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2023 Supreme(Cal) 1001
IN THE HIGH COURT AT CALCUTTA
AMRITA SINHA, J.
Sourasis Nag – Appellant
Versus
The Kolkata Municipal Corporation & Ors. – Respondents
WPO 1385 of 2023
Decided on : 19-07-2023
Advocate Appeared:
For the Appellant : Mr. Nirmalya Dasgupta, Adv., Mr. Chanchal Kumar Dutta, Adv., Ms. K. Mullick, Adv.
For the KMC : Mr. Debjit Mukherjee, Adv., Ms. Susmita Chatterjee, Adv.
For the Respondent: Mr. Raghunath Chakraborty, Adv., Mr. M. Ahmed, Adv.
The Kolkata Municipal Corporation Act does not permit regularization of unauthorized construction.
Headnote:
KOLKATA MUNICIPAL CORPORATION ACT - SECTION 400(1) - BUILDING CONSTRUCTION - UNAUTHORIZED CONSTRUCTION - REGULARIZATION - OFFICE CIRCULAR NO.2/15-16 DATED 11.07.2015 - SUMMARY : The court dismissed a writ petition challenging an order of the Municipal Building Tribunal upholding a demolition order for unauthorized construction. The petitioner had constructed two additional floors and encroached on mandatory side open spaces without obtaining sanction. The court held that the Kolkata Municipal Corporation Act does not permit regularization of such illegal construction and that the petitioner's attempt to get the same regularized was mala fide.
Fact of the Case:
The petitioner had obtained sanction for construction of a G+4 storied building in 2019. However, the petitioner constructed two additional floors and encroached on mandatory side open spaces without obtaining any sanction. The Special Officer [Building] ordered demolition of the unauthorized construction. The petitioner appealed to the Municipal Building Tribunal, which dismissed the appeal.
Finding of the Court:
The court held that the petitioner's act of raising two additional floors and encroaching the mandatory side open spaces with the intention to get the same regularised in future relying upon an Office Circular is an absolute mala fide attempt on the part of the petitioner to get an illegal construction regularised. The Kolkata Municipal Corporation Act does not permit regularisation of two additional floors constructed beyond the sanction plan without maintaining the engineering norms.
Issues: Whether the petitioner's unauthorized construction can be regularized.
Ratio Decidendi: The court held that the Kolkata Municipal Corporation Act does not permit regularization of unauthorized construction. The petitioner's attempt to get the same regularized was mala fide.
Final Decision: The court dismissed the writ petition.
JUDGMENT :
Amrita Sinha, J.
1. The petitioner is aggrieved by the order passed by the Municipal Building Tribunal, Kolkata Municipal Corporation on 06.06.2023 in BT Appeal No.50 of 2022.
2. The matter relates to premises no.19, Fakir Chand Mitter Street, Ward 38, Borough-IV under jurisdiction of the Kolkata Municipal Corporation.
3. The structure constructed at the aforesaid premises is suffering an order of demolition passed by the Special Officer [Building] under Section 400[1] of the Kolkata Municipal Corporation Act, 1980.
4. The person responsible obtained sanction for construction of building of G+4 height in the year 2019. Two additional floors were constructed and the mandatory side open spaces were encroached. Construction was made in deviation of the plan sanctioned.
5. A complaint was lodged by the adjoining owner alleging that the construction made by the petitioner was damaging the complainant’s house. An inspection was conducted and it was found that there are several infringements which are as follows:
| Rule | Required/sanction | Provided | Remarks |
| Front open space[R-62] | 5.00 M | 0.50 M | Infringed |
| Side open space-I[R-62] | 5.00 M | 0.45 M | Infringed |
| Side open space –II[R-62] | 5.00 M | 0.60 M | Infringed |
| Rear open space [R-62] | 6.50 M | 1.20 M | Infringed |
| FAR [R-69] | 2.278 | 4.73 | Infringed |
| Ground coverage [R-70]q | 57.36%[122.37 sq.m] | 81.99%[174.33 sq.m] | Infringed |
| Height [R-74] | 15.50 M | 21.55 M | Infringed |
| Car parking [R-78] | 87.46 sq.m. | 57.62 sq.m | Infringed |
| Fire fighting [R-122] | Unknown | ||
| Structural stability [R133] | Unknown | ||
| Quality of materials used & workmanship [R-134] | Unknown | ||
6. The total area of unauthorised construction is 522.49 sq.m. A demolition sketch and infringement statement was prepared. Hearing was conducted and after hearing of the parties the Special Officer [Building] directed all unauthorised constructions including two additional floors to be demolished and the demolition to be carried out under the supervision of the Licenced Building Surveyor/Empanelled Structural Engineer in order to protect the neighbouring buildings from getting damaged.
7. Challenging the order passed by the Special Officer, the person responsible filed appeal before the Municipal Building Tribunal. The learned Tribunal after hearing the parties and relying on the opinion of the learned technical member of the Bench was pleased to dismiss the said appeal.
8. The petitioner is aggrieved by the same. Submission is that no opportunity was given to the petitioner to peruse the report of the technical member. The petitioner was not aware of the opinion given by the technical member relying on which the appeal stood dismissed.
9. The petitioner relies upon the Office Circular no.2/15-16 dated 11.07.2015 issued by the Director General [Building] with regard to approval of additional floor area ratio and height for partial extension over already sanctioned building under the prevailing Building Rules, 2009. Reliance has also been placed on the agenda of the Mayor in Council meeting dated 30.06.2015 wherein specific instruction for regularisation has been sought for.
10. According to the petitioner, one opportunity ought to have been given to the petitioner to file an exception to the opinion of the technical member to defend his case.
11. Prayer has been made to set aside the impugned order and remand the matter to the appellate forum after giving an opportunity to the petitioner to deal with the opinion of the technical member.
12. I have heard the submission made on behalf of the petitioner and have perused the order passed by the Special Officer [Building] and the Municipal Building Tribunal.
13. It appears that sanction was obtained for construction of G+4 storied structure. The petitioner constructed the 5th and partly 6th flo
