Calcutta High Court
Sandip Pyne vs Kolkata Municipality Corporation & Ors on 17 February, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP 1083/2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SANDIP PYNE
Versus
KOLKATA MUNICIPALITY CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 17th February, 2015.
Ms. A. Sinha, Advocate for the petitioner.
Mr. P.K. Dutta, Sr. Advocate, with
Mr. G.C. Das, Advocate, Mr. D. Mondal, Advocate and
Ms. M. Nath, Advocate, for the KMC.
Mr. A. Mondal, Advocate, for the State.
Mr. A. Banerjee, Advocate with
Mr. J. Banerjee, Advocate, for the private respondent.
The Court : The writ petitioner seeks remedial measures with regard to illegal and unauthorised construction at premises no.26D, Devendra Mullick Street, Kolkata-700073.
The writ petitioner had complained about illegal construction at the said premises. Since the authorities were not taking any steps with regard to that aspect, the present writ petition had been filed.
On the writ petition being moved, by an order dated November 27, 2014, this Hon'ble Court directed no further construction to be made on the fourth and fifth floors of premises no.26D, Devendra Mullick Street, Kolkata- 700073 until further orders. The Municipal Authorities were required to file a 2 short report. The learned counsel for the Kolkata Municipal Corporation was requested to seek suitable instruction in the matter regarding illegal construction after inspection of the said premises by the officers of the Corporation.
The writ petition was taken up for hearing on December 10, 2014. None appeared for the private respondent in spite of service. By the order dated December 10, 2014, this Hon'ble Court directed the Officer in Charge, Bowbazar Police Station to ensure that no construction takes place at the premises no.26D, Devendra Mullick Street, Kolkata-700073. The Kolkata Municipal Corporation was directed to take steps in accordance with law for demolition of the illegal construction and to ensure that no illegal construction takes place at the said premises. The writ petition was directed to be listed on December 23, 2014 to receive the compliance report from the Kolkata Municipal Corporation and the police.
By the order dated January 27, 2015, I had allowed the parties appearing before me to use affidavits.
The respondents nos.1 to 4 have used an affidavit. No affidavit has been used by the private respondents. The writ petitioner has used an affidavit in reply.
Learned counsel for the writ petitioner points out the relevant paragraphs of the affidavit in opposition affirmed on behalf of the respondents nos.1 to 4. She submits that the Corporation authorities have found illegal constructions at the premises concerned. The Corporation authorities have also initiated proceedings under section 400 of the Kolkata Municipal Corporation Act, 1980 as would appear from the report of the Kolkata Municipal Corporation. She submits that the illegal constructions at the premises concerned should be directed to be demolished expeditiously.
On behalf of the Municipal authorities, it is submitted that the Municipal authorities have acted in terms of the orders dated November 27, 2014 3 and December 10, 2014. Reference has been made to a report at page 16 of the affidavit of the Corporation. Such report states that there are two sanction plans, both dated October 11, 2014. The report points out that deviating from the sanction plan, a six storeyed building was constructed in Lot C and Lot D after demolition of the existing two storeyed building. Steps were taken against such illegal constructions and two different case files were prepared and placed before the higher authority. Pursuant to the order of the higher authority, demolition programme was arranged and roofs of the fifth and sixth storeyes on Lot C portion were demolished. Further inspection on November 27, 2014 found that the parties to have commenced construction. A fresh stop work notice under section 401 of the Kolkata Municipal Corporation Act, 1980 was issued.
Learned counsel for the Corporation points out to the last report dated January 14, 2014. Such report speaks of initiation of proceedings under section 400 of the Kolkata Municipal Corporation Act, 1980 for demolition of the illegal constructions.
Learned counsel for the Corporation also refers to the averments made in the affidavit and submits that the Kolkata Municipal Corporation had initiated proceedings under section 400 of the Kolkata Municipal Corporation Act, 1980 and that they are taking necessary steps in accordance with law for demolition of the illegal and unauthorised constructions.
The private respondents are represented. In spite of directions to file an affidavit, no affidavit in opposition has been used by the private respondents. A prayer has been made for extension of time to use an affidavit against the affidavit filed by the Corporation. I am afraid the private respondents did not avail of the opportunity to use an affidavit. The private respondents also did not utilise the right to seek a copy of the affidavit of the Corporation from the Advocate on Record of the Corporation. The writ petition has appeared for final hearing. At this stage, with such glaring 4 illegalities being brought on record and that too committed at the behest of the private respondents, it would not be proper to allow further extension of time.
