IMPORTANT POINT
The court emphasized the importance of planned development and the need to address unauthorized constructions. It also highlighted the right of the petitioners, as owners, to be heard before the order was passed.

JUDGMENT :

Saugata Bhattacharyya, J.

1. In the writ petition, inter alia, petitioners being the owners of office spaces and car parking spaces have challenged the order dated 5th April, 2012 passed by the Deputy Chief Engineer (Building) South of Kolkata Municipal Corporation (hereinafter referred to as “KMC”). The premises in question situates at 39A, Jorapukur Square Lane, Kolkata – 700 006. Respondent nos. 5 and 6 had obtained sanctioned plan on 22nd January, 2008 which is annexed to this writ petition and completed the construction and thereafter obtained completion certificate on 30th May, 2011 after completing construction of G+3 storied building in terms of the sanctioned plan. On different dates starting from 9th February, 2011 office spaces and car parking spaces were sold out by the private respondents in favour of ten petitioners by executing conveyance deeds. Some of the conveyance deeds are also a part of writ petition.

2. Petitioners allege that on finding car parking space at the ground floor of the building in question was being converted into office space denying the right of the petitioners to use their respective car parking spaces which was purchased by them by making new constructions at the instance of private respondent nos. 5 and 6, made representations first on 7th May, 2012 to the concerned authority of KMC and subsequently other representations were also made as indicated in paragraph 13 of the writ petition complaining of unauthorized constructions were carried out by the private respondents de hors the sanctioned plan.

3. In addition thereto it has also been alleged by the petitioners that in 2017 private respondents started construction on the roof of the premises in question and vide letter dated 10th October, 2017 the same was brought to the notice of the concerned authority of KMC for taking necessary steps.

4. It is submitted on behalf of the petitioners that KMC started demolition case no. 01-D/IV/12-13 under Section 400(1) and Section 416 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as “the said Act of 1980”) but the said demolition proceeding culminated into an order dated 5th April, 2012 which is subject matter of challenge in this writ petition. In connection with unauthorized construction on the roof of the building in question a stop work notice was issued on 1st December, 2015 under Section 401 of the said Act of 1980 and the same was intimated to the officer-in-charge of the local police station and an F.I.R. was lodged. It also emanates from the affidavit-in-opposition filed on behalf of KMC that in 2018 on inspection of premises in question further unauthorized construction was found for which a proceeding under Section 400 of the said Act of 1980 was initiated.

5. While answering queries of the Court it has been submitted on behalf of the petitioners that the order dated 5th April, 2012 was questioned by filing the present writ petition in 2017 since the impugned order was not communicated to the petitioners at the material point of time and no opportunity of hearing was given to them before taking decision dated 5th April, 2012 as a result whereof petitioners were kept in dark which caused delay in preferring the writ petitioner questioning order dated 5th April, 2012 of KMC. It is also submitted that several representations were made by the petitioners starting from 7th May, 2012 just after the impugned order was passed by the KMC. While explaining delay petitioners have relied upon following judgments :

(i) (1998) 8 SCC 685 (State of U.P. & Ors. Vs. Raj Bahadur Singh & Anr.);

(ii) (2018) 2 CHN 402 (Keshaw Prasad vs. State of West Bengal & Ors.).

6. According to the petitioners the order of regularising unauthorized construction whereby car parking space at the ground floor of the building in question has been converted into office space in gross violation of the sanctioned plan on payment of fee is not permissible under Section 400 of the said Act of 1980 and t