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In Re: Ram Awatar Agarwal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Judge
Reported inAIR1982Cal191
ActsCalcutta Municipal Act, 1951 - Sections 5(51), 187, 414(3), 414A, 560 and 561; ;Constitution of India - Article 226
AppellantIn Re: Ram Awatar Agarwal and ors.
Advocates:Sankar Das Banerjee, ;Dipankar Ghosh, ;Samarjit Gupta and ;T.K. Sen, Advs.
DispositionApplication dismissed
Excerpt:
- orderb.c. ray, j. 1. this application is directed against three demolition orders passed by the deputy commissioner, corporation of calcutta for demolition of the unauthorised structure i.e. the 14 storied building at 174, chittaranjan avenue, calcutta, on the ground that copies of the order made under section 414 (3) of the calcutta municipal act, 1951 were not served on these petitioners who are occupants of all these 13 floors of the aforesaid premises and also that there has been a non-compliance of the provisions of sections 560 and 561 of the said act, it has also been challenged that there has been a total violation of the principles of natural justice by refusing to give the petitioners who are seriously prejudiced and affected by the impugned orders of demolition dated 15-5-78.....
Judgment:
ORDER

B.C. Ray, J.

1. This application is directed against three demolition orders passed by the Deputy Commissioner, Corporation of Calcutta for demolition of the unauthorised structure i.e. the 14 storied building at 174, Chittaranjan Avenue, Calcutta, on the ground that copies of the order made under Section 414 (3) of the Calcutta Municipal Act, 1951 were not served on these petitioners who are occupants of all these 13 floors of the aforesaid premises and also that there has been a non-compliance of the provisions of Sections 560 and 561 of the said Act, It has also been challenged that there has been a total violation of the principles of natural justice by refusing to give the petitioners who are seriously prejudiced and affected by the impugned orders of demolition dated 15-5-78 and 21-4-81 by not being given any opportunity of filing any objections against the purported orders and of denying any opportunity of hearing of their objections against those orders. On hearing orally the learned counsel for the petitioners ah interim order was made on 17-2-82 to the following effect. The respondents including the Corporation of Calcutta and/or its officers and servants were restrained from taking any step towards demolishing the tenanted portion occupied by the petitioners as well as from disconnecting the water supply in respect of so far as the tenanted portion is concerned at No. 174, Chittaranjan Avenue, Calcutta till 22-2-82 and the petitioners were directed to file the application duly affirmed by Friday, Feb. 19, 1982 on serving a copy of the said application on Mr. Pradip Kumar Ghose, learned Advocate for the Corporation of Calcutta. The application was specially fixed for hearing on 19-2-82 at 2 P.M.

2. Thereafter the petitioners served a copy of the application that has been affirmed by them on the learned Advocate for the respondents. The interim order is continuing.

3. The petitioners who are about 60 in number claimed in this petition that they are occupying all the 13 floors except the first floor which is occupied by the Rajasthan Bank Ltd. as tenants under one Shyamlal Agarwal who is admittedly the lessee from one Durga Devi Bhakat, the owner of the aforesaid premises. It has been further stated that as regards 10 to 13 floors of the said premises out of these petitioners 17 of them (not specified in the petition) are occupying as tenants in July 1981, It has also been stated that for the first time these petitioners came to know on 16-2-82 from the newspaper report that the building was going to be demolished. They tried to meet the lessee Shyamlal Agarwal (respondent No. 11) on 16th February, 1982 but could not meet him and on 17th February, 1'982 these petitioners however met the respondent No. 11 and they were informed that three purported orders of demolition were passed in gross violation of the principles of natural justice and in gross violation of the statutory provisions and out of these three demolition orders the first one related to demolition of ground floor to 6th floor of the said premises. They were also informed by the respondent No. 11 that the challenge thrown against the first demolition order became unsuccessful up to this Court and as regards the other two demolition orders challenge was made in two appeals being Appeals Nos. 63 and 64 of 1981-82 before, the Building Tribunal and stay was obtained which is still in force. In this petition it has also been stated that one of the tenants i.e., petitioner No. 60 instituted a suit being T. S. No. 192 of 1982 in the City Civil Court, Calcutta on 5-2-82 challenging the demolition order and an interim order was obtained on an application under Order 39, Rule 1, C.P.C. restraining the Corporation of Calcutta from proceeding with the work of demolition. The said order is in force even now,