Learned counsel for the private respondent submits that proper steps under section 400 of the Kolkata Municipal Corporation Act, 1980 have not been initiated. The private respondents have not been given notice under section 400(1) of the Kolkata Municipal Corporation Act, 1980. Reference is made to AIR 2007 SC 38 (Munni Suvrat Swami Jain SMP Sangh -vs- Arun Nathuram Gaekwad & Ors) for the proposition that the power to order demolition is vested with the Commissioner of the Kolkata Municipal Corporation. A writ court exercising jurisdiction under Article 226 of the Constitution of India ought not to pass a writ of Mandamus directing demolition.
I have considered the rival contentions of the parties and the materials made available on record.
The writ petitioner complains of illegal constructions at premises no.26D, Devendra Mallick Street, Kolkata-700073. In spite of opportunity being granted, the private respondent has not used an affidavit. The private respondent has not placed on record any sanction plan relating to premises no.26D, Devendra Mallick Street, Kolkata-700073. I find from the affidavit of the respondents nos.1 to 4, namely the Kolkata Municipal Corporation authorities, and its annexures, that there are two sanctioned plans, both dated October 11, 2012, sanctioning plans for reconstruction of roof of ground floor, roof of first floor on an existing two storeyed building. The Municipal authorities go on to state, both in their report as well as in their affidavit that, deviating from such sanction plans, a six storeyed building was constructed after demolition of the existing two storeyed building. The Municipal authorities had taken steps against such constructions. The Municipal authorities had arranged for demolition of the roofs on the sixth and the fifth storeyes of Lot C portion. Thereafter on inspection being caused on November 27, 2014, the Municipal authorities found the private respondent to have 5 commenced constructions on the portion which was demolished by the Corporation earlier. The Municipal authorities had to issue a stop work notice under section 401 of the Kolkata Municipal Corporation Act, 1980.
The report of the Municipal Corporation being Annexure P-2 to the affidavit of the respondents nos.1 to 4 states that there are few lots in the premises no.26D, Devendra Mullick Street, Kolkata-700073. In respect of Lots C and D of such premises, there was a sanction plan dated October 11, 2012 as noted herein. The private respondents have violated such sanction plan and has caused illegal constructions in both Lots C and D. The private respondent having made illegal construction on Lots C and D and in fact having commenced reconstruction in respect of a partial demolition by the Corporation authorities, in the fitness of things, the illegal constructions carried out by the private respondent in the two lots at the said premises is required to be demolished.
The complaint of the writ petitioner has to be looked into from the angle of the illegal constructions carried out by the private respondent with impunity. The private respondents have disclosed a history of violating every conceivable rule of the Corporation with regard to construction. The private respondents have demonstrated scant regard for the Municipal Laws and the Building Rules. The private respondents chose to commence reconstruction in respect of the partial demolition.
When the writ petition was moved, by the order dated November 27, 2014, this Hon'ble Court had directed that no further construction should be made on the 4th and 5th floors of the premises until further orders. The learned counsel of Kolkata Municipal Corporation was requested to seek suitable instruction regarding illegal constructions after inspection of the premises by their officers. The Municipal authorities were requested to file a short report on the returnable date.
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By the order dated December 10, 2014, this Hon'ble Court considered the submission by the learned counsel for the Kolkata Municipal Corporation. This Hon'ble Court, considering that the fourth and fifth floors were demolished by the Kolkata Municipal Corporation and that after such demolition the private respondents had resumed making construction of these floors, the Commissioner of Kolkata Municipal Corporation and the Officer in Charge of Bowbazar Police Station were directed to ensure that no construction took place at the concerned premises. The Kolkata Municipal Corporation was directed to take steps in accordance with law for demolition of illegal constructions to ensure that no illegal constructions took place at the said premises.
It is submitted on behalf of the private respondent that the appeal carried by the private respondent against the order dated December 10, 2014 is pending adjudication. It has been submitted that no stay of such order has been passed by the Appeal Court till dated.
The contention on behalf of the private respondent that proceedings under section 400 have not been taken in respect of illegal constructions is without any basis. The affidavit of the Kolkata Municipal Corporation categorically states that steps under section 400 of the Kolkata Municipal Corporation Act, 1980 had been taken. In fact, the earlier orders passed by this Hon'ble Court record that the Corporation had demolished a portion of the illegal construction on the ground floor as being unauthorised. The private respondents have not placed on record any sanction plan authorising the private respondents to undertake the construction that was done. The private respondents have also not explained as to how the earlier round of demolition order and the actual demolition by the Corporation came about without a proceeding under section 400 of the Kolkata Municipal Corporation Act, 1980 being in place.
