DEBANGSU BASAK,J. - (1.) A reasoned order dated July 16, 2017 passed by the Municipal Commissioner, Kolkata Municipal Corporation is under challenge in the present writ petition.
(2.) Learned senior advocate appearing for the petitioners submits that, the petitioners are the owners of area in excess of thirty-five acres covering two plots being R.S. Plot No.126/165 and 124/167. The private respondents are carrying on a market at such plots without obtaining requisite permissions from the Kolkata Municipal corporation. There are constructions in such plots which are unauthorized. Subsequent to the petitioners purchasing such plots, a representation was made to the corporation authorities to look into such aspects. The corporation authorities had failed to do so. Consequently, the petitioners were constrained to approach the writ Court. The writ petition of the petitioners being W.P. No.25492(W) of 2016 was disposed of by a judgment and order dated June 6, 2017 requiring the Municipal Commissioner to consider the representation, in the light of the observations recorded in such judgment and order, and to pass a reasoned order, after affording reasonable opportunity of hearing, to the private parties. He submits that, the Municipal Commissioner, did not take into account, the observations made by the High Court in its judgment and order dated June 6, 2017. Although, the Municipal Commissioner recorded the contentions of the petitioners that, the respondents are running a private market illegally and that, the constructions thereat are unauthorized, the Municipal Commissioner failed to decide on such two issues. He refers to the affidavit-inopposition filed by the corporation and submits that, the corporation authorities have, in such affidavit, admitted that, there are no sanctioned building plan in respect of the constructions concerned. He submits that, the finding of the Municipal Commissioner that, the structures standing at the property concerned stands regularized by virtue of various provisions of the Act noted therein, are perverse. Such findings cannot be sustained on the basis of the provisions of law noted or on the factual situation obtaining. He refers to 2013 Volume-V Supreme Court Cases Page-336 (Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and Ors. ) and submits that, the unauthorized constructions are required to be removed.
(3.) Learned senior advocate appearing for the corporation submits that, the Municipal Commissioner had acted in terms of the order of the High Court dated June 6, 2017. The High Court did not decide the two issues raised by the petitioners. He refers to the representation made by the petitioners to the Corporation dated February 15, 2016. He submits that, the constructions at the locale were found to be subsisting since 1977. The plots at which the constructions are existing, were a part of an area which were added to the Kolkata Municipal Corporation limits on January 7, 1984. The representation dated February 15, 2016 makes out a case of violating the provisions of the Kolkata Municipal Corporation Act, 1980 so far as the construction and market place are concerned. He submits that, if the constructions are prior to the date when the plots were added to the Kolkata Municipal Corporation, then the question of applicability of the provisions of the Kolkata Municipal Corporation Act, 1980 is doubtful. In fact, the Municipal Commissioner noticing such difficulties had observed in the impugned order, that, the provisions of Section 634 of the Kolkata Municipal Corporation Act should be resorted to, for removing the difficulties. He submits, drawing the attention of the Court to the various portions of the impugned order, that the impugned order is reasoned, and that, the Municipal Commissioner had dealt with every aspect of the allegations of the rival private parties. The Municipal Commissioner had returned a finding as recorded in the impugned order. There be no perversity in the impugned order. The writ Court need not intervene.;