4. On these grounds the instant application has been made and it has been submitted therein that the mandatory provision of Section 414 (3) has not been complied with, namely, no copy of the order of demolition passed by the Corporation has been served on any of the petitioners who are occupants of the said premises, It has also been submitted that there has been no non-compliance of the provision of Section 557 of the Calcutta Corporation Act, 1951 and in view of the stay order issued by the Building Tribunal against the demolition orders passed on 21-4-81 in respect of the demolition of 7th to 13th floors of the said premises the Corporation Authorities are acting wholly illegally in their attempt to proceed with the work of demolition of the aforesaid premises.

5. An affidavit in opposition has been affirmed on 25-2-82 by Shri. Achinta Kumar. Sarkar, Deputy Commissioner, Corporation of Calcutta, on behalf of respondents Nos. 1 to 6. It has been stated in para 4 of the said affidavit that according to the records of the Corporation of Calcutta the said premises is owned by one Smt. Durga Devi Bhakat, the recorded owner in the Assessment Register of the Corporation. She leased out the same to respondent No. 11 Shyamlal Agarwal who has been recorded as an occupier as Karta of a Hindu undivided family in the Assessment Register maintained in the office of the Corporation of Calcutta. It has also been stated in para 5 of the said affidavit that none of the tenants i.e. the petitioner is recorded as occupier in the Assessment Register. The petitioners also did not apply for having their names recorded as occupiers in the Assessment Register. During the period of construction of the said building from time to time there has been constant posting of guards and/or police pickets and action has been taken by Municipal Officers with the help of police to arrest persons engaged in unauthorised construction and finally there was an order of demolition made on 15-3-78 when the building had been raised up to 6th storey. Anyone who took possession of the building as tenant did so with full knowledge that the structure was unauthorised. In para 10 the unauthorised structures that has been made has been given in details and it appears that the entire structure from the ground floor to the 13th floor was constructed without any observance of the provisions of the said Act as well as the schedule 16 and other rules framed under the said Act. It has also been submitted that the drainage connection was obtained unauthorisedly in utter violation of the provisions of Rules 59 and 60 of Schedule 16 of the said Act and the building has been condemned by the Fire Service Advisor to the Government of West Bengal who found it to be patently fire hazard virtually a death trap in the event of a sudden outbreak of fire. A copy of the report of the said Fire Officer was annexed as annexure A to the affidavit in opposition. It has been stated in para 12 (1) that an appeal was preferred to the Building Tribunal by the respondent No. 11 against the first order of demolition dated 15-5-78 and similar appeals were also preferred by the respondent No. 11 against the two subsequent demolition orders both of which had been passed on 21-4-81. The appeal against the first demolition order was dismissed by the Building Tribunal on 29-5-81 against which an application under Article 226 of the Constitution of India was made before this Court and the same was dismissed by P.C. Borooah, J. on 22-7-81. Against the said order an appeal was taken before the Appeal Bench of this Court and the same also was dismissed on 16-11-81. Ultimately a special leave petition was taken before the Supreme Court of India and it was also dismissed on 15-2-82. It has been further stated in para 20 of the affidavit in opposition that the respondents denied that any one is occupying 10 to 13 floors of the said premises. It has also been denied that any of the petitioners was in actual occupation of the said premises either in 1977 or in 1978. The petitioners are put to the strict proof of this allegation. It has been said with all emphasis that none of the said petitioners was in occupation of the said premises either in 1977 or in 1978 and in fact no part of the said building was in habitable condition in the year 1977 or till 29th May, 1978 being the date of service of the order under Section 414 (3) of the said Act. It has been further stated that the construction of 7th to 10th storeys were made between Sept. 1978 and Nov. 1979 and the construction of 11th to 14th stories were made between Nov. 1979 and Nov. 1980 and as such there could be no question of any one occupying the said building from 7th to 10th stories at the time when the order under Section 414 (3) was made on 15-5-78.

