Calcutta High Court (Appellete Side)
For The vs State Of West Bengal & Ors. Reported ... on 24 November, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
24.11.2010. M.A.T. No. 1487 of 2010
C.A.N. No. 9539 of 2010
C.A.N. No. 9540 of 2010
Mr. Aniruddha Chatterjee
Mr. Raja Tarafdar
Mr. Srijib Chakraborty
Mr. Sk. Ainul
.. for the appellants.
Ms. Nandini Mitra
Mr. Gopal Chandra Das
.. for the respondent Nos. 2,3,4 and 5.
Mr. Dilip Kumar Chatterjee
.... for the respondent Nos. 7, 8 and 9.
Mr. Alok Kumar Ghosh
Mr. Nilanjan Chatterjee
.. for the State.
_________
Pratap Kumar Ray, J.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 18th August, 2010 passed in W.P. No. 4325 (W) of 2010, this appeal has been preferred by the respondent nos. 7 and 8 of the writ application. In preferring the appeal there is a delay of 52 days and application under Section 5 of the Limitation Act has been filed. At the first sitting of the Court, this application under Section 5 of the Limitation Act was moved which appeared as a listed matter, along with the stay application. Noticing the averments of the application under Section 5 of the Limitation Act, we granted leave to file a supplementary affidavit by detailing some new facts in support of the said application. Affidavit has been filed at 2 P.M. and the matter has been taken up for hearing. From the supplementary affidavit filed by the learned Advocate-on-Record and the application under Section 5 of the Limitation Act we are satisfied with the reason of delay as well as sufficiency of it. The ground is illness of learned Advocate-on-Record. Learned Advocates appearing for the respective respondents, namely, the Corporation and the writ petitioner-respondent nos.7 and 8 have not opposed this application due to the ground of illness of learned Advocate-on-Record. Considering the averments made in the application and the submissions made by the parties, we are satisfied with the sufficiency of reason and, as such, the application under Section 5 of the Limitation Act is allowed by condoning the delay.
The appeal is now in order.
Registry is directed to make necessary endorsement.
The stay application is taken up for hearing.
All parties are present before us.
Having regard to the nature of the order impugned, the direction passed by the learned Trial Judge and considering the fact that the order of demolition of unauthorised structure, being a major structure as held by the Special Officer (Building) of Kolkata Municipal Corporation while hearing the demolition case and which was confirmed by the Municipal Building Tribunal in appeal led by the present appellants and subsequently in the application under Article 227 of the Constitution of India registered as C.O. No. 74 of 2005, as moved by the present appellants earlier, unsuccessfully, assailing the said order of demolition by the Special Officer confirmed by the said Building Tribunal, we are of the view that the stay application and the appeal both could be disposed of by hearing today. Parties have been directed to be ready.
All parties have agreed for final disposal of appeal today. All formalities to the appeal accordingly stand dispensed with. Since all parties are appearing before us, appeal is taken up for final disposal along with the stay application, on consent of parties.
At the first sitting of the Court when we noticed that an order of demolition of major structure was passed long back in October, 2003, which after prolonged litigation, finally crystalised by an order of dismissal of application under Article 227 of the Constitution of India registered as C.O.No. 74 of 2005 by the Calcutta High Court on 22nd December, 2006. But the Municipal Commissioner and/or the officers concerned responsible to implement such demolition order of major unauthorised structure since did not pay any heed, we asked the responsible officer to attend at 2 P.M. before this Court. Shri Subrata Kumar Singh, Director General (II) of Kolkata Municipal Corporation who is the responsible Officer to demolish the unauthorised structure in terms of the order of Special Officer is present before us. This appeal has been resisted by the writ petitioner/respondent nos. 7 and 8 and the Kolkata Municipal Corporation.
The impugned order reads such:-
"18.08.2010 - Let the Vokalatnama filed on behalf of the respondent nos. 7 and 8 be kept with the record.
Heard Mr. Chatterjee, learned Advocate for the petitioner, Mrs. Mitra, learned Advocate for the Kolkata Municipal Corporation and Mr. Sanyal, learned advocate for the respondent nos. 7 and 8.
It appears that the mother of the petitioners had lodged a complaint before the Kolkata Municipal Corporation against the alleged unauthorised construction carried out by respondent nos. 7 and 8. Show cause notice was issued by the authorities of the Corporation, reply was furnished and the matter was heard by the Special Officer (Building). The Special Officer (Building) held that the building was unauthorised and directions were issued for demolition. Being aggrieved by the order of the Special Officer (Building), appeal was preferred before the Kolkata Municipal Corporation Building Tribunal. The learned Tribunal affirmed the order passed by the Special Officer (Building). By filing a revisional application under Article 227 of the Constitution of India, the respondent nos. 7 and 8 challenged the order dated 28th October, 2004 passed by the learned Tribunal. By judgement and order dated 22nd December, 2006, the revisional application being C.O. 74 of 2005 was dismissed.
