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Judgment
Samapti Chatterjee, J
Petitioner has filed the present writ petition assailing the impugned order dated 12th July, 2019 passed by the Special Municipal Commissioner (G & D), Kolkata Municipal Corporation thereby passing the following order :
"Considering the facts and circumstances as started above , I am of the opinion that the existing building is declared as a condemned building as per report of building department taking into account the safety of the inmates and public in general.
The owner of the captioned premises is directed to give proper rehabilitation to all the tenants /occupiers of Premises No. 4 Bentinck Street, Ward No. 46, Borough -VI before demolition of the existing building and to provide equivalent floor area to all the tenants /occupiers after construction of new building at Premises No. 4 Bentinck Street, Ward No. 46, Borough -VI .
The existing building is to be demolished by the owner of the Premises NO. 4 Bentinck Street, Ward No. 46, Borough -VI at his own cost and risk under the supervision of an Empanelled Structural Engineer of KMC to avoid any accidental hazards . During demolition all precautionary measures are to be taken by the owner of the said premises to avoid any accidental hazards to the neighbouring premises and public in general.
The owner is directed to submit plan proposalthrough Architect /Licensed Building Surveyor(LBS) and Structural Engineer empanelled with Kolkata Municipal Corporation (KMC) to obtain the sanctioned building plan from the KMC complying with prevailing Building Rules & Regulations of KMC within 4 (four) months from the date of receiving of this order. The owner is also directed to finish the Constructional works within 24 (twenty four) months from the date of receiving of the sanctioned plan to give possession to all the tenants /occupiers of the said premises.
Failing of any of the above conditions , the authority of KMC will take appropriate steps against the owner of the said premises for the purpose of safety and security of the tenants/occupiers of Premises No. 4, Bentinck Street, Ward -46, Borough-VI" With the above order the matter stands dispose of . Let this order be served upon all the parties.
D) Sd/ Special Municipal Commissioner (G & The Kolkata Municipal Corporation " Mr. Chakraborty, learned advocate appearing for the petitioner submits that petitioner is a monthly tenant under the erstwhile owner in respect of one shop room being shop room NO. 2 on the first floor with other facilities attached thereof at the premises No. 4 Bentinck Street, P.S. Hare Street , Kolkata - 700001. It is further submitted that since the erstwhile owner refused to accept the monthly rent, therefore, petitioner as per law since 2016 has been depositing the rent before the Rent Controller. In support of his contention Mr. Chakraborty draws Court's attention at page 27 to page 41 which are the challans of the Rent Controller. All on a sudden petitioner came to know from his adjacent shop owners that one impugned order of demolition has been passed by this Special Municipal Commissioner without giving any opportunity of hearing to the petitioner or without giving any notice as per Section 412A to the petitioner who is the bona fide tenant under the erstwhile landlord. Assailing the same the petitioner filed the present writ petition. Mr. Chakraborty further contends that as per Section 412A of the West Bengal Municipal Corporation Act, 1980, it is the mandatory provision the recorded persons of the K.M.C. record should be given hearing. Unfortunately without giving any opportunity of hearing and without giving any notice impugned order dated 12th July, 2019 passed by the Special Municipal Commissioner under Section 412A. In support of his contention Mr. Chakraborty relies on Section 412A(i). Section 412A(i) is quoted below :
"Issue a notice to the owner and also occupier recorded as such in the records of the Corporation calling upon them to show cause, within such period as may be prescribed, why the building in question or any portion thereof shall not be declared to be condemned for the purpose of this section and after hearing the causes shown within the said period or such further period as may be granted, if it is found necessary in public interest to declare the building or any portion thereof condemned and should be demolished immediately for public safety , the declaration may be made to that effect requiring the building or the specified portion thereof to be demolished".
Therefore, before parting with his submission Mr. Chakraborty submits Court should quash the impugned order.
Per contra, Mr. Panda , learned advocate appearing for the KMC submits admittedly petitioner is the recorded tenant under the erstwhile owner in the Corporation record and also the petitioner is enjoying certificate of enlistment issued by the Corporation to carry on business from the said premises.
Considering the submissions as advanced by the learned advocate for the parties and after perusing the records and also perusing Section 412A(i) (supra), in my considered view, without complying the mandatory provision of the statute the impugned order has been passed by the Special Municipal Commissioner (G & D ), KMC.
Therefore, in this upshot, in my considered view since the mandatory provision of the statute has not been complied with at the time of passing the impugned order. Therefore, impugned order cannot be sustained in the eye of law as well as facts and circumstances of the case.
Accordingly, the impugned order dated 12th July, 2019 is hereby quashed and set aside.
I direct the Special Municipal Commissioner (G & D ) to revisit the issue after issuance of fresh notice upon all the parties including the petitioner and also the promoter and thereafter take a decision within twelve weeks after giving an opportunity of hearing to the petitioner or his authorised representative and the other parties including the promoter and thereafter communicate the reasoned order to the parties within one week.
With this direction the writ petition is disposed of.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties on usual undertakings.