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IN THE HIGH COURT AT CALCUTTA
ARIJIT BANERJEE, APURBA SINHA RAY, JJ.
Sumbul Afzal – Appellant
Versus
The Kolkata Municipal Corporation and Others – Respondents
M.A.T. No. 665 of 2022, I.A. CAN Nos. 1, 2 of 2022
Decided On : 28-07-2023
ILLEGAL CONSTRUCTION - REGULARIZATION - KOLKATA MUNICIPAL CORPORATION ACT, 1980 - SECTIONS 400(8), 401 - The court held that a person responsible for unauthorized construction has no right to reconstruct the same after demolition and then apply for regularization. Such attempts would lead to unscrupulous persons evading the law and hindering the completion of demolition proceedings.
Fact of the Case:
The appellant, a beneficiary of Hafiz Jamaluddin Wakf Estate, filed a writ petition against the illegal construction at the said premises by the mutawallis in violation of the sanctioned plan. The Kolkata Municipal Corporation (KMC) issued a stop-work notice and demolished the unauthorized construction. However, the mutawallis reconstructed the demolished portions, leading to a fresh demolition order. The mutawallis applied for regularization of the unauthorized construction, which was pending before the KMC.
Finding of the Court:
The court found that the mutawallis had admitted to the deviations from the sanctioned building plan and the change of user of the premises. It also noted that the mutawallis had reconstructed the unauthorized construction after its demolition, which was beyond the scope of regularization.
Issues: 1. Whether a person responsible for unauthorized construction has the right to reconstruct the same after demolition and then apply for regularization. 2. Whether the KMC can regularize unauthorized construction that was reconstructed after demolition beyond the sanctioned plan.
Ratio Decidendi: 1. The court held that a person responsible for unauthorized construction has no right to reconstruct the same after demolition and then apply for regularization. Such attempts would lead to unscrupulous persons evading the law and hindering the completion of demolition proceedings. 2. The court held that the KMC cannot regularize unauthorized construction that was reconstructed after demolition beyond the sanctioned plan.
Final Decision: The court set aside the impugned judgment and directed the KMC to consider the appellant's complaints in accordance with law. The mutawallis were directed not to make any further construction except in accordance with a sanctioned building plan, and the KMC was directed to take appropriate steps against the unauthorized construction within eight weeks.
JUDGMENT :
APURBA SINHA RAY, J.
1. The instant appeal has been preferred against the order dated 04.04.2022 passed by the Learned Single Judge in WPA No. 16276 of 2021. The relevant factual matrix may be narrated as hereunder:
(b) The private respondents, that is, the joint mutawallis in violation of the sanctioned plan were carrying on unauthorized construction at the said premises which may be summarized herein-below:
“(i) Extension of RCC roof on the ground floor, 1st floor, 2nd floor, 3rd floor and 4th floor with open terrace on the 4th floor.
(ii) Change in the nature and character of the car parking space which was converted into a shop.
(iii) The said premises being residential in nature was used for the commercial purpose without any sanction of the Kolkata Municipal Corporation.”
(c) On or about November 13, 2017, the respondent nos. 5 and 6, that is , mutawallis were convicted in Case No. M/F/455 of 2016 for such unauthorized construction.
(d) Thereafter being aggrieved and prejudiced by such unlawful construction, the writ petitioner being the appellant herein, lodged complaints with the authorities including respondent no. 1 Kolkata Municipal Corporation (in short KMC) and consequently the Corporation issued a stop work notice to the private respondents in terms of Section 401 and intimated the said fact to the appellant/writ petitioner by letter dated 17.11.2017. After a prolonged persuasion and by virtue of an application under Section 6(2) of the Right to Information Act, 2006, the appellant/writ petitioner came to know from the respondent no. 3’s letter dated 22.01.2019 to the effect, interalia:
(i) Earlier the owner of the said premises made unauthorized construction of extension of RCC roof at ground floor, 1st floor, 2nd floor, 3rd floor and 4th floor with open terrace at 4th floor. There was a change of user by converting car parking space to shop and also 1st floor and 2nd floor was converted from residential use to commercial use without sanction.
(ii) Stop work notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 was served upon the person responsible on 23.06.2016.
(iii) After receiving approval from MIC through Mayor-in-Council a demolition programme was taken up on 18.01.2018 at 11.00 a.m. under Burrabazar Police Station and the unauthorized construction was demolished to some extent. The person responsible again constructed the illegal structure at the portion where the illegal constructions had been demolished.
(iv) Thereafter again infringement list D-sketch plan and other relevant papers were sent to the higher authority for necessary action under Section 400(8) of the Kolkata Municipal Act, 1980.
2. According to the appellant/writ petitioner, even after having furnished the Information as aforesaid, the respondent Corporation did not take any further step in respect of such unauthorized construction. The private respondents acted as per their own whims and fancies by engaging in illegal and unlawful construction at the said premises in violation of the sanctioned plan. All efforts to restrain the private respondents fell in deaf ears. As a result, the appellant/writ petitioner filed WPA No. 16276 of 2021 praying for issuance of writ in the nature of mandamus commanding the respo
The judgment establishes the principle that unauthorised constructions cannot be regularized under the amended provisions of the Acts. It emphasizes the need to prevent illegal and unauthorized const....
Unauthorized constructions cannot be legitimized by time or inaction; strict enforcement of demolition orders is essential to uphold the rule of law.
The main legal point established in the judgment is that unauthorized construction exceeding the permissible limit cannot be regularized under the Act of 2016.
The third proviso to Section 400(1) of the Kolkata Municipal Corporation Act, 1980 and the Regulations, 2015 formulated by virtue of the said proviso, that is KMC (Regularization of Building) Regulat....
Point of Law : Prevalent situation either in the limits of the Corporation, Municipality or the Panchayat if noticed, it would demonstrate clear apathy on the part of the Authorities towards the citi....
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