Chandan Kumar Banerjee, J. - (1.) By this application under Article 226 of the Constitution in the Constitutional Writ Jurisdiction of this Court the petitioner has challenged the authority of the respondents to direct the demolition of the building of the petitioner on holding No. 263 G.T. Road under the Uttarpara Municipality. The land whereon or on part whereof the said building stands is recorded as Dag No. 1366 under R.S. Khatian No. 1542 in Mouza Uttarpara in the name of the petitioner. The building according to the petitioner was constructed by the grandfather of the petitioner late Rajkissen Mukherji of Uttarpara more than 150 years back abutting on the Grand Trunk Road. The said building is assessed to Municipal rates and taxes by the Uttarpara Municipality and the petitioner is paying the Municipal rates and taxes. According to the petitioner there has never been any objection with regard to the said building by any one at any time before.
(2.) On the 24th November, 1975 the Sub-Assistant Engineer, Public Works Department, Serampore, the respondent No. 12A, along with several other officers visited the locality of the petitioner including the land of the petitioner and directed the petitioner verbally to demolish the structure on the said plot and to deliver up vacant possession thereof within 96 hours and threatened that in default the said structures would be demolished by State Government at the cost of the petitioner and possession would be taken forcibly by the officers men and employees of the State Government. The petitioner thereafter made representations and enquiries at the offices of the Executive Engineer, Public Works Department, Hooghly Division, Chinsura and Assistant Engineer, Public Works Department. Sub-Divisional Office, Serampore, the respondents No. 8 and 9 respectively, against the said verbal instructions of the respondent No. 12A, but the petitioner was directed to act according to the verbal directions as given by the respondent No. 12A. The further case of the petitioner is that on the 25th November, 1975 the petitioner made verbal representations to the respondents explaining his case and demanding justice but the respondents did not pay any heed to his representations. The petitioner further states that no notice or order in writing was cither served on the petitioner or shown to him and there is no proceeding or order passed against the petitioner in any proceedings under any Act or provision of law directing demolition of the said building of the petitioner. The said verbal order or direction of the respondent No. 12A is wholly illegal, arbitrary and in violation not only of principles of natural justice but also the fundamental rights of the petitioner.
(3.) Inspite of service of the Writ and copy of the petition on the respondents no affidavit has been filed by or on behalf of the respondents and no one has appeared on behalf of the respondents. Mr. Mrinal Kanti Das, learned Advocate for the petitioner has submitted that the order is wholly arbitrary, malafide and illegal. There is no written order or any proceedings under the law directing the petitioner to demolish his building and the said verbal order is not Only in violation of the principles of natural justice but in gross and blatant violation of the fundamental rights of the petitioner and right to property of the petitioner is sought to be taken away by an executive fiat. Mr. Das relied on the decision of the Supreme Court in Bishan Das and ors. v. State of Punjab and others, reported in AIR 1961 SC 1570, and strongly relied on the following observations of the Supreme Court : "A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country ; a person who bonafide puts up construction on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quidquid piantatur solo, solo cedit.;