IMPORTANT POINT
The court established that unauthorized construction without prior permission is subject to lawful demolition, and proper notice procedures must be followed, even if the responsible party is misidentified.

JUDGMENT :

(Amrita Sinha, J.) :

The petitioner no. 1 is a private limited company and the petitioner no. 2 is the director thereof. The company is a tenant in respect of a godown measuring about 900 sq. ft. approximately in the ground and mezzanine floor of premises no. 9, Antony Bagan Lane under the private respondent nos. 7-9. The tenanted premises is used for commercial purpose.

2. The petitioners claim that after the cyclone Amphan the roof of the godown of the petitioners got severely damaged but due to paucity of funds, the petitioners were not in a position to repair the roof immediately. The petitioners obtained permission from the landlords for repairing the existing roof with concrete slab above the asbestos roof. The petitioners have averred in the writ petition that the old and ruinous asbestos shed were replaced with RCC slab in the ground floor for the purpose of safety from rain and various other natural calamities.

3. The petitioners allege that the men and agents of the Kolkata Municipal Corporation (‘KMC’ for short) visited the subject premises on 2nd January, 2024 and demolished the concrete roof as well as asbestos shed of the godown of the petitioners. The petitioners, on enquiry, came to learn that a complaint was lodged against the repairing work done by the petitioners and an intimation to the concerned police station was filed. Notice under Sections 544 and 546 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as ‘the Act’) was issued for complying the order of demolition dated 13th May, 2023 passed under Section 400(1) of the Act.

4. It has been submitted that the demolition proceeding was initiated against one Mantu Saha. KMC did not issue any notice of the demolition proceeding either on the owners or the person responsible for making construction. The said Mantu Saha is neither a tenant nor occupier or owner of the said premises. The petitioners claim that they do not have any relationship with the aforesaid Mantu Saha and submits that there is no person by the aforesaid name in the subject premises.

5. It has been submitted that the petitioners intimated the Corporation in advance about the repairing work that was sought to be done by them. Without considering the said prior intimation made by the petitioners, KMC ought not to have conducted the proceeding and further ought not to have executed the order of demolition that was passed ex parte. The petitioners applied before KMC seeking repairing of the roof and restoring it to its original state.

6. Prayer has been made for directing KMC to repair the demolished roof of the godown and to restore the same to its original form. Further prayer has been made to set aside and/or cancel the demolition order dated 13th May, 2023 passed under Section 400(1) of the KMC Act, 1980 and the subsequent notice issued under Sections 544 and 546 of the KMC Act, 1980 dated 29th December, 2023.

7. Learned advocate representing KMC opposes the prayer of the petitioners by filing an affidavit. It has been submitted that in the instant case a telephonic complaint was received informing unauthorised construction being made at the subject premises. The Sub-Assistant Engineer of the borough visited the premises and found that several number of RCC beams had been constructed over the existing brick built structure and RCC slab was cast over the constructed RCC beams.

8. During inspection several persons were found involved with the construction work. The persons present at the spot were asked to produce valid documents in support of the construction. One of the persons identified himself as Mantu Saha and the Sub-Assistant Engineer, on bona fide understanding, that the said Mantu Saha with others was causing the erection, initiated proceeding under Section 400 against him. The said Mantu Saha was treated as the person responsible for making construction.

9. As in terms of Section 400 of the Act it was found that Mantu Saha was the person responsible fo