Learned advocate appearing on behalf of the petitioner submits, since it appears that the Corporation is reluctant in implementing the order as evident from paragraph 12 of the writ petition, appropriate directions may be issued.
Having heard the learned advocates for the parties since I find that the order of demolition stands, considering the facts and circumstances of the case, the writ petition is disposed of by directing the Municipal Commissioner, the Chairman, Borough - XV and the Executive Engineer ©, Building Department, all of Kolkata Municipal Corporation, the respondent nos. 3, 4 and 5 respectively to implement the order passed by the Special Officer (Building), since affirmed, by taking appropriate steps by 27th November, 2010. If necessity arises, the said respondents are at liberty to pray for assistance from the Officer-in-Charge, Metiabruz Police Station, Kolkata, the respondent no. 6. If assistance is sought for, the respondent no. 6 shall provide necessary assistance to the said respondents......"
Initially on behalf of the appellants Mr. Srijib Chakraborty, learned Advocate started to argue the case and thereafter Mr. Aniruddha Chatterjee, learned Advocate on leave of the Court appeared on behalf of the appellants to complete the legal argument. It is the submissions of the learned Advocate appearing for the appellants to this effect:-
1. That the writ application was not maintainable seeking implementation of the order dated 22nd December, 2006 passed by Prbuddha Sankar Banerjee, J (as His Lordship then was) in an application under Article 227 of the Constitution of India registered as C.O. No. 74 of 2005.
2. That the writ application is not maintainable seeking implementation of the order of Special Officer (Building) confirmed by the Municipal Building Tribunal.
3. That the High Court in the writ jurisdiction cannot direct the Municipal Commissioner to demolish any structure by specifying the date as has been done in the impugned order.
4. That the Municipal Commissioner when has a discretionary power to allow the retention of the unauthorised structure, without giving any opportunity to the appellants seeking regularisation of such unauthorised structure, direction to demolish it, is not legally permissible.
5. That no cause of action arose for filing the writ application.
It is the contention of the respondents that in the year 2003 the order of demolition was passed after full-fledged hearing to the appellants and against that order they moved the Municipal Building Tribunal unsuccessfully and thereafter in the Calcutta High Court under Article 227 of the Constitution of India in C.O. No. 74 of 2005. It is contended that right from the forum of Special Officer (Building), thereafter to the Tribunal aforesaid and in the High Court, the appellants prayed for regularisation of unauthorised structure contending, inter alia, that the unauthorised structure was not major structure but minor structure. But such contention was rejected by the Building Tribunal and also by the High Court earlier in C.O. No. 74 of 2005, by holding that the construction was major, in view of raising construction, as it appears from the order of Special Officer, in the back space area, in the front space area as well as in the side space area which were required to be kept open following the statutory building rules and regulations of Kolkata Municipal Corporation. It is further contended that the appellants did not demolish unauthorised structure and exhausted all remedies available in the concerned statute as well as constitutional remedy, assailing the order of demolition unsuccessfully. It is further contended that the Corporation under the statute, namely, Section 400 (7) of the Calcutta Municipal Corporation Act, 1980 was bound to demolish the unauthorised structure, a major structure, as held all through by the Calcutta High Court, learned Tribunal and the Special Officer as aforesaid. But the Municipal Commissioner has failed to discharge his statutory duty. Hence, the writ petitioners, who are legal heirs of the original complainant against such unauthorised structure, are legally entitled to move the Writ Court.
Mr. Chatterjee, learned Advocate, appearing on behalf of the writ petitioner/ respondents, further has submitted that the appellants since the year 2003 are enjoying such unauthorised construction by using the building for their own purpose and did not care to demolish it despite the order of the Tribunal as well as the High Court. In answer to the maintainability of the writ, it is submitted that the writ jurisdiction is wide enough to pass appropriate order and remedy on the special facts and circumstances of the case.
Ms. Nandini Mitra, learned Advocate, appearing on behalf of the Kolkata Municipal Corporation, has frankly submitted before us that the Corporation is negligent to perform their statutory duty. It is contended that the Corporation ought to have demolished the structure after the order of demolition reached its finality when the application under Article 227 of the Constitution of India being C.O. No. 74 of 2005 was dismissed by the Calcutta High Court. Learned Advocate expressed apology on behalf of the Corporation for not taking appropriate steps to implement the order.
