Calcutta High Court
Sumita Dutta vs The Kolkata Municipal Corporation & Ors on 8 August, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
GA No.1645 of 2019
WP No.608 of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SUMITA DUTTA
-Versus-
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE PROTIK PRAKASH BANERJEE
Date : August 8, 2019.
Appearance:
Mr. Arindam Banerjee, Adv.
Mr. Debajyoti Basu, Adv.
Mr. Subhankar Chakraborty, Adv.
Mr. Satarshi Datta, Adv.
Mr. Saptarshi Bhattacharjee, Adv.
Ms. Divya Baid, Adv.
...for the petitioner.
Mr. Ranajit Kumar Ghosal, Adv.
Ms. B. Khatun, Adv.
...for the respondent nos.5 and 6
Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. R.L. Mitra, Adv.
Ms. Priyanka Dhar, Adv.
...for the respondent no.7.
Mr. Alok Kr. Ghosh, Adv.
Mr. Swapan Kr. Debnath, Adv.
Mr. Gopal Chandra Das, Adv.
..for the KMC 2 The Court : The applicant has filed the supplementary affidavit in court today in terms of my earlier order dated July 26, 2019. The respondent no.7 has also affirmed a counter to the said supplementary affidavit whose copy was served on the applicant. The same is also filed in court today. These are kept on record.
The respondent nos.5 and 6 want to file an affidavit-in-opposition to the main application. Since no directions have been given for filing of the affidavits, the respondent nos.5 and 6 are at liberty to file the affidavit-in- opposition, if prepared, to the main application; reply thereto, if any, be filed within the time fixed. The same shall be filed in court on the next date.
The Deputy Chief Engineer (Civil) of the Kolkata Municipal Corporation has submitted a report in sealed cover. I have perused the said report. It appears therefrom that the nature of the repair work which the applicant desires to carry out at the said premises has been held to be renovation of the entire structure which, though temporary, was unauthorised and without sanction. The following paragraphs of the said report are very material:
"In the supplementary affidavit the petitioner wants extensive repairing works of structural damages in four places viz. repairing of structural damages of outer walls, inner walls including the ceiling and flooring thereof of the ceremonial hall, florist campus/store room, guest room along with washrooms, damages connected thereto at the rear portion of the temporary structure along with covering of the structure by tarpaulin sheet.
The repairing works proposed to be undertaken include repairing and replacement of plywood cover on the inner walls, beams of the 3 damages/dislodged plywood coverings on the inner walls of the structure, repairing of the damages evident on the wooden covering at the ceiling and walls on the inner part of the said structure, replacement of plywood covers, repairing of damaged/dislodged plywood, repairing and replacement of broken glass at the main gate of the hall, repairing of wooden structures thereof which have been damaged or dislodged on the outer frontal portion of the hall, repairing of chajja, Sunshade and repairing of damaged/dislodged plywood thereto, repairing of cracks evident on the wooden covering at the inner part of the structure including the structural joints thereof, repositioning of lights and jhar on the ceiling of the structure, clearance, repairing and replacement of tarpaulin cover, clearance, repairing and repositioning of damaged/dislodged tin sheds etc. The disputed structure standing at the premises in question has already been held to be unauthorized for demolition thereof by an appropriate order of the competent authority under challenge in the writ petition.
The nature of works proposed to be undertaken as repairs amounts to renovation of the entire structure. The renovation works alleged as repairing works, if allowed to be done, the structure in question shall take the shape of a new one. The volume of works proposed to be carried on, in the name of repairing works, though amounts to total renovation, come within the ambit of section 390 of the Kolkata Municipal Corporation Act 1980. But if any proposal comes for obtaining sanction and or permission in respect of any nature of works proposed to be undertaken, the same can't be dealt with and considered towards sanction thereof since the structure in question is unauthorized and further more the said structure was erected in the Grade-I heritage premises and such is not permissible under the law without prior permission.4
If the works proposed to be undertaken are considered to be necessity, the same are not feasible under the law. Even if the proposed works are liable to be sanctioned because of the absence of any impediment under the law, no such sanction can either be obtained or permitted in respect of the structure in question which was constructed without prior permission and/or sanction. Permission and/or sanction in such case, may affect the points of defense to be urged at the time of consideration of the original writ on merit."
In that view of the matter, it will be unwise to allow the renovation to continue before a decision is taken on the writ petition in respect of the order of demolition which is the subject matter of the writ petition.
Since I have treated the report to be a report of the authority as and by way of local inspection, it is true that the applicant must have a chance to file an exception to the report. However, the Deputy Chief Engineer (Civil) has acted strictly in terms of the order of the Court and, therefore, it appears that to allow the so-called repairs at this stage would amount to prejudging the writ petition. Accordingly, though I grant liberty to the petitioner to file an exception to the said report, I am not inclined to pass any order allowing the said so-called repairs at this stage. The question of passing such order shall be taken up after I have considered the exception, if a case is made out for that on records, that this is a mere repair within the meaning of Rule 3 Sub-rule (2) of the Kolkata Municipal Corporation Building Rules and not erection of a building under Section 390 as held by the said Deputy Chief Engineer (Civil).
5
Let a copy of the report be made available to the learned advocate for the petitioner so that he can have his client consider the same. The time to affirm an exception in the form of an affidavit is granted till seven days from the time that the report is made available to the learned advocate for the petitioner. A copy of the report shall also be made available to the learned advocate for the respondent nos.5 and 6 as also respondent no.7 so that they can also respond to the same, if they so wish within the same period.
The application is posted for hearing under the heading 'Motion Adjourned' on August 29, 2019.
(PROTIK PRAKASH BANERJEE, J.) bp.