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Judgment
The writ petitioners are aggrieved by a notice directing demolition of a building which has been developed by the writ petitioners and 60 per cent. of
which is presently in the control of the writ petitioners. Although the writ petitioners have sought leave for dispensing with the requirement of Rule 26
of the Writ Rules, some respondents were attempted to be served after leave was obtained from this court today morning.
Mr. Sudip Deb, learned counsel appearing for the writ petitioners, submits that on 28th May, 2018, he has been served with a copy of an affidavit-in-
opposition filed by The Chairman and The Assistant General Manager, Railway Vikash Nigam Limited in WP No. 30359(W) of 2017 filed by one of
the owners of the residential flats in the said building. Counsel points out that in the affidavit-inopposition which has been affirmed on 14th May, 2018,
the said respondents have made categoric statements to the effect that in view of construction of the Metro Corridor, steps have been taken for
acquisition of private land under Section 7 of The Metro Railways (Construction of Works) Act, 1978 (the Act, for short) including RS Dag Nos. 323,
326 and 327 in Mouza Mahisgote, which counsel states belong to the petitioners. Counsel further submits that although the said affidavit mentions that
a notice has been issued under Section 7(1) of the Act and that a notification for acquisition of the specific Dag numbers was published in two
newspapers on 9th June, 2013, no notice as mandated under the Act has been served upon the petitioners. Counsel relies on Section 7 of the Act
dealing with publication of notification for acquisition and further on Section 21(4) of the said Act which is set out below:
“Where any notification has been issued under sub-section (1) directing the owner or the person having control over any building to demolish such
building or to make additions or alterations to such building or to make additions or alterations to such building or to desist from making any
development specified in such notification, a copy of the notification containing such direction shall be served on the owner of, or the person having
control over, such building, as the case may be, -
(i) by delivering or tendering it to such owner or person; or
(ii) if it cannot be delivered or tendered, by delivering or tendering it to the agent of such owner or person or any adult male member of the family of
such owner or person or by affixing a copy thereof on the outer door or on some conspicuous part of the premises in which such owner or person is
known to have last resided or carried on business or personally worked for gain; or failing service by these means; (iii) by post.â€
Counsel submits that the procedure as described under Section 21(4) of the Act has not been complied with by the respondents and seeks an order of
injunction on respondent nos. 2 and 3 on that basis. The immediate anxiety of the petitioners arises from the fact that in the following statement has
been made in the affidavit-inopposition:
“…. The said infringement has also been vetted by the State Government, Land Acquisition Department which is already annexed hereto.
Accordingly the infringed portion is required to be demolished and to give effect to such demolition, steps have been taken to appoint a team of
technical experts from Jadavpur University to conduct feasibility study for demolition of the said infringed portion with provision for restoration,
rehabilitation of the remaining building. ….â€
Counsel submits that as required under Section 21(4) of the Act, no copy of any notification for acquisition or otherwise was served on the petitioners
who qualify under sub-section 4 of Section 21 as being the owner and/or the person having control over the said land by reason of holding 60 per cent.
of the said building. Having heard counsel appearing for the petitioners, I consider it a fit case for passing interim orders as prayed for. It does not
appear from the records in the writ petition that the respondents have complied with the statutory mandate of the Act. It appears from the pleadings in
the writ petition, particularly those in paragraph 26(a), that the petitioners came to learn of the impending act of demolition only from a copy of the
affidavit-in-opposition filed by Railway Vikash Nigam Limited in the other writ petition where the present writ petitioners is not a party. It is also
evident from submissions of counsel that the three notifications which have been annexed to the writ petition and were published in June, 2011, March,
2013 and February, 2014 pursuant to Sections 7 and 10 of the Act have also not been served on the writ petitioners.
In my view, the act of demolition, if carried out, will cause irrevocable loss and injury to the petitioners and they will be left without any remedy. When
such act of demolition is without due compliance of statutory provisions, urgent orders are called for. For the reasons stated above, respondent nos. 2
and 3 are restrained from taking any step towards demolition of the residential building standing at RS Dag Nos. 323, 326 and 327 in Mouza Mahisgote
for a period of three weeks from the date of communication of this order.
Since the respondent no. 3 admittedly could not be present on account of leave having been granted by this court only today morning, the respondents
will be at liberty to move the regular bench for appropriate orders. Urgent photostat plain copy of this order, if applied for, be supplied to the parties
upon compliance of requisite formalities.