Having regard to the rival contention of the parties, the basic question as is required to be considered by us is whether the writ application is maintainable on the factual premises as pleaded in the writ application. To consider that issue we have to discuss in summary, the relevant portions of the earlier orders as passed by the Special Officer (Building), Building Tribunal and the High Court respectively. The relevant portion of the order of the Special Officer (Building) reads such:-
" "O R D E R E D"
that the persons responsible, the present owners of the suit premises shall demolish all portions constructed unauthorizedly at all floor levels deviated from the sanctioned building plan No. 64 dt. 3.10.97 at their own risk and cost to provide the stipulated widths of mandatory open spaces in the front, on the both sides and at the back side of the building and also to comply the sanctioned condition for throwing or strip of land having width 0.60 M. for the entire length on the southern side along with the portions of land for splaying of corner, 2.40 M. on each southern side and eastern side of that corner to K.M.C. Road and boundary wall of the suit premises may be constructed in compliance to the said B.S. plan. The persons responsible are at liberty to apply for obtaining sanction for construction of stair within sanctioned space.
that the persons responsible now the present owners shall have to submit a sworn-in affidavit stating therein that the P.R. shall never carry out any work, infuture, without obtaining necessary permission from K.M.C. The order is to be complied with within 15 (fifteen) days from the date of communication of the order, failing which the authorities of K.M.C. shall demolish the alleged unauthorised structure without any information whatsoever, at the entire risk and cost of the P.R. as per terms stated in the notice u/s. 400 (1), already served.
The order is passed on the strength of power delegated by the Mpl. Commissioner as per provision u/s. 48 (3) of C.M.C. Act, 1980".
The order of Municipal Building Tribunal in B.T. Appeal No. 78 of 2003 reads such:-
"The instant appeal has been filed by Sk. Suleman and Sk. Akhtar who are the appellants. P.R. being dis-satisfied with the order as passed by Spl. Officer (B) on 20.10.03. in Demolition Case No. 1-D/2003-04 in respect of premises No. T-107, Murri Road.
The facts leading to initiation of the proceeding u/s. 400 of K.M.C. Act that on inspection of the premises it was found by the K.M.C. personnel that unauthorised works have been made in connection with construction with R.E.C.C. floor structure of 3 storied residential building with brick masonry wall, balcony and RCC framed stair cases leading from ground floor up to roof of the 2nd floor. All constructions were made which were in addition to sanctioned building plan No. 64//B-XV/97-98 dt. 3.10.97, and in carrying out such construction there were violation of several Building Rules as noted in the précis i.e. Rule 51 i.e. height of the bldg. and width of the passage. Rule 54 width of the front open space which was less than required mandatory open space. Rule 56 i.e. Nil back space instead of 3'15 mtr. on the west. Rule 57 as Nil side space has been left instead of 1'2 mtr. on both of southern and northern sides. Violation of Rule 67 as floor area ratio is 2'95 instead of 1'59. Rule 62 i.e. P.C. area of ground coverage is 98'4% (14.06 sq.ft.)but required P.C. area is 53'18% (99.48 Sq.ft.). There were violation of Rules 109 and 110 with regard to structural stability and quality of materials used which are un-known.
After hearing both sides the S.O. (B) observed that the construction was made unauthorisedly in deviation of the sanctioned building plan No. 64 dt. 3.10.97. There was unauthorised construction on all the 4 sides and at all floor levels and there was also unauthorised construction of a room in the front and also a stair room at the back. There was also construction of projected cantilever of all sides causing encroachment of land gifted to K.M.C. meant for splaying corner and also throwing of strip of land on the southern side for the entire length having width "60 mtr. resulting in infringement of Building Rules 54, 56, 57, 61 and 62 very grossly and major in nature which can not be ignored and the person responsible of the suit premises shall have to demolish unauthorised portion of the building constructed which was in deviation of the Building Plan. There was also violation of Building Rule 51 (1) (b) of the Bldg. Rules. Further the P.Rs have not complied with the Rule 51 also not honoured their undertaking to gift land to K.M.C. for splaying corner.
Considering all the facts and circumstances of the case the S.O. (B) ordered that the P.R. of the suit premises shall demolish all portion constructed unauthorisedly at all floor levels which were in deviation of the sanctioned building plan No. 64 dt. 3.10. 97 in order to provide width of mandatory open space on the front, back and both sides of the building and also for complying the sanctioned condition of their land having width of '60 mtr. for the entire length on the southern side along with portion of land for splaying of corner of 2.40 mtr. on each southern side and eastern side of that corner of K.M.C. road and boundary wall of the said premises may be constructed in compliance with the said Building Plan. The S.O. (B) has given option to the P.Rs. for applying for sanction of construction of stair within the sanctioned space.
