Strict enforcement of laws against unauthorized construction and the importance of not granting relief to those responsible for illegal acts.

JUDGMENT :

AMRITA SINHA, J.

1. A five-storied building has been constructed by the petitioner without obtaining a sanctioned plan. The Corporation has invoked the provision of Section 400(8) of the Kolkata Municipal Corporation Act, 1980 (in short ‘the Act’) and has demolished a portion of the top floor of the illegal structure. The petitioner is aggrieved by the same.

2. It has been submitted that on the complaint lodged by the private respondent, the Corporation initially processed the case under Section 400(1) of the Act and subsequently, converted the proceeding from Section 400(1) to Section 400(8) of the Act. The petitioner submits that the same is impermissible in law.

3. The fact that the demolition proceeding was initiated under Section 400(1) of the Act appears from the instruction forwarded by the engineers of the Corporation reflected in the order dated December 1, 2023 passed in WPA No. 23516 of 2023 (Smt. Badrun Nessa vs. The Municipal Mayor, the Kolkata Municipal Corporation and Others).

4. The Office Circular No. 07 of 2020-2021 issued by the Director General (Building), KMC dated December 16, 2020 has been relied upon. It has been submitted that since the land is a thika property, accordingly, the demolition could not have been made without intimating the Thika Controller. The notice issued by the Thika Controller for spot verification of the land has also been placed before this Court. It has been contended that prior to spot verification by the thika authority, the Corporation ought not to have demolished the structure.

5. Learned advocate representing the Corporation submits, upon instruction, that the instruction which was forwarded in the earlier writ petition was obtained on November 22, 2023 and Section 400(8) proceeding was approved by the Mayor on November 6, 2023.

6. It has been submitted that upon detection of massive unauthorized construction, the department initiated proceeding but it was not known to the concerned Executive Engineer that the matter was already forwarded to the higher authority and dealt with under Section 400(8) of the Act. Any proceeding under Section 400(8) of the Act requires an approval of the Mayor-in-Council and subsequently the Mayor. Till the approval of the Mayor is obtained, steps cannot be taken under Section 400(8) of the Act.

7. It has been submitted that as the entire building is without any sanctioned plan, accordingly, the Corporation invoked Section 400(8) of the Act.

8. Prayer has been made for dismissal of the writ petition.

9. I have heard and considered the submissions made on behalf of both the parties.

10. It is an admitted fact that the five-storied building has come up without any sanction. The person responsible for making such massive unauthorized construction is trying heart and soul to hold on to the same. Technical pleas are agitated for the purpose of stalling the process of demolition.

11. It appears from the instruction forwarded by the engineers of the Corporation that the decision to invoke Section 400(8) of the Act was taken and approved by the Mayor even prior to initiation of the proceeding under Section 400(1) of the Act.

12. The difference between invocation of Section 400(1) and 400(8) is that, an opportunity of hearing is required to be given in a proceeding under Section 400(1), whereas, no prior opportunity of hearing is required to be given if the proceeding is under Section 400(8) of the Act.

13. The Corporation, upon detection of the unauthorized construction, initiated the proceeding under Section 400(8) and the same was approved by the Mayor of the Corporation. In fact, the notice as required to be issued under Section 400(1) of the Act, was not even served upon the person responsible. The petitioner never had the occasion to know as to whether the proceeding would be initiated either under Section 400(1) or under Section 400(8) of the Act. It is only relying upon the information provided by the respondent Corporation, as recorded in the order p