In Munni Suvrat Swami Jain (supra), the Hon'ble Supreme Court has considered the provisions of section 351 of the Bombay Municipal Corporation 7 Act, 1888. Section 351 of the Bombay Municipal Corporation Act, 1888 is as follows:
"351. Proceedings to be taken in respect of buildings or work commenced contrary to section 347- (1) If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of section 342 o4 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 354, shall
(a) by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, or who is the owner for the time being of such building or work, within seven days from the date of service of such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
Explanation- "To show sufficient cause" in this sub-section shall mean to prove that the work mentioned in the said notice is carried out in accordance with the provisions of section 337 or 342 and section 347 of the Act.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building 8 or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. In case of removal or pulling down of the building or the work by the Commissioner, the debris of such building or work together with one building material, if any, at the sight of the construction, belonging to such person, shall be seized and disposed of in the prescribed manner and after deducting from the receipts of such sale or disposal, the expenditure incurred for removal and sale of such debris and material, the surplus of the receipt shall be returned by the Commissioner, to the person concerned.
(3) No Court, shall stay the proceeding of any public notice
including notice for eviction, demolition or removal
from any land or property belonging to the State
Government or the Corporation or any other local
authority or any land which is required for any public project or civil amenities, without first giving the Commissioner a reasonable opportunity of representing in the matter."
Section 400 of the Kolkata Municipal Corporation Act, 1980 is as follows:
"400. Order of demolition and stoppage of buildings and works in certain cases and appeal.- (1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made 9 thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made.
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3).
Explanation- In this chapter, "the person at whose instance"
shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions, if any, or does it by himself.
(2) The Municipal Commissioner may make an order under sub- section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the [property tax] on lands and buildings.
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(3)Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415.
(4)Where an appeal is preferred under sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, for such period, as it may think fit:
provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-section (1), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5)Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(6)Every order made by the Municipal Banking Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-section (1) shall be final and conclusive.
(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 11 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, the 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.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of the Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
I do not find that both the two sections to be pari materia. Be that as it may, in Munni Suvrat Swami Jain (supra), the Hon'ble Supreme Court pronounced as the grievance of the appellant before it that, without issuing a notice under section 351 of the Bombay Municipal Corporation Act, 1888 and without giving an opportunity to the appellant of being heard, the structure could not be ordered to be demolished by the High Court. In such scenario, the Hon'ble supreme Court had held that the power under section 351 of the Bombay Municipal Corporation Act, 1888 had to be exercised only by the Municipal Commissioner and that it is left to the Municipal Commissioner under the provisions of section 351(2) either to order or not to order demolition of the alleged unauthorised constructions.
In the instant case, I find that the Kolkata Municipal Corporation has invoked the provisions of section 400 of the Kolkata Municipal Corporation Act, 1980. The Municipal Corporation has directed demolition of the unauthorised constructions. In fact, the Corporation authorities have attempted a demolition in the first place when in November 2014 the Corporation found that 12 in spite of such partial demolition, the private respondents have commenced reconstruction.
In such circumstances, the ratio of Munni Suvrat Swami Jain (supra) does not assist the private respondents.
The private respondents seek to convert this writ petition seeking relief with regard to illegal constructions into a writ petition for quashing proceedings under section 400 of the Kolkata Municipal Corporation Act, 1980 taken by the Corporation authorities with regard to the illegal constructions made by the private respondents by submitting that the private respondents were not issued any notice under section 400 of the Kolkata Municipal Corporation Act, 1980 and that the private respondents were allegedly not heard. These allegations have not been substantiated by the affidavit at the very least by the private respondents. There is no material on record to suggest that the Kolkata Municipal Corporation did not adhere to the provisions of section 400 of the Kolkata Municipal Corporation Act, 1980 in directing demolition and in undertaking implementation of its order of demolition, albeit partially. The records demonstrate that in spite of partial demolition being carried out, the private respondents are so resourceful as to commence reconstruction immediately thereafter.
The Kolkata Municipal Corporation having invoked section 400 of the Kolkata Municipal Corporation Act, 1980 and having ordered demolition of the illegal construction, they must complete the demolition of the illegal constructions.
In such circumstances, the writ petition is required to be allowed. The Kolkata Municipal Corporation will demolish all illegal constructions at premises no. 26D, Debendra Mullick Street, Kolkata-700 073 within a period of four weeks from date and report compliance of the same. 13
W.P. No. 1083 of 2014 will appear four weeks hence to consider the report by the Kolkata Municipal Corporation in respect of implementation of this order.
The Kolkata Municipal Corporation is at liberty to take police assistance as required. The police authorities when approached by the Kolkata Municipal Corporation will render adequate police protection to the officials of the Kolkata Municipal Corporation to implement this order.
(DEBANGSU BASAK, J.) tk/sg