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2022 Supreme(Cal) 261
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Amrita Sinha, J.
Lakshmi Roy – Petitioner
Versus
The State of West Bengal & Others – Respondents
WPA. No. 4760 of 2019 & IA. No. CAN 1 of 2020 (Old No. CAN 703 of 2020)
Decided On : 15-07-2022
For the Petitioner:Biswaroop Bhattacharyya, Pratik Majumder, Advocates.
For the Respondent:Sudipto Panda, Mun Mun Tewary, Amales Ray, Mousumi Bhowal, Aman Gupta, Shaunak Ghosh, Rajib Mullick, Shreyashi Maity, Advocates.
The balance between addressing unauthorised construction and the rights of long-standing occupants in a squatter's colony is crucial. The doctrine of desuetude may not apply in cases where specific circumstances warrant a different approach.
Headnote:
Demolition - Property Dispute - West Bengal Municipal Act, 1993 - S. 218 - Doctrine of desuetude - Squatter's colony - [UNAUTHORISED CONSTRUCTION] - [PROPERTY DISPUTE] - [West Bengal Municipal Act, 1993, S. 218] - The judgment discusses the issue of unauthorised construction in a squatter's colony and the Municipality's decision to demolish a new construction while allowing the existing structure to remain. The court emphasizes the balance between addressing unauthorised construction and the rights of long-standing occupants in the squatter's colony. The doctrine of desuetude is considered but found inapplicable due to the specific circumstances of the case.
Fact of the Case:
The petitioner claims ownership of a property in a squatter's colony and seeks demolition of unauthorised construction by the private respondents. The Municipality demolished the new construction but allowed the existing structure to remain. The petitioner challenges the Municipality's decision.
Finding of the Court:
The Court finds that the Municipality's decision to demolish the new construction while allowing the existing structure to remain is balanced and reasonable. It dismisses the writ petition, emphasizing that the dispute is private and not appropriate for the Writ Court to adjudicate.
Issues: Property ownership dispute, unauthorised construction, Municipality's decision on demolition.
Ratio Decidendi: The Municipality's decision to demolish the new construction while allowing the existing structure to remain is reasonable and not required to be interfered with. The doctrine of desuetude is found inapplicable to the case.
Final Decision: The writ petition is dismissed, and the Municipality's decision on demolition is upheld.
JUDGMENT :
1. The petitioner claims to be the daughter of one Shyamapada Roy, since deceased, the predecessor in interest of premises no. 6A, Shyama Prasad Colony at 360, Jessore Road, Kolkata 700055. The aforesaid premises was given on lease in favour of the deceased Shyamapada Roy by a registered deed of lease executed by the Refugee, Relief and Rehabilitation Department, Government of West Bengal on 8th September, 1983 in respect of twelve chittaks six sq. ft. of land in C.S. plot no. 2114 (P), E/P no.- 6A, S.P. no. 20/1, Mouza- Kalidaha, PS- Lake Town. The said Shyamapada Roy paid the municipal tax in respect of the aforesaid property and resided thereon by constructing a single storied structure with brick walls and tin roof.
2. The aforesaid premises was mutated in favour of the said Shyamapada Roy by South Dum Dum Municipality and the property was numbered as 6/1, presently 8, Shyama Prasad Colony.
3. The petitioner claims that the private respondents are occupiers of the adjacent plot of land. The predecessor in interest of the private respondents always tried to dispossess the said Shyamapada Roy from his own property. As a consequence, the predecessor in interest of the private respondents instituted Civil Suit being T.S. No. 249 of 1985 praying for eviction of licensee. The predecessor in interest of the petitioner entered appearance in the said Suit and after the demise of Shyamapada Roy the petitioner substituted herself in the said Suit and is contesting the same.
4. During pendency of the Title Suit the predecessor in interest of the private respondents took forceful possession of the suit property on 15th March, 1988. The said Shyamapada Roy filed an application for mandatory injunction for restoration of possession of the suit property on 24th June, 1989. Title Suit No. 249 of 1985 stood dismissed for default on 26th April, 2005.
5. An independent Suit being Title Suit No. 310 of 2008 was filed by the petitioner and her brother and sister’s heirs praying for a declaration that they are the lawful owners of the premises no. 6A, Syamaprasad Colony and the defendants have no right, title and interest over the property in any manner. A prayer has been made for restoration of possession of the property in favour of the plaintiffs.
6. A Civil Revision application in connection with the said Suit was filed before this Court and by an order dated 21st April, 2009 an order of status-quo was passed with regard to the creation of third party interest and/or possession in respect of the Suit property till disposal of the revisional application.
7. The private respondents herein disclosed their defence in the written statement wherein their stand is that the settlement made by the Refugee, Relief and Rehabilitation department in favour of Shyamapada Roy was bad and there never existed an independent premise being no. 6A, Shyama Prasad Colony.
8. In June 2018 it came to the knowledge of the petitioner that new construction work has been undertaken by the private respondents in the said premises. The petitioner immediately lodged a complaint before the Municipality on 2nd July, 2018 against such unauthorised construction and prayed for initiation of appropriate proceeding to demolish the illegal construction and to revoke the sanction plan, if any.
9. In response to the complaint filed by the petitioners, the South Dum Dum Municipality initiated appropriate proceedings. A writ petition was filed before this Court being WP No. 9560 (W) of 2018 which stood disposed of on 25th July, 2018 relying upon the report filed by the Municipality stating that there are unauthorised constructions, directing the Municipality to invoke the provision of S. 218 of the WB Municipal Act, 1993 and complete the exercise within a stipulated time frame giving reasonable opportunity of hearing to all the parties.
10. The Municipality after hearing all the parties was of the opinion that the building standing on the said premises has been constructed without a
