IMPORTANT POINT
The impugned order was found to be arbitrary and unreasoned, and in contravention of statutory provisions, leading to its setting aside by the court.

JUDGMENT :

Rai Chattopadhyay, J.

1. The moot question determinable in this writ petition is as to whether the OSD (Building)/South, of the respondent, was justified in not directing for demolition of the existing structure of kitchen (asbestos shaded structure) at the western side ground floor of the building, in lieu of deposit of the ‘demand fees’, in spite of coming to a finding that the said structure was unauthorised and illegal, being beyond the purview of the sanctioned building plan. The writ petitioner is the son of the donor of ‘Debottor property’, that is the land and structure over there. According to the writ petitioner at present, the respondent no. 5 and 6 are in possession of the concerned property, unauthorisedly, by exercise of undue coercion and force.

2. The writ petitioner alleges of construction being made unauthorisedly and illegally by the said private respondent over the concerned property and that in collusion with and support of the respondent Kolkata Municipal Corporation.

3. This Court had earlier directed the Corporation vide order dated 11.02.2016, in C.O No. 4382 of 2015, to conclude the proceeding of demolition at the concerned premises. With respect to the said demolition procedure the authority as mentioned above held a hearing of the parties on 21.02.2017. The order of the said hearing procedure dated 22.02.2017, is challenged in the present writ petition.

4. Let the finding of the concerned authority in the impugned order dated 22.02.2017 be scrutinised at first.

5. The details of the unauthorised construction has been mentioned therein, in the following manner :-

“Detail of Unauthorised Construction of : -(1) Asbestos roofed structure with Brick Walls in the 3rd storey on South-East corner along with a polythene shed with C.I. Posts. (2) Single storied Asbestos roofed structure on South-West corner & North. All works are without sanction.”

6. The authority has noted that according to the report of the concerned Borough, infringement of the Building Rules, 2009, would be evident, i.e., of Rules 62, 70, 133 and 134. Borough has also mentioned in the report a previous order dated 11.12.2013, by dint of which the Person Responsible has been directed to demolish the impugned unauthorised construction as per the précis and the demolition sketch plan. That, in default the Corporation would be at liberty to demolish the same.

7. The Corporation serves notice, under Section 544 and 546 of the Act regarding unauthorised building and informing the date of demolition of the asbestos roof structures at ground floor and second floor of the said premise, on 17.12.2013. The process, however, has been abandoned, in the midst of it.

8. The authority recorded its observations as follows, in the said impugned order :-

“As per documents collected from Assessment Department name of Owner is EST Hemchandra Ghosh. No sanction plan has been produced for the building. As per record of Assessment Department there is one existing Asbestos Shaded Room at third floor. This is long pending case. The violation of Building Rules 2009 are so grave and serious and infractions of Building Rules for the same in terms of the provision for regulation framed for hearing & regularisation of the case U/s. 400(1) of KMC Act, 1980, as amended on June 20, 2015 could not be considered except old existing small structures at ground floor and roof shown in D. Sketch.

Going though the statement of P.R. I am inclined to pass demolition order for the structure marked in D. Sketch in respect of the impugned unauthorised construction. The structure shaded by Poly Sheet at roof and Asbestos Structures at mandatory open spaces may lead fire hazard. The structure should be removed immediately to avoid any accident/hazard.”

9. The operative part of the impugned order dated 22.02.2017 is as follows:-

“Part ‘A’

The P.R are directed to demolish the unauthorised structure of Asbestos shaded structure at (Northern Side) rear open space, Southern Side Asbestos Shade