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IN THE HIGH COURT OF CALCUTTA
KALYAN JYOTI SENGUPTA AND JOYMALYA BAGCHI, JJ.
Sital Chandra Bodhak
Versus
Howrah Municipal Corporation & Ors.
F.M.A. No. 1194 of 2009 With M.A.T.No. 558 of 2009
Decided on : 28.02.2012
HOWRAH MUNICIPAL CORPORATION ACT - SECTION 177 - DEMOLITION OF UNAUTHORIZED CONSTRUCTION - REGULARIZATION OF DEVIATION - LOCUS STANDI - POWER OF COMMISSIONER - INTERPRETATION OF STATUTORY PROVISIONS - JUDICIAL REVIEW.
Fact of the Case:
The appellant, a factory owner, filed a writ petition challenging the Commissioner's order regularizing unauthorized construction in a neighboring building. The writ petition was dismissed, and the appellant appealed. The respondents, who are flat owners in the building, also filed a writ petition challenging the Commissioner's order, which was allowed by the trial court. The HMC appealed against the trial court's order, and the Division Bench dismissed the appeal.
Finding of the Court:
The Court held that the Commissioner had no power to regularize the unauthorized construction under Section 177 of the Howrah Municipal Corporation Act. The Court also held that the appellant had locus standi to challenge the Commissioner's order, as he was a neighboring owner and user of the common pathway. The Court further held that the trial court erred in setting aside the Commissioner's order, as the Division Bench had already held that the unauthorized construction was liable to be demolished.
Issues: 1. Whether the Commissioner had the power to regularize the unauthorized construction under Section 177 of the Howrah Municipal Corporation Act? 2. Whether the appellant had locus standi to challenge the Commissioner's order? 3. Whether the trial court erred in setting aside the Commissioner's order?
Ratio Decidendi: 1. The Court held that Section 177 of the Howrah Municipal Corporation Act does not provide for the regularization of unauthorized construction. The Court relied on the Supreme Court's decisions in Priyanka Estate International Pvt. Ltd. & Ors. v. State of Assam & Ors., Rajib Kumar Paul and Anr. V. Gurudas Mitra and Ors., and V M Kurian v. State of Kerala, which held that unauthorized construction cannot be regularized. 2. The Court held that the appellant had locus standi to challenge the Commissioner's order, as he was a neighboring owner and user of the common pathway. The Court relied on the Supreme Court's decision in Ram Awatar Agarwala and Ors. v. Corporation of Calcutta, which held that neighboring owners have locus standi to challenge the legality and validity of construction of buildings. 3. The Court held that the trial court erred in setting aside the Commissioner's order, as the Division Bench had already held that the unauthorized construction was liable to be demolished. The Court held that the trial court could not have passed an order having the effect of circumventing the observation and the findings of the Division Bench.
Final Decision: The Court allowed the appeal and upheld the order of demolition passed by the Commissioner. The Court directed the Corporation authority to complete demolition proceedings within three months from the date of communication of the order.
K.J. Sengupta, J.:-
1. Both the appeals have been directed against one and common judgment and order of the learned single Judge dated 24th February 2009 by which two writ petitions being No. 28375 (W) of 2006 and WP No. 4011(W) of 2007 had been disposed of. The first mentioned writ petition was filed by the appellant herein while the second mentioned writ petition was filed by the Respondent Nos. 5 to 23 herein. The learned trial Judge by the said impugned judgment and order however did not grant desired relief to the appellant, while the above respondents have been granted relief to a great extent. It appears from records both the appeals have chequered history and without narrating the same it would be difficult to appreciate the problem posed before this Court. One M/s. Sridhar Housing and Consultant, a partnership firm, consisting of one Dibyendu Roy and one Subhendu Roy purchased a plot of land being Premises No. 20/3 Benaras Road, Salkia, Howrah - 6 (hereinafter referred to as the said premises) and thereafter got sanction to a Plan for erecting building on 27th December 2001. The appellant is the owner of Premises No. 20/1 Benaras Road, Salkia, Howrah - 6 which is on the same road. However the appellant’s premises cannot be said to be an adjacent to the said premises for which building plan had been obtained. After obtaining sanction the said firm started construction of the building. The appellant had been running a factory, and complained to the Corporation that the said Partners, Dibyendu and Subhendu had been making unauthorized construction. Having found no response to his complaint he approached this Court by filing a writ petition being. W P No.9603 (W) of 2002 which was disposed of by an order dated 16th July 2002 directing the Chief Architect of the Corporation to look into the matter. Pursuant to the said notice, the appropriate officials of the Building Department of the Howrah Municipal Corporation (hereinafter in short HMC) took steps and initiated demolition proceedings. Accordingly a show cause notice was issued as to why the unauthorized construction should not be demolished. Ultimately demolition order was passed on 3rd October 2002.
2. Feeling aggrieved, Dibyendu and Subhendu moved this Court by filing a Writ Petition being No. 17632(W) of 2002 which was allowed by an order dated 15th July 2003 by which the show cause notice dated July 30th 2002 and the demolition order dated 3rd October 2002 were quashed. By this order HMC however was given liberty to proceed afresh in accordance with law. HMC being aggrieved by the said order of learned single Judge dated 15th July, 2003 preferred appeal and by an order dated 30th September 2004 on an application filed in the said appeal the Division Bench of this Court was pleased to stay operation of the order dated 15th July 2003 and at the same time HMC was restrained from demolishing the structure. Dibyendu and Subhendu were permitted to approach the Corporation for two purposes to seek regularization of the deviation and prepare a complete plan of demolition of the unauthorized construction which is not permissible to retain. The relevant portion of the order dated 15th July 2003 is as follows:
“The Corporation shall, before granting permission to the writ petitioners-respondents to retain the deviated portion, come to a specific finding that by the Act or Rules framed thereunder, it has power to do what the writ petitioners-respondents are seeking. Before any decision is take to give permission to the writ petitioners-respondents to retain the deviated portion, a hearing should be given to the respondent No. 2 by the appropriate authority of the Corporation. To make it clear that we have not been able to locate any power of the Corporation to permit retention of a construction not permissible by the acts or the rules framed thereunder. But since we are not deciding the appeal we have not concluded the matter and, accordingly leave to the Corporation to
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