Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Cal) 441

IN THE HIGH COURT AT CALCUTTA
SOUMITRA PAL, J.
Ghanashyam Das & Ors. – Appellants
Versus
The Kolkata Municipal Corporation and Ors. – Respondents
W.P. 14557 (W) of 2012 With W.P. 934 (W) of 2014 With W.P. 3583 (W) of 2014 With W.P. 6960(W) of 2014 With W.P. 8951 (W) of 2014 With W.P. 7871 (W) of 2014 With W.P. 3508 (W) of 2014 With W.P No. 251 of 2014 W.P. 14557 (W) of 2012
Decided on: 25th July, 2014

Advocates:
Advocate Appeared:
W.P. 14557 (W) of 2012
For the Petitioner: Mr. Ajay Dutta, Mr. Naren Ghosh Dastidar.
For the K.M.C : Mr. Ashoke Banerjee, Learned Government Pleader, Ms. Sima Chakraborty.
For the respondent no.6.: Mr. Dipankar Chakraborty, Mr. Somnath Ghosh.
W.P. 934 (W) of 2014
For the petitioner: Mr. Sambhu Nath Dey.
For the K.M.C : Mr. Achintya Kumar Banerjee, Mr. Subhrangshu Panda.
For the respondent no.7: Mr. Suddhwasatwa Banerjee, Mr. Supratik Roy, Ms. Ira Bhattacharyya.
W.P. 3583 (W) of 2014
For the petitioners: Mr. Lal Mohan Hajra, Mr. S. Panja, Mr. M. Hajra.
For the K.M.C. : Mr. Barin Banerjee, Mr. S.K. Debnath.
For the respondent no. 5.: Mr. Arnab Dutt.
W.P. 6960 (W) of 2014
For the petitioners: Ms. Sayanti Santra.
For the K.M.C. : Mr. Achintya Kumar Banerjee, Mr. Subhrangshu Panda.
For the State. : Mrs. Anjushri Mukherjee.
For the respondent no.7: Mr. Keshab Bhattacharya, Ms. Susmita Mukherjee.
W.P. 8951 (W) of 2014
For the petitioner: Mr. Rajnarayan Datta.
For the K.M.C. : Mr. Achintya Kumar Banerjee, Mr. Subhrangshu Panda.
For the respondent no.3: Mr. Rajarshi Dutt, Ms. Rita Mallick
For the respondent no.4: Mr. D. N. Chatterjee, Mr. Abhijit Boral.
W.P. 7871 (W) of 2014
For the petitioner: Mr. Rajarshi Dutt, Mr. Sayantan Bose, Ms. Ishita Bose.
For the H.M.C. : Mrs. Smritikana Mukherjee.
For the respondent no.4:Mr. L.C. Bihani, Senior Advocate Mr. N.C. Bihani.
W.P. 3508 (W) of 2014
For the petitioner: Mr. Amit Gupta.
For the K.M.C : Mr. Achintya Kumar Banerjee, Mr. Arijit Dey.
W.P. No. 251 of 2014
For the petitioners:Mr. Hirak Mitra, Senior Advocate Mrs. S. Chatterjee, Mrs. Sima Chakraborty.
For the respondent: Mr. Aloke Kumar Ghosh Mr. Razlul Haqu, Ms. Koyali Bhattacharjee.

The 1980 KMC Act, 1980 HMC Act, and the Rules do not confer any authority on the Municipal Commissioner to regularize unauthorized constructions, even on payment of fees or charges. The concept of post facto sanction or regularization is alien to the provisions of these statutes. Any order passed by the Municipal Commissioner or his delegate directing regularization of an unauthorized construction is illegal and void.

Headnote:
Several Writ Petitions were filed in the High Court of Calcutta challenging the orders passed by the Kolkata Municipal Corporation (KMC) and Howrah Municipal Corporation (HMC) for regularization and retention of unauthorized constructions on payment of fees. The Court analyzed the relevant provisions of the Kolkata Municipal Corporation Act, 1980 (1980 KMC Act), the Howrah Municipal Corporation Act, 1980 (1980 HMC Act), and the Kolkata Municipal Corporation Building Rules, 2009 (Rules).
Fact of the Case:

The petitioners challenged the orders passed by the KMC and HMC on the grounds that such orders were illegal, arbitrary, and violative of the statutory provisions. The KMC and HMC defended their actions by arguing that they had the discretion to regularize unauthorized constructions in appropriate cases, considering factors such as the nature and extent of the violation, the impact on the surrounding area, and the hardship caused to the property owner.
Finding of the Court:

The Court held that the provisions of the 1980 KMC Act, 1980 HMC Act, and the Rules do not confer any authority on the Municipal Commissioner to regularize an unauthorized construction, even on payment of fees or charges. The Court observed that the concept of post facto sanction or regularization is alien to the provisions of these statutes. The Court further held that any order passed by the Municipal Commissioner or his delegate directing regularization of an unauthorized construction is illegal and void.
Issues: ['Whether the 1980 KMC Act and 1980 HMC Act confer authority on the Municipal Commissioner to regularize unauthorized constructions on payment of fees or charges?', 'Whether the concept of post facto sanction or regularization is permissible under the provisions of these statutes?', 'Whether orders passed by the Municipal Commissioner or his delegate directing regularization of unauthorized constructions are valid and enforceable?']
Ratio Decidendi: The Court's decision was based on the following grounds: 1. Strict Interpretation of Statutory Provisions: The Court interpreted the relevant provisions of the 1980 KMC Act, 1980 HMC Act, and the Rules strictly and held that they do not provide any express or implied authority to the Municipal Commissioner to regularize unauthorized constructions. 2. Prohibition of Unauthorized Constructions: The Court emphasized that the statutes clearly prohibit the erection or execution of any building or work without prior sanction from the Municipal Commissioner. This prohibition is absolute and does not admit any exceptions. 3. Absence of Discretionary Power: The Court held that the Municipal Commissioner has no discretion to regularize unauthorized constructions. The power to demolish unauthorized constructions is the only option available under the statutes. 4. Public Interest and Planned Development: The Court observed that the purpose of the statutes is to ensure planned development of the cities and to protect the public interest. Regularization of unauthorized constructions would undermine this objective and lead to haphazard growth.
Final Decision: The Court allowed the Writ Petitions and set aside the orders passed by the KMC and HMC regularizing the unauthorized constructions. The Court directed the Municipal Commissioners to demolish the unauthorized constructions within a specified time frame and recover the cost of demolition from the responsible persons. The Court also directed the KMC to refund the retention charges collected from the property owners.

Judgment

Soumitra Pal, J.

In the writ petitions, being W.P. 14557 (W) of 2012, W.P 934 (W) of 2014, W.P 3583 (W) of 2014, W.P. 6960 (W) of 2014 and W.P 8951 (W) of 2014, the petitioners have prayed for direction upon the Kolkata Municipal Corporation (in short ‘KMC’) and in W.P 7871 (W) of 2014 upon the Howrah Municipal Corporation (‘HMC’ in short) to demolish constructions found to be illegal and directed to be retained or regularised upon payment of fees, principally on the ground that the provisions contained in the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as ‘1980 KMC Act’) and the Howrah Municipal Corporation Act, 1980 (hereinafter referred to as the ‘1980 HMC Act’) do not confer jurisdiction on the respective adjudicating authorities to pass such orders.

In the writ petition, being W.P. 3508 (W) of 2014 and in W.P. 251 of 2014 the petitioners have principally challenged the imposition of fees or charges for retaining or regularisation of the unauthorized construction on the ground that it is not permissible under the 1980 KMC Act.

In my view, as the issues are common, matters were heard analogously. It appears from the records that directions were issued to file affidavits. In some of the matters, affidavits have been filed and exchanged.

Let the arguments advanced on behalf of the writ petitioners and private respondents be noted, in brief.

W.P. 14557(W) of 2012

In W.P. 14557(W) of 2012 Mr. Naren Ghosh Dastidar, learned advocate for the petitioner submitted that though in the order dated 16th May, 2012 the Executive Engineer (Civil), Building Department, Borough II, KMC held that it was an admitted fact that there was no sanctioned plan for the additional structure and though section 392 of the 1980 KMC Act absolutely bars construction without prior sanction of the Municipal Commissioner, yet order was passed directing retention. Mr. Dipankar Chakraborty, learned advocate appearing for the private respondent no.6, that is the person held responsible for carrying out the construction, relying on the affidavit in opposition submitted that no construction was made on the common wall of the two premises as alleged and there has been no infringement of easmentary rights. Moreover, the empanelled structural engineer of the KMC had certified that the construction is safe and stable.

W.P. 3583 (W) of 2014

The argument of Mr. Lal Mohan Hajra, learned advocate for the petitioner in W.P. 3583 (W) of 2014 was similar to W.P. 14557 (W) of 2012. Mr. Arnab Dutta, learned advocate for the respondent no.5, relying on the affidavit in opposition, submitted that the order dated 29th April, 2013 passed by the Special Officer (Building), KMC directing retention of the construction by exercising discretion was in consonance with section 400 of the 1980 KMC Act.

W.P. 934 (W) of 2014

In W.P. 934 (W) of 2014 Mr. Sambhu Nath Dey, learned advocate for the petitioner, assailing the order dated 31st May, 2013 passed by the Special Officer (Building), KMC, submitted as the construction was found to be unauthorised, the direction to legalise it, is illegal. Mr. Suddhasatwava Banerjee, learned advocate for the private respondent no.7, that is the person who had raised construction, relying on the affidavit in opposition submitted, as the adjudicating authority in its order had observed that the unauthorised construction is not so grave and infraction of building rules cannot be said to be major in nature and as it is a dwelling house, the order under challenge is just and proper.

W.P. 6960 (W) of 2014

Mrs. Sayanti Santra, learned advocate for the writ petitioner in W.P. 6960(W) of 2014, submitted, since despite written complaints order dated 6th January, 2014 was passed by the Deputy Chief Engineer (Building), South, KMC, directing regularisation of the unauthorized construction on payment of charges, it is perverse, arbitrary and illegal. Mr. Keshab Bhattacharjee, learned advocate for the private respondent no.7, reiterating the statements

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