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2018 Supreme(Cal) 880
IN THE HIGH COURT OF CALCUTTA
RAJASEKHAR MANTHA, J.
Smt. Sandhya Pal & Anr. - Appellant
Vs.
The Kolkata Municipal Corporation & Ors. – Respondents
W.P.No.11225(W) of 2018
Decided on : 17-12-2018
Advocate Appeared:
For the Appellant : Mr. Saptangsu Basu, Mr. Subhabrata Das, Mr. Ashok Kumar Ghosh, Adv.
For the Respondent: Mr. Tapas Kumar Adhkari Mr. Somraj Dhar, Mr. Biswajit Mukherjee, Mr. Jishnu Chowdhury Mr. Subrata Goswami Mr. Bipul Roy, Adv.
The main legal point established in the judgment is the need for exercising discretion based on available facts and with sound reasons, and the consequences of unauthorized construction on the building and the surrounding area.
Headnote:
unauthorised construction - Kolkata Municipal Act, 1980 - Section 400, Section 401, Rule 25 of the Rules, 1990 - The court discussed the interpretation of the provisions of the Kolkata Municipal Act, 1980 and the Rules of 1990, highlighting the discretion vested in the municipal authorities to order demolition or regularize unauthorised construction. The court emphasized the need for exercising discretion based on available facts and with sound reasons, and the consequences of unauthorized construction on the building and the surrounding area.
Fact of the Case:
The private respondent made unauthorized construction on a property purchased in 2007 without proper sanction from the Kolkata Municipal Corporation (KMC). A demolition proceeding was initiated, and the authorities differed in their decisions regarding the regularization of the construction.
Finding of the Court:
The court found that the authorities misdirected themselves in passing the orders, and the considerations for regularization were preposterous and baffling. The court set aside the orders and directed the municipal authorities to reassess the construction and make a suitable decision in accordance with the law.
Issues: The main issue was the unauthorized construction and the differing decisions of the authorities regarding regularization or demolition.
Ratio Decidendi: The court emphasized the need for exercising discretion based on available facts and with sound reasons, and the consequences of unauthorized construction on the building and the surrounding area. The court also highlighted the importance of assessing the construction and making suitable decisions in accordance with the law.
Final Decision: The writ petition was allowed, and the court directed the municipal authorities to reassess the construction and make a suitable decision. The private respondent was also directed to pay costs to the writ petitioner.
JUDGMENT :
Rajasekhar Mantha, J:
1. The main issue in the writ petition is with regard to construction effected by the private respondent at premises no.26A, Brindavan Bose Lane, Ward No.12(2), Kolkata - 700 006 (the said premises).
2. The private respondent had purchased the said premises which had an existing construction of a residential house. The original structure was constructed on the basis of a sanctioned plan of the year 1947. The property was purchased by the private respondent sometime in October 2007.
3. Admittedly, the private respondent made additional construction after the year 2007 replacing an iron spiral staircase with a cemented staircase which was increased from the existing height from the first floor to the second floor of the building. In addition thereto, a new room has been constructed on the roof. There are other pillars found to have been also additionally constructed. Some of such pillars have been found by the inspecting officer to be unauthorised. The most vital fact to be noticed is that all these constructions afresh post 2007 have been effected without even a whisper to the Kolkata Municipal Corporation (KMC). It is now extremely well settled and undisputed that changes made to even a pre-existing and sanctioned structure without a proper sanction from the KMC, is an unauthorised construction..
4. There was no sanctioned plan whatsoever allowing such changes to be made. Bad blood has remained between the petitioner and the private respondent who are neighbours. There are other neighbours also who claimed to be effected by reason of the unauthorised construction. A demolition proceeding was initiated under section 400 of the Kolkata Municipal Act, 1980, inter alia, at the instance of the writ petitioner.
5. In course of hearing of the demolition proceedings, the first Special Officer (Building) found as follows:-
“It is true that the construction so far made by the P.R. can not be said to be minor one but at the same time does not look to be so grave in nature. It appears to me that the P.R. constructed the same out sheer necessity. So, considering this aspects of the matter I am inclined to take a sympathetic and humanitarian view so that the constructed portion can be regularised. It is also pertinent to mention here that in course of hearing it was submitted on behalf of the P.R. that she was ready to pay compensation to the complainants for the damage cause to their building. It is expected that the P.R. will surely keep her words in the matter of paying compensation to the complainants. So, considering the above facts and circumstances I am of the view that there is sufficient cause in favour of the P.R. for not passing any order of demolition and allowed to retain the same of course subject to comply with certain preconditions and I believe that this will meet the ends of justice. So, the point is decided accordingly. Hence, ordered that no order for demolition is hereby passed in respect of impugned unauthorised construction subject to comply with the following preconditions, within 30 days from the date of communication of this order. Those conditions are (1) P.R. must produce a certificate from any KMC panelled Structural Engineer certifying that the structural stability and the foundation of the impugned construction are safe and sound and the materials used as well as workmanship are as per the latest edition of N.B.C. of India, (2) she must furnish an affidavit declaring on oath that she will not make any construction whatsoever in the impugned premises without prior sanction from the KMC authority and (3) she must pay the necessary retention charges of the KMC as calculated by the deptt. in a separate sheet of paper attached and supplied with this final order. on non compliance of either of the conditions within the above stated specified period the KMC authority shall demolish the same at the cost and at the risk of the P.R.
Let the copy of this order be delivered to the parties concerne
