IMPORTANT POINT
The de minimis non curat lex principle was applied to uphold the regularization of minor unauthorized construction.

JUDGMENT :

AMRITA SINHA, J.

1. The order passed by the Municipal Building Tribunal on 4th November, 2022 in BT Appeal No. 52 of 2021 dismissing the appeal preferred by the petitioner thereby affirming the order passed by the Special Officer (Building) in demolition case no. 12-D/Br-VI/16-17 in respect of premises no. 27 Pemantle Street, Ward No. 62, Borough VI of the Kolkata Municipal Corporation is impugned in the instant writ petition.

2. The petitioner and the private respondent no. 5 are co-tenants of the subject premises which is a waqf property. The petitioner occupies the first floor and the private respondent no. 5 occupies the second floor.

3. Protesting the illegal activity of the private respondent in constructing structures on the roof of the first floor without any sanction of the authority, the petitioner lodged complaint before the Corporation. As the complaint of the petitioner was not redressed a writ petition was filed before the Court being WP No. 839 of 2016. Order was passed in the said writ petition on 1st September, 2016 by directing the Corporation to initiate demolition proceeding as the Corporation issued notice under Section 400(1) of the KMC Act, 1980 and to conclude the same after affording opportunity to the parties to adduce evidence and by passing a reasoned order.

4. In compliance of the order passed by the Court demolition proceeding under Section 400(1) of the KMC Act, 1980 was initiated. The Special Officer (Building) passed order on 26th April, 2017 directing regularisation of the construction made subject to certain conditions namely production of a stability certificate from the KMC Empanelled Structural Engineer and to deposit the fees demanded. Challenging the said order, the petitioner filed a further writ petition being WP No. 739 of 2017 which was heard and disposed by the Court on 4th May, 2018 by setting aside the regularisation of the unauthorised construction made at the behest of a person who is not entitled to apply for sanction. The Court directed the Special Officer to complete the demolition proceeding in accordance with law.

5. As the order passed by the Court was not complied a further writ petition WP No. 586 of 2018 was filed. During the pendency of the said writ petition an application for review was filed by the respondent authorities for review of the order passed in WP No. 739 of 2017 being RVWO 2 of 2019. The review petition was taken up for consideration by the Court and order was passed reviewing the order dated 4th May, 2018. The Court directed that the authorities will hear every person responsible for the unauthorised construction in accordance with law including the owner of the premises concerned. The writ petition being WP No. 586 of 2018 was disposed of by directing the authorities to conclude the proceedings within a particular time period.

6. In compliance of the direction passed by the Court the demolition proceeding was taken up for consideration afresh and after hearing the parties, order was passed on 24th October, 2019 once again regularising the unauthorised construction relying upon a communicating allegedly made by the landlady declaring that the person responsible obtained consent from her prior to making construction. The quantum of construction being 4.366 sq. mts., was treated as minor unauthorised erection or work.

7. Challenging the order of the Special Officer, the petitioner approached this Court once again by filing writ petition being WPO No. 270 of 2020 which was dismissed on 19th January, 2021 granting liberty to the petitioner to approach the appropriate forum for relief. Challenging the order of dismissal of the writ petition the petitioner preferred intra-court appeal before this Court being APOT No. 77 of 2021 which stood disposed of on 11th November, 2021 granting liberty to the petitioner to approach the statutory appellate forum.

8. The petitioner accordingly filed the statutory appeal being BT Appeal No. 52 of 2021 which was heard and d