IMPORTANT POINT
Unauthorized constructions cannot be protected by injunctions, as they undermine statutory duties of municipal authorities.

JUDGMENT :

1. Affidavit of service filed in Court today, be kept with the records.

2. By consent of the parties, the appeal and the application are taken up together for hearing.

3. A judgement and order dated April 19, 2024, whereby a learned Judge of this Court disposed of a writ petition filed by the respondent No.5 herein being WPO 297/2024, is the subject matter of challenge in this appeal at the instance of the private-respondent in the writ petition.

4. It appears that on a complaint lodged by the respondent/writ petitioner herein, Kolkata Municipal Corporation (in short, “KMC”) inspected premises No.61A, Bata Krishna Paul Avenue, Kolkata and detected unauthorised construction at the said premises at the behest of the present appellant. Stop work notice was served on the appellant under Section 401 of the Kolkata Municipal Corporation Act, 1980 (in short, “1980 Act”) with intimation to Jorabagan Police Station, on April 20, 2023. The site in question was again inspected by KMC people on September 29, 2023 and it was found that the person responsible had resumed construction work defying the stop work notice. An FIR under Section 401A of the 1980 Act, was lodged against the appellant.

5. KMC invoked the emergency provision of Section 400(8) of the 1980 Act and started demolition work with the assistance of the local police. At that time, the appellant produced a copy of an injunction order passed by a learned civil Court in a title suit instituted by the appellant herein against the owners of the property in question and certain other persons who have been described as proforma defendants in the plaint of that suit. KMC immediately stopped the demolition work.

6. In the aforesaid factual background, the respondent/writ petitioner approached the learned Single Judge by filing the present writ petition for demolition of the alleged unauthorised construction made by the present appellant.

7. The learned Judge disposed of the writ petition with the following observations and directions:

“The petitioner has annexed copy of the order dated 22nd December, 2023 passed in Title Suit No.2613 of 2023 (M/S. Munna Associates Vs. Sri Tapas Mukherjee). On a perusal of the said order, it does not appear that the issue of unauthorized construction was before the learned Court. In the present case, specific averment is of unauthorized construction.

It is settled law that in respect of unauthorized construction, the order of injunction cannot be passed to hold on to a structure which has been constructed unauthorizedly without any sanctioned plan. In the instant case, it appears that the construction is going on without any sanctioned plan. Despite stop work notice being issued, the person concerned continued with further unauthorized construction and is presently relying upon the order of the Court not to proceed with the order of demolition.

Once unauthorized construction is detected, the same is liable to be dealt with in accordance with law. The Corporation has already invoked provision under section 400(8) of the Act and proceeded with the demolition work. The Executive Engineer of the Building Department, Borough-II is directed to continue with the demolition of the unauthorized construction till the entire unauthorized construction is brought down and to conclude the same at the earliest.

Officer-in-Charge, Jorabagan Police Station is directed to render all necessary help and assistance to the men and agents of the Corporation at the time of execution of the order of the demolition, if sought for.

Be it recorded that the writ petition was sought to be served upon the private respondent at the address mentioned in the cause title of the Title Suit mentioned hereinabove filed at the behest of the private respondent before the learned Civil Court but the postal endorsement shows that the postal envelope has been returned with the remark 'Out of Station, hence left and 'addressee moved'.”

8. Being aggrieved, the private-respondent in the writ petiti