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2008 Supreme(Cal) 40
High Court of Judicature at Calcutta
DIPANKAR DATTA
Sri Sankar Sarkar
Versus
The State of West Bengal & Others
W.P. 15006 (W) of 2007 with W.P. 17368 (W) of 2007 with W.P. 20063 (W) of 2007
Decided On : 11-01-2008
Mr. P.K. Roy, Mr. Dipak Chakraborty, Mr. Samir Kumar Daskar, Advocates for the petitioners.
Mr. Pratap Chatterjee, Mr.Arindam Banerjee, Mr. Subhajit Roy, Advocates.
Mr. Mir Aniruzzaman, Advocates.
The Municipality has the power to demolish unauthorized structures under Sections 197 and 201(1) of the West Bengal Municipal Act, 1993. Fibre sheds affixed to buildings constitute "building" as defined in the Building Rules 1996 and, therefore, cannot be affixed without permission from the Municipality.
Headnote:
LAND USE - UNAUTHORIZED CONSTRUCTION - DEMOLITION - WEST BENGAL MUNICIPAL ACT, 1993 - SECTIONS 197, 201(1), 201(2) - INTERPRETATION - MUNICIPALITY'S POWER TO DEMOLISH UNAUTHORIZED STRUCTURES - SCOPE - BUILDING RULES 1996 - RULES 2(9A), 2(16), 2(26), 47, 49, 52 - APPLICABILITY - FIBRE SHEDS AFFIXED TO BUILDINGS - WHETHER CONSTITUTE "BUILDING" - DEMOLITION OF FIBRE SHEDS - LEGALITY.
Fact of the Case:
Sankar Sarkar, the developer of a housing complex, and his son Sanjib Sarkar, were accused of raising unauthorized constructions on the common areas of the complex. The Association of flat owners in the complex filed a writ petition with the Calcutta High Court seeking a direction to the Municipality to take necessary steps to remove the unauthorized structures. The Municipality passed an order directing the demolition of the unauthorized structures and to stop the commercial use of all residential flats with immediate effect. Sankar and Sanjib challenged the order of the Municipality by filing separate writ petitions.
Finding of the Court:
The Court held that the Municipality had the power to demolish the unauthorized structures under Sections 197 and 201(1) of the West Bengal Municipal Act, 1993. The Court further held that the fibre sheds affixed to the buildings constituted "building" as defined in the Building Rules 1996 and, therefore, could not have been affixed without permission from the Municipality. However, the Court set aside the direction for demolition of the fibre sheds and directed the Chairman of the Municipality to pass a reasoned order according to law on the basis of the materials before him.
Issues: 1. Whether the Municipality had the power to demolish the unauthorized structures? 2. Whether the fibre sheds affixed to the buildings constituted "building" as defined in the Building Rules 1996?
Ratio Decidendi: 1. The Court held that the Municipality had the power to demolish the unauthorized structures under Sections 197 and 201(1) of the West Bengal Municipal Act, 1993. The Court relied on the provisions of the Act which empower the Municipality to remove any building or structure which is erected or used in contravention of the provisions of the Act or any rule or bye-law made thereunder. 2. The Court held that the fibre sheds affixed to the buildings constituted "building" as defined in the Building Rules 1996. The Court relied on the definition of "building" in the Building Rules which includes any structure or part thereof which is affixed to the ground or to any other building.
Final Decision: The Court set aside the direction for demolition of the fibre sheds and directed the Chairman of the Municipality to pass a reasoned order according to law on the basis of the materials before him. The Court also directed the Municipality to enforce the provisions of law and ensure that no activity takes place in any of the concerned flats other than purposes for which the same were allowed to be used, as specified in the sanctioned plan.
The issues in the three petitions being related, the same were heard together and would be governed by this common judgment.
Admitted facts of these cases are:
Petitioner no.1 in W.P. 17368 (W) of 2007 Aghore Sarani Maa Sarada Abasik Welfare Samity (hereafter the Association) is an association of flat owners in a housing complex named Maa Sarada Complex (hereafter the housing complex), located within Rajpur Sonarpur Municipality (hereafter the Municipality). There are nine multistoried buildings in the housing complex (numbered ‘A’ to ‘I’) consisting of several flats.
Sankar Sarkar (hereafter Sankar), petitioner in W.P. No.15006 (W) 2007, has developed the housing complex. Alleging that Sankar and his son Sanjib Sarkar (hereafter Sanjib) [the petitioner in W.P. 20063 (W) of 2007] along with their associates had raised construction on the common area/space of Block ‘A’ (four shop rooms), allowed flat nos. 2, 3 and 4 of Block ‘I’ to be used as marriage hall, constructed a kitchen over the common space/area of Block ‘I’, structures and shed in the common space of Block ‘B’, started a shop by the name of Biryani Corner in flat nos. 1 and 2 of Block ‘B’, constructed structure and shed in the rear portion of ground floor of Block ‘A’ and had been using the same as parking space of their own private cars, all without lawful authority and/or permission from the Municipality, the Association had lodged objection with the Municipality by addressing representations on diverse dates urging it to take necessary steps in accordance with law. The objection was not considered by the Municipality resulting in filing of a writ petition being W.P. No.23865 (W) of 2006 by the Association. That petition was disposed of by a learned Judge of this Court on 11.12.2006 with a direction upon the Chairman of the Municipality to consider and dispose of the representation dated 23rd August, 2006 after giving opportunity of hearing to the Association and Sankar and to pass a reasoned order.
Acting in compliance with the said order, the Chairman of the Municipality heard the parties (the Association and Sankar) on 11.1.07 and inspected the site on 20.1.07. Thereafter, he passed an order on 27.2.07 directing demolition of the unauthorized structures as indicated therein within 30 days from date of communication of the order as well as to stop the commercial use of all residential flats with immediate effect.
The order dated 27.2.07 of the Chairman was challeged by Sankar in a writ petition being W.P. No.5949 (W) of 2007. That petition was disposed of on 5.4.07 by the self same learned Judge with a direction upon the Chairman of the Municipality to review the order dated 27.2.07 after inspecting the original as well as the alleged revised approved plan and other documents, and after giving opportunity of hearing to the parties. Such exercise was directed to be carried out within six weeks from date of communication of the order. The Municipality was restrained from taking any coercive step on the basis of the order dated 27.2.07 for a period of ten weeks.
In compliance with the aforesaid order, the Chairman heard the parties once again. Upon hearing them and on consideration of the documents and papers submitted before him by Sankar, the Chairman again passed an order on 13.6.07 directing demolition of unauthorized construction indicated therein within 7 days from date of its receipt and to stop the commercial use of ground floor of Blocks ‘B’ and ‘I’ by Sankar without the permission of the Municipality, with immediate effect.
This order dated 13.6.07 of the Chairman is the subject matter of challenge in the two petitions filed by Sankar and Sanjib whereas the Association in its writ petition, alleging inaction on the part of the Municipality, has prayed for a direction on it from this Court to implement the said order as well as the order dated 27.2.07.
While Sanjib has challenged the order dated 13.6.07 on the ground that he was not heard and therefo