6. In para 24 of the said affidavit it has been averred that the petitioners have not stated as to exactly when they had been in possession of the said premises, In any event they did so in violation of the provisions of Section 392 of the said Act. It has been further stated that the petitioners took possession long after the passing of the first demolition order which was made on 15-5-78 as at that time operation of the order of demolition remained stayed by the order of the Building Tribunal and no action could be taken to demolish the said structure.

7. An affidavit in reply has been filed affirmed by the petitioner No. 1 Ram Awtar Agarwal. In para 24 of the said affidavit it has been stated that the deponent categorically denied that none of the petitioners was in occupation of the said premises either in 1977 or in 1978 as alleged. It has also been denied that in fact no part of the said building was in habitable condition in the year 1977 or till 29-5-78 being the date of service of the order under Section 414 (3) of the Act. It has been further stated that as regards construction of ground floor to 6th floor the petitioners have been duly informed by the occupiers of the ground floor and 2nd to 6th floor that the same was ready for occupation as early as in 1977. It has been further stated that as the petitioner No. 1 was interested for occupation either in the 7th or 8th floor immediately after completion of the same he took possession in the 8th floor and he disputed that the construction of 11 to 14 stories were made between November 1979 and November 1980.

8. Mr. Sankardas Banerjee, learned counsel and subsequently Mr. Dipankar Ghose, learned counsel appearing on behalf of the petitioners have submitted firstly by referring to Section 414 (3) of the said Act that the mandatory requirement of service of a copy of the order of demolition passed by the Commissioner, Corporation of Calcutta was not served on the petitioners who are occupiers of the premises. In this connection it has been further submitted that the Act does not envisage that an occupier whose name has been recorded in the Assessment Register kept by the Calcutta Corporation under Section 187 is only entitled to have this notice by referring to the definition clause of the word 'occupier' in Section 5 (51) of the Calcutta Municipal Act. It has also been submitted in this connection that Section 187 (3) of the said Act even assuming for argument's sake that it applies to the ease of an occupier whose name has been entered in the Assessment Book does not cover the case envisaged in Section 414 (3) i.e. it does not cover an order of demolition made under this provision. It has therefore been submitted that Section 414 (3) which is a provision giving a mandate on the Corporation Authorities to serve a copy of the order has to be followed and the Corporation cannot proceed with the work of demolition on the basis of the impugnud orders without complying with this imperative provision of Section 414 (3). The second tier of Mr. Ghosh's submission is that since the provision of Section 414 (3) does not lay down any specific time or period when such an order is to be served therefore the order has to be served not on the date of passing of the order of demolition by the Commissioner of Corporation of Calcutta but on the date when the order is going to be executed. Mr. Ghosh further submits in this connection that there must be two opportunities. One when the order is passed and another opportunity when the demolition order is going to be actually executed. In this connection Mr. Ghosh referring to the provision of Section 560 and Section 561 of the said Act submitted with great persuasiveness that they are to be complied with viz. a further notice is to be given by the Corporation Authorities to the occupants even after service of the order under Section 414 (3) giving them a reasonable period for carrying out the demolition order and if during that period any objection is filed by the occupants that has to be heard and decided and thereafter the order can be executed. It has therefore been submitted that the impugned attempts on the part of the Corporation of Calcutta to proceed with the demolition work on the basis of the demolition orders are not in accordance with law. Mr. Ghosh also cited a large number of decisions on the question that opportunity of hearing has to be given to a person whose rights are seriously affected by the impugned orders of demolition even if there is no specific provision to that effect in the Act itself unless the said opportunity of hearing is expressly excluded by the Act. Mr. Ghosh also submitted that the petitioners are all occupants of the premises in question and though their conduct may be very bad that does not in any way prejudice their rights to get remedy or redress. Lastly Mr. Ghosh contended that since there is an order of stay of operation of the order of demolition dated 21-4-81 and the said order is pending even now this Court will not permit the Corporation of Calcutta to proceed with the demolition work.

