IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Partha Sarathi Sen WPA 1822 of 2024 Sri Ganesh Chandra Das Vs. Commissioner, Siliguri Municipal Corporation & Ors. For the petitioner : Mr. Dr. Navin Barik Ms. Esha Acharya For the Municipal Corporation : Mr. Debarshi Dhar For the private respondent no. 4 : Mr. Sabir Ahmed Mr. Hillol Saha Poddar Mr. Abhijit Saha Heard on : 08.01.2025 Judgment on : 08.01.2025 PARTHA SARATHI SEN, J.: 1. By filing the instant writ petition the writ petitioner has prayed for quashing and/or setting aside the order of demolition dated July 25, 2024 as passed by the respondent No.1 authority. 2 2. At the time of hearing learned advocate appearing for the writ petitioner at the very outset draws attention of this Court to page No.47 of the instant writ petition being a photocopy of the notice dated April 20, 2024. It is submitted that pursuant to the said notice as issued by the respondent no. 1 the writ petitioner expressed his inability to present himself at the time of hearing on account of his wife’s serious illness followed by hospitalization. It is contended that such request was not conceded with by the respondent no.1 authority and thus finding no other alternative the writ petitioner being the husband of the recorded owner of the building in question had to approach before the respondent No.1 wherein the impugned order of demolition was passed. 3. Mr. Barik, learned advocate appearing on behalf of the writ petitioner contends that considering the fact that at the time of alleged hearing before the respondent No.1 there was no proper representation on the part of the owner of the building in question, the impugned order of demolition may be set aside since the same is violative of principles of natural justice. 4. In his next fold of submission Mr. Barik further contends that the construction which is found at the rear side of the aforesaid building though is beyond the sanctioned plan but the same cannot be termed as ‘illegal’ and on the contrary the same may be 3 construed as a ‘minor deviation’ which may be regularised by payment of penalty or requisite fees pursuant to various notifications as issued by the Department of Urban Development and Municipal Affairs. 5. In his third fold of submission Mr. Barik further contends that since the sanctioned plan of the subject building was obtained under the erstwhile Siliguri Municipal Corporation Act, 1990 no proceeding can be permitted to be allowed under the West Bengal Municipal Corporation Act, 2006 (hereinafter referred to as the said Act). 6. Per contra Mr. Dhar, learned advocate appearing on behalf of the Siliguri Municipal Corporation submits before this Court that pursuant to an order dated 06/09/2024 as passed by a co- ordinate Bench in this writ petition a fresh inspection was taken at the subject premises and pursuant to such inspection a fresh hearing was also conducted by the respondent no. 1 wherein another demolition order was passed in respect of a single storied RCC structure measuring about 2.475 mtr. X 2.250 mtr. as exists at the rear side (North-West corner) of the subject building since the same is found to be contrary to the sanctioned building plan no. 758 dated 25/11/2005. It is further submitted by Mr. Dhar that even at the last hearing due opportunity was given to 4 the writ petitioner to justify his alleged action in raising the said unauthorized construction. 7. In course of his submission Mr. Sabir Ahmed, learned advocate for respondent No.4 supports the contention of Mr. Dhar. It is submitted by Mr. Ahmed, learned advocate appearing on behalf of the private respondent no. 4 that the alleged construction has been done in the mandatory side space which cannot be covered under the said Act of 2006 and the relevant building rules thereon and by no stretch of imagination the same can be termed as a minor deviation as wrongly claimed on behalf of the writ petitioner. 8. On careful consideration of the entire materials it appears to this Court that so far as the aforementioned RCC structure measuring about 2.475 mtr. X 2.250 mtr. as situated at the rear side (North-West corner) of the subject building located at Jiban Sathi Apartment, Babupara, Ward No.26 of Siliguri is concerned, it is undisputed that the aforementioned structure has been constructed without obtaining any sanctioned plan from the Siliguri Municipal Corporation. On perusal of the order under challenge as well as the subsequent order dated 23/10/2024 as passed by the respondent No.2 it reveals that the present writ petitioner was given due opportunity of hearing to justify his action in raising such construction. 5 9. From the order impugned dated 25/07/2024 as well as from the order dated 23.10.2024 this Court has got no hesitation to hold that the said construction is totally unauthorized construction and the respondent No. 2 has come to a factual finding with regard to the illegal nature of such construction and thus rightly exercised his power under Section 287 of the said Act of 2006. 10. This Court finds no force in the submission of Mr. Barik that since the sanctioned plan of the subject building was obtained under the previous Act no order of demolition can be passed under the Act of 2006 in view of the fact that the old Act has already been repealed and with the commencement of the said Act of 2006 the Municipal Commissioner has been given authority to pass an order for demolition of the unauthorized construction. 11. As rightly pointed out by Mr. Dhar as well as by Mr. Ahmed that since the writ petitioner was given adequate opportunity of hearing by the respondent No. 2 prior to passing an order of demolition under Section 287 of the said Act of 2006 the respondent No. 2 has duly complied with the principles of nature justice and, therefore, the writ petitioner cannot be permitted to say that the order of demolition as has been challenged before this Court is not sustainable in the eye of law. 6 12. This Court thus finds no merit in the instant writ petition. Accordingly, the instant writ petition is dismissed. 13. The writ petitioner is directed to comply with the order dated 23.10.2024 as passed by the Commissioner, Siliguri Municipal Corporation positively within a fortnight from today failing which this Court grants liberty to the Commissioner, Siliguri Municipal Corporation to demolish the illegal structure as mentioned in his order dated 23/10/2024 by taking help of police. 14. It is further ordered that in the event the Commissioner, Siliguri Municipal Corporation made a requisition for deployment of sufficient number of police personnels, the Commissioner, Siliguri Police Commissionerate shall provide those numbers of police personnel for execution of the work of demolition forthwith. 15. It is further ordered that the cost of the demolition as well as the cost of deployment of Police are to be recovered from the writ petitioner and in the event such cost is not paid that would become the first charge upon the property in question and in the event such payment is not made within three months from the demolition of the said structure, liberty is given to the Commissioner, Siliguri Municipal Corporation to take appropriate steps for recovery of the said amount in accordance with law. 16. It is further directed that the writ petitioner will remove all the deities from the aforementioned illegal construction within seven 7 days from today failing which liberty is given to the respondent No. 2 to approach this Court in contempt. 17. With the aforementioned observation the instant writ petition being WPA 1822 of 2024 is disposed of. 18. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all necessary formalities. (PARTHA SARATHI SEN, J.) Aritra Suvayan A.R. (Court)