Sri Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors.

Learned advocate for the private respondent no. 8 submits that, his client has preferred an appeal from the order dated July 18, 2018. He seeks an

accommodation till such time the appeal is taken up for consideration. The writ petition was taken up pursuant to the order dated October 8, 2012 of

the Hon’ble Supreme Court. The paragraph 28 of such order is as follows:

“28. In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by

respondent No.7 is pulled down without delay, we issue the following directions:

Within three months from today, respondent No.7 shall pay the price of the flats etc. to the purchasers with interest @18% per annum from the

date of payment.

The occupiers of illegal/unauthorized construction shall vacate such portions of the building within next one month.

Within next one month, the Corporation shall demolish unauthorized construction after taking adequate precautionary measures.

Respondent no.7 shall pay of Rss.25,00,000/- for brazen violation of the sanctioned plan and continuance of illegal construction despite ‘stop work

notice’. The amount of cost shall be deposited with the Kolkata State Legal Service Authority within three months and the same be utilized for

providing legal aid in deserving cases.

Reports showing compliance of the aforesaid directions be filed by the Corporation and respondent no. 7 in the Registry of the Kolkata High Court

within six months. Thereafter, the matter be placed before the learned Single Judge who had passed the order dated 28.7.2010. If the learned Single

Judge finds that any of the aforesaid directions has not been implemented then he shall initiate proceedings against the defaulting officers and/or

respondent no. 7 under the Contempt of Courts Act, 1971 and pass appropriate order.â€​

The costs directed by the order dated October 8, 2012 of the Hon’ble Supreme Court was paid in June, 2018. Factum of such payment was

recorded in the order dated July 28, 2018. Order dated October 8, 2012 of the Hon’ble Supreme Court requires implementation of the directions

contained therein as expeditiously as possible. The writ petition was taken up for consideration yesterday when a prayer for adjournment was made

and granted in order to facilitate the respondent no. 8 to press its appeal. The respondent no. 8 had more than 10 days to press its appeal against the

order dated July 18, 2018. Today the same prayer made on behalf of the respondent no. 8 cannot be accepted in view of the directions of the

Hon’ble Supreme Court contained in the order dated October 8, 2012.

Two floors of the building are required to be demolished. The floors concerned are the third and fourth floor of the building. Apparently, there are two

flats in each of such floors. One of the flats on the fourth floor is vacant. The occupants of the third and the other fourth floor flats are represented by

learned advocates. The occupants of the third floor have filed affidavits, which be taken on record. The respondent no. 8 has also filed an affidavit

dealing with such affidavits of the occupants of the third floor, which also be taken on record. The Hon’ble Supreme Court requires the

respondent no. 8 to pay the price of the flats to the purchasers with interest @18% per annum from the date of payment. The occupiers of such flats

are required to vacate such portions of the building within the next one month of receipt of payment.

So far as the third floor is concerned, the same is occupied by one Kailash Nath Shah and Suresh Tiwari. Kailash Nath Shah has a claim of

Rs.39,54,953/- towards the purchase price along with interest thereon. The respondent no. 8 admits a sum of Rs.17,03,500 to be payable as purchase

price along with interest. There is a difference of Rs.22,51,453/- between the claim made by the occupant and the amount admitted by the respondent.

In such circumstances, it would be appropriate to direct the respondent no. 8 to pay the admitted amount of Rs.17,03,500/- to Kailash Nath Shah

within one week from date. The respondent no. 8 will deposit the disputed amount of Rs.22,51,453/- with the Registrar General of this Court within a

week from date.

So far as Suresh Tiwari is concerned, he has a claim of Rs. 43,03,876/- against the respondent no. 8. The respondent no. 8 admits a sum of

Rs.15,78,250/-. Similarly, the respondent no. 8 will pay the admitted sum of Rs.15,78,250/- to Suresh Tiwari within a week from date and deposit the

disputed amount of Rs.27,25,626/- with the Registrar General of this Court within a week from date.

The occupant on the fourth floor namely Amar Nath Gupta is a tenant. According to the respondent no. 8, he has not sold such property to any

person. Amar Nath Gupta is also not claiming to be the owner of any portion of the fourth floor. He admits that, he is a tenant. Consequently, he is not

eneitled to any payment from the respondent no. 8. Amar Nath Gupta and respondent no. 8 agree that, Amar Nath Gupta will shift to any suitable

accommodation that may be provided by the respondent no. 8. Let such shifting happen within 3 weeks from date. The time period fixed is

preemptory.

Learned advocate for the respondent no. 8 submits that, his client may be allowed to furnish bank guarantee or security by way of deposit of title

deeds in respect of the disputed amounts. Such a prayer cannot be accepted given the conduct of the respondent no. 8 and its track record in not

complying with the order dated October 8, 2012 of the Hon’ble Supreme Court within the time stipulated therein. Moreover, in the experience of

the Court it has come across instances where a person furnishing a bank guarantee conveniently does not renew the same and keep the same alive till

the disposal of the proceedings. Furnishing security by way of deposit of title deeds is also not acceptable in the fact scenario as the Supreme Court

directs payment.

List the writ petition on August 8, 2018, by which time the directions for payment as made herein should be complied with. Learned advocate

appearing for the respondent no. 8 seeks fortnight time for compliance. Such prayer cannot be accepted in the facts of the case, given the track

record and the conduct of the respondent no. 8, particularly in view of the directions of the Hon’ble Supreme Court of India. Urgent certified

website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.