9. Mr. Pradip Kumar Ghosh, learned Advocate appearing on behalf of the Corporation of Calcutta, has submitted in the first place that the entire building from ground floor to 13th floor was constructed by the lessee Shyamlal Agarwal (respondent No. 11) without any compliance with the provisions of the Calcutta Municipal Act, 1951 as well as Schedule 16 providing for the manner of erecting new buildings and the other rules framed under the Act. It has been further submitted by Mr. Ghosh that all the three demolition orders were duly served on the recorded occupier in the Assessment Register kept by the Corporation of Calcutta i.e. respondent No. 11 and the respondent No. 11 challenged the first demolition order right up to the Supreme Court and became unsuccessful in his challenge. It has been further submitted by Mr. Ghosh that the building could not be occupied unless a certificate is issued under Section 392 of the said Act and also no water connection could be given unless Rules 59 and 60 of Schedule 16 are complied with. The water connection that was taken wholly illegally and unauthorisedly and as such the same was disconnected against which two of the alleged tenant occupants and respondent No. 11 came up before this Court in an application under Article 226 of the Constitution and the prayer for stay was not granted but a direction was given for supply of water by tanker lorry on payment of charges, For non payment of those charges the supply had been stopped and the said order had not been challenged before the Appeal Bench of this Court. It has therefore been submitted by Mr. Ghosh that no interim order regarding restoration of supply should be made by this Court as in that case there is a chance of conflicting orders by the Benches of this Court. It has been further submitted by Mr. Ghosh that the building is a condemned building and the first floor tenant Rajasthan Bank Ltd. came to occupy this building sometime in Sept. 1978. Before that no other person came to occupy as tenant of the said building. Mr. Ghosh also submitted that Ms above submission will be reinforced by the averments made in the petition as well as in the reply to the effect that no date was given as to when exactly each of these petitioners came to occupy the disputed premises. If the petitioners knowing fully well that the premises have been constructed without any compliance of the mandatory provisions of the Act and the rules framed thereunder occupied the premises then by their own conduct they should be deprived of any equitable relief from this Equity Court. Mr. Ghosh also submitted that right flows from the statute and non-observance of the statute in the manner of construction of a building does not entitle the petitioners who claim to be occupants of the building to have any right in respect of their such occupation in respect of the aforesaid premises. The application according to Mr. Ghosh is therefore liable to be dismissed.

10. To decide the important questions that have been raised in this writ application it is imperative to state the background and the circumstances under which the building was constructed and the Corporation Authorities ultimately passed the impugned orders of demolition on 15-5-78 and 21-4-81. The building existing on the premises in question was originally an old building which was five storeyed, It appears that respondent No. 11 after taking lease of the said building from one Smt. Durga Devi Bhakat, the owner of the said premises, submitted one plan for staircase and thereafter he brought a suit being Title Suit No. 1169 of 1977 in the City Civil Court in 1977 and obtaining a stay order the constructions were made without complying with the requirements of the provisions of the Act viz. by applying for sanction as required under the Act and Schedule 16 of the said Act for proceeding with the construction. It also appears that new construction being put up on each storey by demolishing the old structure and the entire building from ground floor to 13th floor has been constructed and there is not a whisper that at any point of time the owner or for that the lessee the respondent No. 11 has ever tried to follow or respect the mandatory provisions of the Act and schedule 16 by submitting a proper plan, getting the same sanctioned and then starting the work of construction. It also appears that from time to time the Corporation posted guards, police pickets and as appears from paragraph 12 of their affidavit in opposition arrests were made of persons engaged in making such illegal construction from time to time. But unfortunately the construction was carried on and all this action could not dissuade the respondent No. 11 Shyamlal Agarwal from going on with his illegal construction of this premises. It also appears that on 11-5-77 notice under Section 416 of the Calcutta Municipal Act, 1951 was served on respondent No. 11 by the Commissioner asking him to stop the illegal construction. Again another notice was served on 25-7-77 under Section 414 but in total defiance and/or contravention of those notices the work was carried on. Ultimately the Corporation was compelled to start demolition proceeding on 13-1-78 and on 15-5-78 the first order of demolition of structure from ground to 6th floor was made by the Deputy Commissioner, Corporation of Calcutta. This notice undoubtedly was served on respondent No. 11 Shyamlal Agarwal and he preferred an appeal under Section 414A of the said Act before the Building Tribunal. Being unsuccessful he came up before this Court in an application under Article 226 of the Constitution of India and here also the application failed. Then he preferred an appeal and that appeal was also dismissed and ultimately a special leave petition was taken against the order of the appeal court before the Supreme Court of India and there also the leave petition was rejected by the Supreme Court on 15-2-82. In the meantime the respondent No. 11 and two of the tenants came up before this Court against the disconnection of water supply and a prayer for interim order was also made. Certain orders were passed which I have stated earlier by p. C. Borooah, J., whereby direction was given to the Corporation of Calcutta to supply water by water tankers on payment of charges. As the charges were not paid and it appears from the averments that a sum of Rupees 13,000 remaining due to the Corporation of Calcutta on this account water supply by tanker lorries was stopped. In the meantime another chapter began. A title suit has been filed in the City Civil Court, Calcutta by one of the petitioners on 5-2-82 which is before the passing of the order by the Supreme Court on the special leave petition and in that suit an order of stay was obtained as I have stated hereinbefore. This is the short background and chequered career of this case.

