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2016 Supreme(Cal) 1066
IN THE HIGH COURT OF CALCUTTA
Indra Prasanna Mukherji, J.
SRI BASANTA BANERJEE - Appellant
Vs.
THE STATE OF WEST BENGAL - Respondent
W.P. No. 29659(W) of 2015
Decided On : 22-11-2016
For the Appellant :Mr. S. Banerjee and Mr. P. Mukherjee, Advocates
For the Respondent:Mr. J.L. De and Mr. S. Bhattacharyya, Mr. R. Pattanayak and Mr. K. Bhattacharyya, Advocates
The main legal point established in the judgment is the requirement for the Board of Councilors to re-adjudicate the matter with the help of experts and pass a reasoned order after hearing the parties and allowing the parties to produce evidence.
Headnote:
Building Rules - West Bengal Municipal Act, 1993 - The court directed the Board of Councillors to re-adjudicate the matter with the help of experts and pass a reasoned order after hearing the parties and allowing the parties to produce evidence.
Fact of the Case:
The court directed the Board of Councillors to re-adjudicate the matter with the help of experts and pass a reasoned order after hearing the parties and allowing the parties to produce evidence.
Finding of the Court:
The court found that the main subject matter of controversy between the parties had not been addressed in the decision of the Board of Councilors, and directed them to re-adjudicate the matter with the help of experts.
Issues: The main issue was whether the proposed use of the subject building can be said to be for 'mixed use', which had not been answered in the impugned order.
Ratio Decidendi: The court's decision was based on the failure of the impugned order to address the basic question of whether the proposed use of the subject building can be said to be for 'mixed use'.
Final Decision: The court directed the Board of Councilors to re-adjudicate the matter with the help of experts and pass a reasoned order after hearing the parties and allowing the parties to produce evidence.
Indra Prasanna Mukherji, J.
This is the second round of litigation. By an order dated 20th July, 2015 in W.P.No. 10983(W) of 2015 (Basanta Banerjee & Anr. v. The State of West Bengal), Justice Sambuddha Chakrabarti disposed of the writ application directing the Board of Councillors of Jhargram Municipality to make a determination as to whether the construction contemplated by the private respondent, the respondent No. 23 was in violation of the West Bengal Municipal Act, 1993 and the Rules framed thereunder.
2. This court permitted the Municipality to engage an expert to assist it.
3. The decision of the Board of Councilors dated 29th September 2015 was expressed by the Chairman.
4. This decision is the subject matter of challenge in this writ.
5. In my opinion, in this decision, the main subject matter of controversy between the parties has not been addressed.
6. The dispute is this.
7. Under the West Bengal Municipal (Building) Rules, 2007 a building for residential use up to a height of 8 metres has to keep 1.2 metres of front and side space and 2 metres of rear space. A building for 'mixed use' of the same height has to keep a front open space of 2 metres, side open spaces of 1.8 metres and 4 metres and a rear open space of 4 metres. Now, if the subject building is treated as one for residential use, it is nobody's case that there is violation of any building rule in the sanctioning of its plan or in its proposed construction. But if the same is one for 'mixed use' then there is clear violation of the rules because the required space has not been kept, admittedly.
8. Mr. Banerjee also cited Section 197(2) of the West Bengal Municipal Act, 1993. This sub-section is set out below:
"197(2) For the purpose of this Act, "use group" or "occupancy" shall mean the purpose for which a building or part of a building is used or intended to be used. For the purpose of classification of a building according to occupancy, occupancy shall be deemed to include subsidiary occupancies which are contingent upon it. The classification of occupancy shall include residential, educational, institutional, assembly, business, mercantile (retail), mercantile (wholesale), industrial, storage and hazardous. The principal occupancy shall be the occupancy covering more than 50 per cent of the floor area of a building. In case no single occupancy covers more than 50 per cent of the floor area of a building, the building shall be classified as "mixed use building". The classification of buildings based on principal occupancy, shall be as follows:
"residential building", "educational building", "institutional building", "assembly building", "business building", "mercantile building (retail)", "mercantile building (wholesale)", "industrial building", "storage building", and "hazardous building"."
9. In case no single occupancy covers more than 50% of the floor area of the building, the building shall be classified as "mixed use building". For example a part of the building may be used for residence, another part for business, another part of running a coaching class. If any of these areas do not cover more than 50% of the total floor area of the building then it is for "mixed use". Mr. Banerjee, showing me the building plan for the proposed G+3 storied residential building said that the plan conceived of use of the building for both residential and commercial purposes. He said that no single occupancy of the building, as per the plan, exceeded 50%. Hence, it was for "mixed use".
10. In those circumstances, the required space for such kind of a building had not been kept by the private respondent. This was the nature of illegality, according to learned Counsel.
11. Therefore, this basic question has to be gone into. The question being: whether the proposed use of the subject building can be said to be for "mixed use"? This question has not been answered in the impugned order. In those circumstances, the impugned order dated 29th September, 2015 is set aside.
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