Being aggrieved by and dissatisfied with the order of S.O. (B) the P.Rs. have preferred the instant appeal as appellants, challenging the legality and validity of the order of S.O. (B) (a) alleging that the Respondent No. 2 acted illegally without having any authority and (b) without servicing any notice U/s. 400 (1) of the Act and that apart he has violated (c) the principle of natural justice though in fact the appellants constructed the building in accordance with the sanctioned building plan dt. 3.10.97. It is alleged that the S.O. (B) has failed to consider that the Rules 51, 54, 57 & 62 have got no application in the present case in as much as there is certain small deviation which can be ignored by S.O. (B) in his judgement. Further the S.O. (B) has failed to consider that Rules 109 & 110 of the K.M.C. Building Rules have got no application in the present case as the building has been constructed in accordance with plan sanctioned by the Municipal Authority and there is sufficient foundation and structural stability and workman-ship and materials used in accordance with the National Building Code. It is alleged that there was some minor deviation which should be ignored by the S.O. (B) at the time of consideration of the case. The S.O. (B) did not apply his judicial mind in the facts and circumstances of the case while passing the order which was not a speaking one and therefore the order should be liable to be set aside.
Point for consideration as to whether the order as passed by S.O. (B) was illegal and bad in law and therefore liable to be set aside.
Decision with reason:
The Ld. Lawyer appearing on behalf of the appellants argued that the appellants are the owners of the premises. The plan was sanctioned on 3.1097 but construction was made in deviation of the sanctioned building plan as per departmental allegation. But he submitted that the précis relates to only 3rd storey. The notice U/s. 400(1) was served upon the appellants in respect of only 3rd storey but the S.O. (B) directed to demolish the unauthorised construction in respect of all floors of the building. He argued that the complainant i.e. Respondent No. 4 is the concerned with his structure. 90%portion belonging to the appellant and only 1% portion lies the structure of the Respondent no. 4. He argued that the complainant did not raise his construction following the Building Rules. One portion has been attached of the complainants' premises. The appellants purchased the land on the northern side of the complaint premises. He argued that précis was defective and so the matter should be remanded back to the S.O. (B) for a fresh hearing after serving them opportunity to prove their case, by submitting their objection. He argued that none was affected due to such construction.
The Ld. Lawyer for the Respondent No. 4 submitted that the appellants purchased some land afterwards which was not subject matter of the case. The appellants were given enough opportunity to prove their case. So there was no violation of natural justice. There was encroachment on all sides of the building. A portion of Balcony has been encroached upon the premises of the complainant who has one storey building there on the south and in doing so the appellants have encroached the passage which belongs to complainant. So saving demolition there is no other way. The S.O. (B) has discussed all points vividly. On two occasions the building was inspected. K.M.C's land was encroached. The appellants raised construction encroaching the premises of the complainant which can not be regularised and therefore such encroachment should be removed.
The Ld. Lawyer for the K.M.C. argued that it was a construction of 3 storied building. Rules 51, 54,, 56, 57, 61 & 62 all were violated in raising such construction. A joint inspection was held and the P.R admitted infringement. P.Rs erected slabs for the purpose of Balcony and all floors. The P.R. did not leave the splayed corner. The most portion of the land was covered by such construction. Mandatory open spaces were covered on al sides. He argued that the demolition sketch map would show a clear and vivid picture of such serious violation. As a result the question of structural stability as well as workman ship and materials used would come into picture. He argued that the record and sketch map are very clear about the said violation. Notice U/s. 401 was issued to stop such unauthorised construction. Guard was posted and cost was paid by the P.R. But in spite of that such constructions ere raised by the P.Rs. The P.R. raised new points in the appeal which were raised before the S.O. (B) and therefore it should not be considered at this stage.
He submitted that there was no illegality or infirmity in the order of S.O. (B0 and therefore such order of S.O. (B) should be upheld. In reply the d. Lawyer for the appellants argued that there was internal violation made which were minor in nature, common passage was used through which the complaint make ingress and egress to and from the house. He submitted that the précis was defective and so the matter may be referred to the S.O. (B) so that fresh précis should be drawn up and the appellant may make out their case. Perused the materials on records. He the Ld. Lawyers of both sides. Considered.
It appears that the erstwhile owner of the premises No. T-107, Murri Road obtained a Building Sanction Plan No. 2 (B.XV) dt. 15.6.96 subsequently the present owners i.e. the P.R. submitted plan for addition to the said premises, which was sanctioned vide B.S. Plan No. 64 dt. 3.10.97. The present owners purchased the said premises along with some incomplete structure. So by dint of their purchase the, stepped into the shows of the erstwhile owner with all the facilities as well as liabilities in respect of the building of the said premises. So the P.R.s could not avoid their liability by setting up that the erstwhile owner did violate the building rules and not by them. As per subsequent plan it appears that land area was 187'06 mtr. sqr. permissible ground coverage was 65% proposed ground coverage was 53.18% permissible height was 11 mtr. proposed height was 9'6 mtr. permissible floor are ratio was 1'59 and proposed floor are ratio was 2'95.