11. Now let me consider the legal arguments and/or submissions that have been advanced on behalf of the petitioners. Section 414 provides that the Commissioner if satisfied that the erection of any building has been commenced without obtaining any permission required to be obtained by or under this Act or is being carried on or has been completed otherwise than in accordance with the particulars on which such permission was based he may without prejudice to any action that may be taken under any other provision of this Act, by written notice require the person responsible to demolish such erection, alteration or addition, as the case may be, or to show cause why such erection, alteration or addition should not be demolished or the alteration should not be made. Sub-section (2) of the said section also provides that such a notice can be issued by the Commissioner notwithstanding the fact that the valuation of such building has been made under Chapter XI for the assessment of the consolidated rate. Sub-section (3) of the said section empowers the Commissioner that if the person responsible fails to demolish such erection, alteration, etc. the Commissioner may order the demolition of erection, alteration, etc. provided that a copy of the order shall be served upon the owner and the occupier thereof and no such action shall be taken until expiry of 30 days from the service of the said order. On a plain reading of this section it is abundantly clear that a duty is cast upon the Commissioner, Corporation of Calcutta, that before passing any order of demolition of any building the Commissioner is to be first satisfied that the work or construction in question has been commenced and/or completed without any permission which is necessary under the provisions of the Act and the construction has been made in utter violation of the terms of the permission granted in a case where such permission has been granted. Secondly, if the Commissioner is so satisfied then he will have to serve notice on the person responsible for doing such work to demolish such erection or alteration or to show cause why such erection or alteration should not be demolished. Thirdly, if the person responsible for such illegal construction or alteration fails to comply with the notice or fails to show cause then the Commissioner will make an order directing the persons responsible for such work to demolish the erection, alteration, etc. and the order has to be served upon the owner and his occupier and 30 days time will have to be given during which no action would be taken. The first argument of Mr. Ghosh, learned counsel for the petitioners, is that this order under Section 414 (3) has got two parts. The first part contains the service of the order on the owner as well as on the occupier and the second part is after service of the order and objection raised to the said order and even appeal preferred under Section 414A fails even then the Corporation cannot straightway enforce its order of demolition. Then the execution part begins and the Corporation has to give another notice asking him to show cause, in other words, giving him an opportunity of hearing and giving him some time so that the occupant is not inconvenienced. In this connection Mr. Ghosh has also referred to Section 560 and Section 561 of the said Act and submits that any requisition or order made by the Corporation under this Act or under any rule or bye-law a reasonable period has to be prescribed in the notice for carrying out such requisition or order and if any objection is filed under Section 561 such objection has to be placed before the Commissioner for determination and pending determination of such objection the carrying out of the requisition or the order has to be stayed. It has been further submitted that Sub-section (5) of Section 561 cannot be called in aid in support of his argument that in view of the specific provisions made in Section 414 (3) these provisions will not apply. I am unable to accept this construction of Section 414 (3) of the said Act read with Sections 560 and 561 of the Act. In my opinion Section 414 (3) clearly enjoins that the copy of the order of demolition made by the Commissioner has to be served upon the owner and the occupier thereof and for a period of 30 days no action can be taken in pursuance of the order of demolition. This is the plain and simple meaning of the provisions of Section 414 (3) of the Act. Any owner or occupier on whom such a copy of the order is served has been further provided with a remedy by way of appeal under Section 414A of the Act. So the Act clearly provides double remedy against an order passed under Section 414 (3) of the Act and considering these provisions it cannot be said that the person affected was deprived of or, in other words, was denied any opportunity of hearing. Natural justice, as has been