer certifying that the structural stability and the foundation of the impugned constructions are safe and sound and the mat