Now from the précis it appears that the height of the building is 9'45 mtr. the width of the passage giving access 4'50 mtr. + set back. As per Rule 54 width of the mandatory open space has been left '60 mtr. + set back. Height of the building being 9'45 mtr. Rule 56 i.e. back space left Nil instead of 315'50 c.m.+ set back on the west. Height of the building 9'45 mtr. Both side space on the south and the north respectively was left Nil instead of 1'20 mtr. so there was violation of Rule 57. Floor area ratio was consumed 2'95 mtr. instead of 1'59 so there was violation of rul 61. Rule 62 is also violated as P.C. area of ground overages was 98'40% though required P.C. area is 53.18%. Violation of Rules 51 occurred due to non leaving of spaces on all sides including set back. So as a natural corollary question of structural stability, workmanship of quality of material used would effect. So there was violation of Rules 109 and 110 of the Building Rules.
On comparison to the said revised B.S. Plan and the D. Sketch Plan it appears that while obtaining the said plan the P.R. proposed to release strip of land measuring '600 mtr. to K.M.C to be merged with K. M.C. common passage runs on the north of the building. And also undertook to gift K.M.C. a splayed corner on the north eastern portion of the building. There was a semi under ground reservation on the eastern portion of the building as per plan. And on the extreme west there was a proposal for septic Tank on the south of the building. There was a proposal for keeping open space of 1'20 mtr. Now it appears from the D. Sketch plan that the P.R. did not throw the corners to the K.M.C. on the on the north eastern portion and the said western portion of the premises also dis not leave he common passage on the northern portion of the building running from east to west as per B.S. Plan. Rather he covered the entire front of building leaving only '60 mtr. open space on the front portion of the building. The P.R. encroached 1'20 mtr. passage and constructed building thereon. They did not leave the back open space for the septic Tank. Rather on that portion they constructed stair case. On the south portion of the building they have encroached 1'20 mtr. So no open space left there on the south on the north and also on the other sides as per sanctioned revised Building Plan. So it can not be said deviation which was minor in nature as argued by the Ld. Advocate on behalf of the appellant.
The allegation of the Pvt. Respondent that not only the P.Rs covered the entire side space on the north but also erected a projected Balcony covering the land of Respondent No. 4 and as a result there was a complete blockage of air, light, ventilation of her building which is situated on the adjacent north of the premises No. T-107, Murri Road. So all those infringements of building rules can not be said to be minor in nature so that they may be regularised. The S.O. (Building) has vividly discussed about the infringement and violation of rules. There is no need of any reiteration of the said violation. Suffice is to say that S.O. (B) has passed a reasoned order as well as speaking order after considering all the points and therefore we do not find any justifiable reason to interfere with such order.
In view of the matter we are constructed to hold that there was no illegality committed by S.O. (B) in passing the order of demolition of all the portion constructed unauthorisedly on all four levels to make it as per with the sanctioned B.S. Plan. So the order of S.O. (B) was justified and deserves no interference.
In the result the appeal fails. Hence, Ordered -
That the B.T. Appeal No. 78 of 2003 be and the same is hereby dismissed on contest without cost.
The order dt. 20.10.2003 as passed by Spl Officer (Bldg.) in Demolition Case No. 1-D/03-04 in respect of premises No. T-107, Murri Road, Ward No. 138, Borough XV stands affirmed.
A copy of the order together with C.R. be sent to the Mpl. Commissioner for his information and necessary action".
This order of Building Tribunal was assailed in an application under Article 277 of the Constitution of India registered as C.O. No. 74 of 2005. This was dismissed by the order dated 22nd December, 2006 passed by Prabuddha Sankar Banerjee, J. ( as His Lordship then was). The relevant portion of the order reads such:-
"On the basis of the said reported cases, Mr. Banerjee contended that the Special Officer (Building) and the Tribunal ought to have given option to present petitioners for making the unauthorised structure into authorised one by payment of penalty etc. in other words, Mr. Banerjee contended that the Special Officer (Building and the Tribunal ought to have used their discretion. The said plans were strongly opposed by the private respondent i.e the respondent no. 4. Mr. Dilip Kumar Chatterjee, Learned Lawyer for the respondent no. 4 strongly argued before me that under no circumstances the unauthorised structure can be considered to be major in nature. He drew the attention of the Court to page 27 which is the detailed report of the Special Officer (Building). Special attention of the Court was drawn to pages28, 37, 34, 37 and 38 of the said report. On the basis of the same, it was submitted that in the said detailed report, each and every portion of the unauthorised construction has been mentioned. On the basis of he same, it was submitted by Mr. Chatterjee Learned Lawyer for he respondent no. 4 that there was major deviation from the sanctioned plan regarding the construction and it is clear from the report that unauthorised construction was made on all sides of the building. He drew attention of the Court to the report and on the basis of the same it was submitted that the respondent no. 4 being affected seriously due to the said unauthorised construction which has been made on the best side i.e. on the Southern side of his client's premises.