rightly submitted by Mr. Pradip Kumar Ghosh, is undoubtedly applicable in all cases where an order quasi-judicial or even administrative affecting rights of a party (sic) cannot be made without giving the party affected a reasonable opportunity of making representation against the order and without giving him a reasonable opportunity of hearing and this is exactly what was in the mind of the framers of this particular statute while making the provisions for service of the copy of the demolition order on the owner or the persons who are responsible for making such illegal construction, addition or alteration and also on the occupier of the premises which is proposed to be demolished or portion of which is proposed to be demolished. Not only that, a remedy by way of appeal under Section 414A has been provided in the statute. In these circumstances I am unable to hold that before the order is executed a further notice has to be given under Section 560 and 561 of the Act. Considering the case of this particular matter the order of demolition was served on the respondent No. 11 whose name was recorded as occupier and respondent No. 11 as I have stated hereinbefore challenged the order of demolition passed under Section 414 (3) from the Building Tribunal up to the Supreme Court of India. Therefore, it cannot be said that these provisions do not provide for giving an opportunity of hearing. The other contention of Mr. Ghosh in regard to this that occupier as referred to in the proviso to Sub-section (3) of Section 414 does not only mean an occupier at the time when the order of demolition was made by the Commissioner but it also includes an occupier at the time when actually the order of demolition is going to be enforced or executed. This, in my opinion, if accepted will lead to a very anomalous position and it will on the other hand go to baffle the real purpose with which this provision was brought into the statute book. Therefore, I am unable to accept this interpretation of Section 414 (3) of the said Act. It is well known principle of interpretation that an interpretation of a provision (sic) has to be given which leads to harmonious working of the provisions of the Act and which promotes the purposes envisaged in the Act, in other words, the object of the Act and not to frustrate or baffle the same. Sections 560 and 561 in my opinion apply in regard to other requisition or orders not provided in this Act or the rules specifically. Moreover these sections will apply to requisition or order made under this Act or under any rule or bye-law made thereunder, by written notice issued by a municipal authority or by any municipal officer empowered under Section 34 in this behalf, etc. Section 34 empowers the Commissioner to delegate to any municipal officer or servant any of his powers, duties or functions including those delegated to him under Section 30 but not those conferred or imposed or vested in him by Section 414 (3), etc. So these Sections 560 and 561 have no application to an order made under Section 414 (3) of the said Act. This will be evident from the provisions of Section 560 (2) and also from Section 561 (5) of the said Act, The other contention which is very material for determination of the question raised in this petition is whether the provision of Section 414 (3) has been complied with, in other words, whether copy of the order has been served on the occupants i.e. the petitioners or not. Undoubtedly as I have said already, the provisions of Section 414 (3) cast a duty on the Corporation to serve a copy of the order of demolition not only on the person responsible for making such illegal construction but also on the occupier of the premises and occupier has been defined in Section 5 (51) of the Act as to include not only any person for the time being paying, or liable to pay, to the owner the rent or any portion of the rent of the land or building in respect of which the word is used or for damages on account of the occupation of such land or building and also a rent free tenant. The definition is rather an inclusive definition not an exclusive definition. Section 187 provides for entry of names of occupiers in assessment books kept by the Corporation of Calcutta and Sub-section (3) of the said section provides the consequences of any occupier having his name not recorded in the assessment register. It has been provided therein specifically that no occupier whose name has not been entered in the assessment book shall be entitled to object that any bill, notice of demand, warrant or other notice of any kind required by the Act to be served on the owner or occupier of any land or building has not been made out in his own name. Mr. Ghosh, learned counsel, has submitted that notice of demand, warrant, bill or other notice does not include an order as envisaged in Section 414 (3) of this