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Judgment
Despite service, none appears on behalf of the KMC, although the writ petitioners and the private respondents are represented in Court today.
Learned counsel appearing for the applicants contends that, during pendency of the Writ Petition bearing WPO/577/2017, the private respondent no. 7, that is, the landlord in respect of a premises wherein the applicants are tenants, demolished the tenanted portion of the property-in-dispute. It is submitted by learned counsel that the landlord had given a specific undertaking, as recorded in paragraph nos. 7 and 8 of the affidavit filed by the respondent no. 7 before this Court in connection with the writ petition (appearing at pages 24 and 25 of the present application) that the respondent no. 7 (landlord) would provide the required spaces to the writ petitioners/applicants as soon as the respondent no. 7 would complete the newly constructed building over the said premises; provided further that the respondent no. 7 would get the completion certificate regarding construction of new building over the said premises from the competent authority of the respondent Kolkata Municipal Corporation. The respondent no. 7 also gave an undertaking to the effect that the writ petitioners/present applicants would get the same area in terms of square feet as they are rightly enjoying over the said premises-in-question after getting approval from the Kolkata Municipal Corporation relating to completion certificate of the newly constructed building over the said premises in accordance with the necessary Building Rules of the Kolkata Municipal Corporation Act, 1980.
However, despite having given such undertaking, it is alleged that the respondent no. 7 demolished the applicants' portion of the said premises in violation thereof.
It is contended by learned counsel appearing for the respondent no. 7 that it was not the respondent no. 7 but the Kolkata Municipal Corporation which demolished the said structure.
That apart, it is fairly submitted by learned counsel for the respondent no. 7 that the respondent no. 7 has assured learned counsel that the said respondent would provide the applicants with adequate temporary accommodation within reasonable physical proximity of the demolished premises for the time being, till the accommodation in terms of paragraphs 7 and 8 of the affidavit of the respondent no. 7 is not handed over to the applicants.
Certain factors emerge from the materials on record. First, the undertaking of the respondent no. 7-landlord was restricted to providing spaces commensurate with the area originally occupied by the applicants, only after completion of the newly constructed building over the said premises and getting completion certificate regarding construction of such building from the Kolkata Municipal Corporation (KMC).
Secondly, it would be rather premature, at this juncture, to grant the relief of reconstruction of the demolished portion at the costs of the respondent no. 7 and to restore possession of the applicants forthwith, which would tantamount to granting the main relief which would now be available to the writ petitioners/applicants, in the event the writ petition succeeds finally, in view of the portion having already been demolished yesterday.
That apart, the respondent no. 7-landlord disputes the contention of the writ petitioners/applicants that the demolition was undertaken at the behest of the landlord and submits that the KMC demolished such structure, which was in a dilapidated condition, with the help of police officials.
It is observed from the records that the applicants had not obtained any order of interim stay at the juncture when the writ petition was entertained, which would prevent the KMC and/or the respondent no. 7 from demolishing the portion originally occupied by the applicants. Moreover, there cannot be any issue regarding the landlord being bound by the undertaking given in the affidavit, as referred to above, to hand over possession of commensurate area of the newly constructed building to the applicants after obtaining completion certificate. However, there is no scope of grant of the interim relief of reconstruction and restoration of possession at the site of demolition, as prayed for, at the present juncture.
Yet, in view of the fair undertaking given by learned counsel for the respondent no. 7 on instruction from his client, the respondent no. 7 is directed to provide adequate temporary accommodation to the applicants for the time being, within reasonable physical proximity of the demolished premises, till possession of the commensurate portion of the newly constructed building is handed over to the applicants, as per their previous undertaking.
Such temporary accommodation shall be provided by the private respondent, that is, respondent no. 7 within October 22, 2021 positively. The respondent no. 7 shall further ensure that completion certificate is obtained at the earliest from the KMC for handing over possession of a commensurate portion of the newly constructed structure to the applicants as soon as possible. It is further clarified that this order is only of an ad hoc nature and shall not affect/prejudice in any manner the rights and contentions of any of the parties in the main writ petition. All questions, including the question of maintainability of the writ petition, are kept open for being decided at the final hearing of the writ petition. The present arrangement shall be subject to any order passed by the appropriate Bench while disposing of the writ petition finally.
The parties as well as all concerned shall act on the written communication of the learned advocates appearing for the parties, accompanied by a server copy of this order, without insisting upon prior production of a certified copy thereof.
Needless to say, the main writ petition shall be enlisted, as directed previously, before the appropriate Bench on November 26, 2021 at 3:00 p.m. for final hearing. Liberty is given to the parties to mention the matter for enlistment before the appropriate Bench, subject to the convenience of the said Bench.
Accordingly, GA/1/2021 is disposed of.