He relied upon the case in between M/s. Land & Bricks & Entertainments Lt. & Anr. -vs- State of West Bengal & Ors. reported in1991 (2) CLJ. On the basis of the same, it was submitted that the illegal construction can be regularised if it is found that there was major deviation.
I have gone through the report of the Special Officer (Building) which runs in 14 pages. On perusal of the said report which is AnnexureP-3 it is crystal clear that there was major illegal construction and each and every such unauthorised construction has been duly mentioned in the said report. The said report was also duly considered by the Appellate Authority. Mrs. Mitra, Learned Advocate appearing for the Respondent nos. 1 to 3 supported the impugned order and on the basis of the report of the Special Officer (Building), it was submitted by her that the Tribunal rightly rejected the appeal thereby affirming the order of the Special Officer (Building.) as there was major unauthorised construction in violation of the sanctioned plan. She challenged the pleas taken by Learned Lawyer for the petitioners on the ground that under no circumstances the said deviation can be treated as minor.
I have already stated that the report of the Special Officer (Building) clearly provides that there was major deviation from the sanctioned plan ............ major unauthorised structure was constructed. As such I cannot accept the plea that it was minor deviation.
In view of the said position, I am of clear opinion that the cases referred by Mr. Banerjee on behalf of the petitioners are not applicable in the present case as such, the revisional application is dismissed being devoid of any merit. However, there would be no order as to cost."
Smt. Bandana Ghosh, who complained against the unauthorised structure, was alive when the application under Article 227 of the Constitution of India was moved and she was a party respondent therein. But subsequently she breathed last. After death, her sons being aggrieved by inaction of Municipal Commissioner to demolish the unauthorised structure despite finality of lis by High Court, had moved the Writ Court, the order of which is under appeal before us.
So far as the maintainability of the writ application as raised by Mr. Chatterjee, ld. Advocate on behalf of the appellants, we have to deal with the issue in the angle of factual premises of the case, the statutory provision, namely, The Kolkata Municipal Corporation Act, 1980 and the jurisdiction and power of the Writ Court.
From the facts, it appears that the appellants fully exhausted their right of representation/ opposition etc. so far as unauthorised construction is concerned before the Special Officer (Building). An order of demolition passed directing them to demolish within certain period, that is, fifteen days from the date of order, failing which the Corporation was directed to implement the order. The statutory provision to that effect about implementation of the order of demolition is Section 400(7) of the said Act which reads such:-
" 400 (7) - Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-section (1) or where an order under that sub- section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, he Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act."
Since the appellants filed an appeal before the Municipal Building Tribunal, there was no demolition during pendency of the appeal. The statutory Appellate Tribunal, confirmed the decision of Special Officer. The appellants moved the application under Article 227 of the Constitution of India in C.O. No. 74 of 2005 assailing the said order and this application was dismissed on 22nd December, 2006 and against this order, no special leave petition to Apex Court was preferred. Hence, with effect from 23rd December, 2006, as the appellants did not pursue further legal proceeding by assailing the order passed in the application under Article 227 of the Constitution of India to the Apex Court, they became liable to demolish it and Municipal Commissioner under sub-section 7 of Section 400 was duty bound to cause demolition as they failed to demolish it and thereby to recover the expenses of demolition, as arrear tax, in terms of the statutory provision. Since the Municipal Commissioner did not act and kept the matter pending for last four years even after finality of the order of demolition, by dismissing the application under Article 227 of the Constitution of India by the High Court, the complainant was not remediless to agitate her grievance. She subsequently approached the Corporation just after the order of High Court was passed. After death of the complainant, her legal heirs, the sons, who are living in the building adjacent to the concerned building, which is the subject matter of demolition case naturally have legal right, to agitate their grievance. Once the order of demolition reaches its finality by exhausting different legal forums, even up to the High Court, the Municipal Commissioner cannot sit tight or keep silent over the issue to implement it. Under such circumstances, the only remedy of the writ petitioners is to file a writ application, assailing inaction of said officer, to act as per statute.
From the pleading of the writ application, it appears that the entire grievance is against the Corporation for non- implementing the order passed under Section 400 of said Act. The Municipal Commissioner under the statue when was bound to cause demolition, his failure to discharge said duty, naturally becomes a cause of action to move the writ application. Article 226 of the Constitution of India is couched in a language with wide amplitude providing broad jurisdiction to the Writ Court, to deal with the issue for grant of necessary relief. The writ application is maintainable for enforcement of right conferred by Part-III and "for any other purpose". "For any other purpose"
gives power of wide amplitude whereby writ application is maintainable for implementation of any statutory provision or against inaction of any body to perform their statutory duty and responsibility and for rendering appropriate justice. The power of the Writ Court under Article 226 of the Constitution of India is wide and Writ Court has the power to reach anywhere to cure injustice and to render proper and appropriate justice. Even a person has only legal power is entitled to move writ Court. Reliance is placed to the case J.M. Desai -vs- Rashan Kumar reported in (1976) 1 SCC 671.