Act. In my opinion there is substance in this contention and the decisions that have been placed on this point viz. 48 Cal WN 170 : (AIR 1944 Cal 159) and : AIR1953Cal87 support the contention of Mr. Ghosh. The next question is whether the petitioners were in actual occupation of the premises at the time when the impugned orders of demolition were made. It appears from the averments made in the writ petition particularly in para 5 of petition and para 24 of the reply sworn by the petitioner No. 1 Ram Awtar Agarwal no date has been given as to when they came to occupy these floors of the disputed premises though the Corporation has categorically denied that any one of these petitioners came to occupy these floors before occupation of the premises as stated on oath by the Rajasthan Bank Ltd. in Sept., 1978. Furthermore, the petitioners have stated that out of them 17 have occupied 10 to 13 floors in July, 1981. It is also evident from annexure 'E' to the writ application made on behalf of Rajasthan Bank Ltd. that a letter was given by the City Architect, Corporation of Calcutta, on 6-7-81 stating therein that the demolition order was made and the same was made finally as the Tribunal dismissed the appeal filed by respondent No. 11 and Title Suit No. 408 of 1979 in the City Civil Court, Calcutta, challenging the said demolition order was also not proceeded with and a copy of the letter which was given to the Income-tax Department who was admittedly occupying 10 to 13 floors was given to them. It has been stated by the learned Advocate for the Corporation of Calcutta, Mr. Pradip Kumar Ghosh, that thereafter the Income-tax Department gave up possession of these four floors and they remained vacant. The petitioners have stated of course that out of them 17 came to occupy these floors in July, 1981. The question is can it be said in these circumstances that they are not aware that the building was illegally constructed and demolition orders were made and several proceedings were also brought by respondent No. 1? Therefore, in these circumstances sitting in an equity court I am unable to hold that these 17 tenants whose names of course have been carefully omitted to be mentioned specifically in the petition as well as in the affidavit-in-reply are entitled to be served with the order of demolition inasmuch as the order of demolition was passed long before their such alleged occupation of this premises viz. one on 15-5-78 and two others on 21-4-81. As regards the other petitioners there is no averment as I have said already specifying when they actually occupied their respective portions. Therefore, there is nothing to disprove the specific averment made on behalf of the Corporation of Calcutta that all these other petitioners came to occupy this premises knowing fully well the order of demolition and after the demolition order was made. Moreover, another thing which very much weighed with this Equity Court is if the respondent No. 11 constructs this tall building without any respect for the statutory provisions and without carrying the notice issued under Section 416 of the Act and the steps taken by the Corporation for posting police pickets, guards from time to time stopping this illegal construction and sometimes arresting persons engaged in such illegal construction and thereafter all attempts being baffled when the building was thus wholly illegally constructed in utter contravention of the provisions of the statute and the rules framed thereunder the Corporation was compelled to make the order of demolition under Section 414 (3) and serving the order duly on the respondent No. 11 who is in occupation according to the records of the Corporation and who fought for several years since 1978 till Feb. 15, 1982 can it be believed or can a reasonable person believe that these occupants knew nothing about this more so when two of the tenants already agitated against the disconnection of water supply and one tenant has already filed a title suit in the City Civil Court, Calcutta that they were not aware of and that they only became aware of that on 15-2-82 from the newspaper report. As an Equity Court this court cannot lose sight of the background, the facts and circumstances of this particular case to permit an illegal act to continue and this is certainly not in the interest of justice, fair play and equity.

12. Therefore, considering the facts and circumstances of the case and the conduct of the petitioners who claim to be occupants as an Equity Court I am not at all willing to interfere in this matter and to exercise my jurisdiction. This application is, therefore, summarily dismissed,

13. All interim orders are hereby vacated.

14. The application for Rajasthan Bank Ltd. is also rejected.

15. The prayer for stay of operation of this order is refused.


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