D And I Taxcon Services Pvt. Ltd. vs Kolkata Municipal Corporation & Ors.

The writ petitioner has filed the instant application praying for review of the order dated 8th April, 2021 passed in WPO/153/2021.

By the said order the writ petition of the petitioner stood dismissed. The writ petition was filed challenging the notice dated 14th July, 2020 annexed at

page 19 of the General Application No. 1/2021 filed in connection with the Application for Review. The said notice was issued by the Executive

Engineer of Kolkata Municipal Corporation, addressed to the “Person Responsible: Authorised Representative of Narolia Financial Advisory Ltd.,

added respondent as per WPO No.140 of 2019.â€​

By an order dated 2nd March, 2020, a coordinate Bench of this Court directed the Kolkata Municipal Corporation to call for hearing of the petitioner

and private respondents, including added parties. The notice which was issued on 14th July, 2020 to Narolia Financial Advisory Ltd., being the added

party in the said writ application.

In terms of the order of the Court dated 2nd March, 2020, the Corporation heard the parties and thereafter the Corporation was of the opinion that a

demolition proceeding ought to be initiated against the person responsible for making unauthorised construction. Accordingly notice under Section

400(1) of the Kolkata Municipal Corporation Act, 1980 was issued to Narolia Financial Advisory Ltd.

The review applicant submits that although by the order dated 2nd March, 2020, the Court directed the Corporation to hear all the necessary parties

but even then, the Corporation could not have issued notice under Section 400(1) of the Kolkata Municipal Act, 1980 in favour of the Narolia Financial

Advisory Ltd. The reason according to the petitioner for which the notice ought not to have been issued in favour of Narolia, is that the added

respondent was no way responsible for making the unauthorised construction, as Narolia Financial Advisory Ltd. came into the picture long after the

unauthorised construction took place.

The review applicant relies upon the explanation appended to Section 400 of the Kolkata Municipal Corporation Act, 1980. “The person at whose

instance†as mentioned in the explanation, means the owner, occupier or any other person who causes the erection of any building or execution of

any work to be done, including alteration or addition, if any, or does it by himself.

Admittedly, the private respondents are the present owners of the premises in question and even though they were not directly responsible for making

the unauthorised construction, but at present they have stepped into the shoes of the owner, who at one point of time was responsible for making such

unauthorised construction.

The unauthorised construction has to be dealt with in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980. If the erstwhile

owner made an unauthorised construction and thereafter sell the said portion in favour of a third party, in that case, the person who purchases the

property with the unauthorised construction, becomes the person responsible for demolition of such unauthorised construction. If such an explanation is

not accepted, then people will go on making unauthorised construction and thereafter transfer the same in favour of third parties and claim immunity

for not removing the unauthorised construction, on the plea that they were not the person responsible for making such unauthorised construction and

notice under Section 400(1) cannot be issued against them.

The Court on 8th April, 2021 held that there was not illegality in issuance of the notice upon the private respondent no.6. The Court still holds that

there is no illegality in issuance of the said notice upon the private respondent no.6. There is neither any new fact, nor any error apparent on the face

of the record which calls for review of the order under reference.

The prayer of the petitioner for review of the order dated 8th April, 2021 accordingly fails.

The review application stands dismissed.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon completion of usual legal formalities.