The main legal point established in the judgment is that the concerned authority of Bally Municipality is not empowered to regularize deviations made dehors the sanctioned plan under Section 218 of the West Bengal Municipal Act, 1993.

JUDGMENT :

1. In the writ petition the order dated 31st January, 2014 is under challenge whereby the concerned authority of Bally Municipality passed an order based on the report of Municipal Engineering Directorate in connection with the construction made by private respondent no. 7 at 23/9, Hazra Para Lane, Bally, Howrah.

2. Learned advocate representing the petitioners submits that the grievance of the petitioners are two-fold, one is renovation of common passage and construction of drain which impacts the right of other occupants of the adjoining buildings on the said common passage as well as normal flow of sewage through the said drain and the second complaint centers around construction of G+2 storied building by the respondent no. 7 at the aforesaid holding number on obtaining sanctioned plan for constructing G+1 storied building. There are other deviations, according to the petitioners while making construction including converting chhaja (sunshade) at the east side of the 1st floor of the building into verandah. According to the petitioners, deviations made by the respondent no. 7 being person responsible, are required to be demolished since the order of regularization made by the concerned authority of Bally Municipality vide order dated 31st January, 2014 is without jurisdiction since Bally Municipality has got no statutory authority to regularize deviations on receipt of fees. In support of such contentions made on behalf of the petitioners reliance has been placed on the judgment of a coordinate Bench reported in (2014) 4 Cal LT 1 (HC), (Ghanashyam Das Vs. The Kolkata Municipal Corporation & Ors.) in order to demonstrate before this Court that the concerned authority of the municipality in the context of Section 218 of the West Bengal Municipal Act, 1993 (hereinafter referred to as the ‘said Act of 1993’) is not authorized to regularize unauthorized construction.

3. Per contra, Mr. Ayan Banerjee, learned advocate representing Bally Municipality has strenuously argued to defend the decision as contained in the impugned regularization order dated 31st January, 2014 and it has been submitted that though initially attempt was made by the respondent no. 7 to construct 2nd floor upon constructing RCC columns, but subsequently on the intervention on the municipality the said columns were demolished and at present the building in question is G+1 storied for which sanctioned plan was accorded by the municipality. However, it has been submitted on behalf of the municipality that there are certain minor deviations at different parts of the premises in question out of which the striking one is conversion of chhaja (sunshade) into verandah at the 1st floor of the said premises at the eastern side which is not permissible in terms of the sanctioned plan.

4. In addition thereto on behalf of the municipality reliance has been placed on the three-Judge Bench judgment reported in AIR 1972 CAL 459 (FB), (Purusottam Lalji & Ors. Vs. Ratan Lal Agarwalla & Ors.) in order to contend that in the context of Section 414 of the Calcutta Municipal Act, 1951 the Court interpreted the power conferred upon the Municipal Commissioner whether to regularize deviations or not in consideration of the Building Rules which are relaxable or not relaxable. According to the municipality, since in the context of Section 414 of Calcutta Municipal Act, 1951 power of Municipal Commissioner was interpreted by the three judge bench wherein it has been decided that in particular circumstances the Municipal Commissioner is authorized to exercise discretion not to pass order of demolition; the said ratio laid down by the larger bench may be applied in the present case in the context of Section 218 of the said Act of 1993 for regularizing the minor deviations as delineated in the impugned order dated 31st January, 2014.

5. It is already recorded in the previous order dated 22nd January, 2024 that private respondent no. 7 was attempted to be served with the notice, but