Rajib Kumar Paul v. Gurudas Mitra

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ISSUE: These appeals are directed against the judgment and order dated 18th April, 2001 passed by the High Court of Calcutta in M.A.T. Nos. 1746, 1626 and 1627 of 1999.

FACTS:

Premises No.4H, Panchanantala Road, Calcutta, was originally sanctioned as residential. It is also not disputed that the said building was subsequently converted from residential to commercial (change of land use) unauthorizedly without obtaining sanction from the appropriate authority. In the said building, the major portion of the garage space was being used as commercial and the appellants have started business like M/s. Atithi (Restaurant), M/s. Avinandan (Sweat meats), M/s. Avisar (Furniture) and M/s. Apsara (Ladies Beauty Parlour). It is also not disputed that the appellants have also started another business namely M/s. Aithi Guest House during June, 1990. It is alleged that the said guest house has also been misused for immoral activities. We are not concerned. The aforesaid admitted facts are born out from the application dated 29.6.1993 addressed to the Municipal Commissioner, the Calcutta Municipal Corporation. In the said application, the appellants prayed for regularization of the entire irregularity and requested to allow the change of use of the places from residential to commercial. The application dated 29.6.1993 speaks for itself. The Special Officer, Building, the Calcutta Municipal Corporation, after taking into account the application for regularization and the complaint, directed to demolish the unauthorized construction by its order dated 10.6.1994. Aggrieved thereby, the appellants preferred an appeal before the Building Tribunal, which upholds the order of demolition passed by the Special Officer, Building. Aggrieved thereby, Writ Petition No.21521(w) of 1999 was preferred. The learned single Judge by its judgment and order dated 23.4.1999 although upheld the order of the Tribunal, remanded the case to the Tribunal for fresh consideration. The Division Bench of the High Court set aside the order of the learned Single Judge and allowed the appeal. The Division Bench of the High Court further directed the corporation authority to take immediate steps in terms of the order of the Special Officer and confirmed by the Tribunal. The authority was further directed to stop unauthorized use of the building either by guest house or by the bank or any other organization and/or firm and/or association under Section 416 of the Calcutta Municipal Corporation Act, 1980. CIVIL APPEAL NOS. 6834-6836 OF 2001

These appeals have been preferred by the Allahabad Bank.

REASONING:

However, by an order dated 10.6.1994 the Special Officer, Building, without considering and disposing of the application dated 29.6.1993 ordered the demolition of the unauthorized construction and, therefore, the order of demolition is not tenable in law. We are unable to countenance with this contention of the appellants. We have been taken through the entire order of the Special Officer, Building, passed on 10.6.1994. On perusal of the aforesaid order, it emerges that the Special Officer, Building, did take note of the application filed by the appellants on 29.6.1993 and after having considered the various provisions and after hearing the parties passed the order of demolition. The consideration of the request of the appellants in C.A.Nos.6831-33 for regularization of the unauthorized construction and unauthorized land is implicit in the order itself. Therefore, it cannot be said that the demolition order dated 10.6.1994 has been passed without considering the application dated 29.6.1993. Undisputedly, the appellant-bank is a tenant of the owner of the house. The bank has to sail or drown with the owner of the house. When the entire building of four floors is ordered to be demolished, the 1st and 2nd floors alone cannot survive. Therefore, there is no substance in the contention of the appellant-bank.

DECISION:

For the reasons afore stated, all these appeals are devoid of merits, and are, accordingly dismissed. No costs.