In the writ application, the writ petitioners prayed for necessary direction upon the Commissioner as well as the Corporation to implement the order of demolition, which statutorily they were bound to perform. The prayers
(b) and (c) are to this effect reads such:-
"(b) A writ in the nature of Mandamus do issue commanding the respondent authorities to demolish unauthorised structure on all sides of the building in respect of premises No. T-107, Murry Road, Kolkata-700018 without any information whatsoever at the entire risk and cost of the respondent nos. 7 and 8 as per terms stated in the notice under Section 400(I) of the Kolkata Municipal Corporation Act, 1980.
© A writ in the nature of Mandamus do issue commanding the respondent no. 6 to render necessary help to the Kolkata Municipal Authorities in demolishing unauthorised construction at premises No. T-107, Murry Road, Kolkata-700018, if required, in terms of the order of the Hon'ble Court."
Even we assume that the writ was filed to implement the order passed by Special Officer (Building), which was confirmed by the Building Tribunal and subsequently High Court did not interfere it in exercising power under Article 227 of the Constitution of India, still then on that premises the writ application is maintainable. In the case Commissioner, Karnataka Housing Board - vs- C. Muddaiah reported in (2007) 7 SCC 689, the Apex Court considered the particular question about maintainability of the writ for enforcement of direction passed in earlier writ application. In that case, a contempt application was moved seeking necessary direction unsuccessfully and after dismissal of the contempt application, the writ application was moved seeking execution of that order and the Apex Court answered the question by holding, inter alia, that fresh writ application was maintainable even after dismissal of the contempt application seeking implementation of that order. Now, the question whether any order passed in exercising the jurisdiction under Article 227 of the Constitution of India could be considered as a jurisdiction equivalent to jurisdiction under Article 226 of the Constitution. On comparative analysis of Articles 226 and 227 of the Constitution of India, it appears that the power under Article 227 of the Constitution of India is inclusive of the power of judicial review with a rider that such judicial review is maintainable when any order of Court or Tribunal would be assailed. But under the jurisdiction of Article 226 of the Constitution of India, any order passed or any inaction to perform statutory duty by any authority under Article 12 of the Constitution of India as well as other authorities which some time inclusive of order passed by different tribunals, is assailable under the anvil of judicial review principle. So, jurisdiction under Articles 226 and 227 of the Constitution of India both are identical with reference to the judicial review is concerned, but some specific power/jurisdiction vested in the jurisdiction under Article 227 of the Constitution of India being a supervisory jurisdiction to pass appropriate order when any order of the Court or Tribunal is under challenge.
From the factual scenario it appears that the appellants despite the orders passed by different authorities, Tribunal and the High Court have been successful to enjoy the major unauthorised construction, naturally the Writ Court will assist the person aggrieved by rendering appropriate remedy. It is now a settled legal position of law that even the decree of Civil Court could be recognised by the Writ Court and an appropriate direction could be passed which may not be in the nature of execution of a decree, but would be implementation and maintaining, the honour and recognition of the decree. Reliance may be placed to the judgement passed in case State of West Bengal -vs- Kamala Prasad & Ors. reported in (2010) 4 SCC 568. In that case there is a declaration by Civil Court against Calcutta University in favour of plaintiffs declaring their service status as Class - III employees (Laboratory Assistant) and payment of privileges attached to the post. Decree placed in execution. Miscellaneous case filed in execution, taking point of executability of decree. The executing court allowed the application by holding, inter alia, that private employment action cannot be questioned in Civil Court having regard to Section 34 of the Specific Relief Act, 1963 read with Section 9 of the Code of Civil Procedure. The revision application against that failed. Appellants did not challenge the decree in appeal but filed another title suit assailing the decree which was dismissed. Thereafter the plaintiffs of the suit filed writ application under Article 226 of the Constitution of India and High Court allowed such application by holding that the decree should be honoured by recognising the decree. The Apex Court confirmed the view passed in a case Jharia -vs- State of Rajasthan reported in (1983) 4 SCC 7.
Considering the aforesaid legal position and the factual premises of this case, we are of the view that the writ application was maintainable on the plea as made in the writ application.
So far as the submission made by learned Advocate, Mr. Chatterjee about their relief for regularisation of the structure, we are of the view that this argument is not legally sustainable. Under the statutory provision of Section 400 (1) of K.M.C. Act word "may" has been used which authorise/empower the Municipal Commissioner, a discretionary power, to allow retention of some unauthorised structures which are not affecting building rules and regulations or which are not major unauthorised structure but only a small deviation. The Apex Court also has allowed retention of unauthorised structure when such construction is permissible within the building rules and regulations. The order allowing retention exercising discretionary power was available at the stage before the Special Officer (Building) when the case was pending for final decision. But once the demolition order is passed, which is suggestive of that, the authority did not exercise their power of discretion to allow retention of unauthorised structure, having regard to the legal position. The appellants thrashed this point about regularisation before the Building Tribunal and thereafter in the High Court unsuccessfully which is already discussed. The Municipal Building Tribunal, the Special Officer (Building) and the High Court in different proceeding respectively, held that it was major construction on breach of building rules and regulations. Hence, the scope of retaining unauthorised structure and scope of application of discretionary power to that effect by the Municipal Corporation has already been exhausted. Once the demolition order was passed under Section 400 (2) of said Act, there is no other statutory provision under the four corners of the Kolkata Municipal Act, 1980 vesting power to the Municipal Commissioner to allow retention/regularisation of major unauthorised construction, which have already suffered order of demolition passed by the competent authority. Hence, the argument of Mr. Chatterjee cannot be considered in view of absence of any provision in the statute.
So far as construction of unauthorised structure on breach of building rules and regulations, Court of Law has not taken it leniently. It appears from the different judgements of the Apex Court including the judgement of the High Court that unauthorised construction should be demolished and by garb of exercising the discretionary power due to word "may" in Section 400 (1), Municipal Commissioner is not authorised to allow retention of unauthorised construction which is on breach of building rules and regulations. Considering the seriousness of the issue, the Apex Court dealt with the matter by holding, inter alia, that stern action should be taken against such unauthorised construction and no sympathy should be shown to the persons concerned who have constructed, on breach of building rules and regulations.
Relying upon the views of the Apex Court the Division Bench of this Court where one of us was the presiding Judge (Coram - Pratap Kumar Ray, J. and M.M. Sarkar, J. (as His Lordship then was)), in the case Calcutta Municipal Corporation -vs- Kedar Nath Bansal reported in 2009 (1) W.B.L.R. (Cal.) 499 held that unauthorised construction could not be regularised. This judgement also has been reported in 2008 (4) Calcutta Law Times 275. In that case 23 judgements of the Apex Court in that line was discussed including the judgement passed in the case Mahendra Babu Rao Mahadik & Ors -vs- Suhas Krishna Kantikar reported in 2005 A.I.R. S.C. Weekly 1579 wherein the Apex Court held "municipal council has no power to regularise unauthorised construction and only proper course is to demolish it".
Having regard to the aforesaid legal position, we are now dealing with the orders of the learned Trial Judge. On reading of the order it appears that the learned Trial Judge simply directed the Municipal Commissioner, the Chairman, Borough- XV and the Executive Engineer, Building Department of Kolkata Municipal Corporation being respondent nos. 3, 4 and 5 to implement the order passed by the Special Officer (Building) by taking appropriate steps by 27th November, 2010 with a rider that the respondents would be at liberty to pray for assistance from Officer-in-Charge, Metiabruz Police Station. The tenor of the order is nothing but a direction to the statutory bodies to perform their legal duty and obligation. The officers of the Corporation are bound to carry out the order of demolition and the learned Trial Judge directed accordingly.
Mr. Chakraborty, learned Advocate, appearing for the appellants had brought our attention to the decision passed in the case Muni Suvrat Swami Jain S.M.P. Sangh -vs- Arun Nathuram Gaikward reported in A.I.R. 2007 S.C. 38 to contend that the High Court cannot pass the order of demolition and, as such, the impugned judgement under appeal is not legally sustainable. On careful reading of the said report it appears that in that case there was no order of demolition passed by the statutory competent authority under the Municipal Act, but High Court passed the order of demolition. On that premises the Apex Court held and observed that High Court should not exercise power of the authority concerned under the Municipal Act. There is no doubt in the legal proposition, but in this case that judgement has no applicability in view of factual premises as already discussed.
Considering the aforesaid findings and observations, accordingly we are not interfering with the order impugned in this appeal.
Learned Advocate, Ms. Mitra, appearing for the Corporation, has submitted a letter before us issued by the Kolkata Municipal Corporation dated 15th November, 2010 to contend that tomorrow is the date fixed for demolition of the unauthorised structure. Let the letter be kept with the record.
Considering the aforesaid findings and observations, the appeal accordingly fails.
The appeal stands dismissed.
Since we have dismissed the appeal, stay application also stands dismissed accordingly.
Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) I agree.
(Harish Tandon, J.) sks.
iane with the sid Bi 26