Calcutta High Court
Husna Ara Begum & Ors vs The Kolkata Municipal Corporation & Ors on 9 June, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP 172 of 2011
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
HUSNA ARA BEGUM & ORS.
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 9th June, 2015.
Appearance:
Mr. Tapas Kumar Banerjee, Adv.
Mr. Triptimoy Talukder, Adv.
Mr. A. K. Das, Adv.
...for the petitioners.
Mr. Barin Banerjee, Adv.
Mrs. Sima Chakraborty, Adv.
Ms. Piyali Sengupta, Adv.
...for the K.M.C. The Court: The writ petitioners have challenged the order dated November 13, 2007 passed by the Building Tribunal in two appeals and the order dated November 4, 2010 passed by the Building Tribunal on an application for review. By the order dated November 13, 2007, the Building Tribunal has dismissed two appeals preferred against two orders passed by the Special Officer (Building), directing demolition of unauthorised construction at the premises concerned. By the order dated November 4, 2010, the application for review of the order dated November 13, 2007 has been rejected.
The learned Counsel appearing for the writ petitioners contends that, the Building Tribunal did not consider that the building rules, which have taken into consideration by the Special Officer (Building) in directing demolition of unauthorised 2 constructions are relaxable. He refers to the Engineer reports and submits that the demolitions sketch is still incomplete. He contends that the Corporation authorities are accepting property tax from the writ petitioners in respect of the building concerned. He contends that the construction done in deviation of the sanctioned building plan could be regularised as the building rules which are alleged to have been violated are relaxable. He, consequently, submits that the order of demolition passed by the Special Officer (Building) and affirmed by the Building Tribunal should be set aside.
The Corporation authorities are represented.
It is submitted on their behalf by referring to the affidavit used by them that the Corporation authorities have sanctioned a building plan in respect of the premises concerned. It appears that the owners of the building concerned had undertaken construction in two phases. In the first phase, when the Corporation authorities had detected deviation from the sanctioned building plan, they had initiated proceedings for demolition.
The writ petitioners had undertaken a second phase of construction and had constructed one storey over and above the first phase. The second phase is wholly unauthorised. The Corporation authorities, therefore, had taken steps with regard thereto also. Both the proceedings were disposed of by the Special Officer (Building), directing demolition of the unauthorised construction. Two appeals were preferred before the Building Tribunal. Both the appeals were dismissed by giving reasons. The review applications thereto were also rejected.
It is contended that none of the building rules are relaxable. The writ petitioners are guilty of serious violations as would appear from the orders impugned. The acceptance of property tax does not impart legitimacy to a construction which is unauthorised.3
I have heard the rival contentions of the parties and the materials made available on record.
The writ petitioners were found to be guilty of undertaking construction in deviation of the sanctioned building plan. The Special Officer, Building had initiated two demolition cases in respect of such detections or deviations from the sanctioned building plan. By an order dated May 20, 1988, the Special Officer (Building) disposed of such demolition cases by directing the writ petitioners to demolish the deviation from the sanctioned building plan.
Being aggrieved, the writ petitioners have preferred two appeals before the Building Tribunal.
Both the appeals were disposed of by judgment and order dated November 13, 2007. Before the Building Tribunal, the writ petitioners have contended that the deviations from the sanctioned building plan were minor in nature and that the same did not cause in any inconvenience to any person and that the building rules should be considered liberally and the infringement of the building rules should be relaxed and the construction regularised by way of retention.
The Building Tribunal has considered such contentions advanced on behalf of the writ petitioners. The Building Tribunal has found that the writ petitioners had taken advantage of sanctioned building plan and had erected a massive construction which was not only in deviation of the sanctioned plan, but had also encroached upon the mandatory boundary line of the corner portion and had projected constructions encroaching upon government/public land concerned.
In such circumstances, the Building Tribunal did not find any reason interfere with the directions passed by the Special Officer, Building.
No law has been placed before me to suggest that the building rules are relaxable. The question of retention does not arise in view of the fact that it has been 4 conclusively held that the Corporation authorities have no right to allow retention. Payment of property tax and its acceptance by the Corporation authorities, as rightly pointed out on behalf of the Corporation authorities, does not validate an illegal construction, not does it ratify any unauthorised construction. Payment of property tax, therefore, is of no assistance to the writ petitioners.
The Special Officer (Building) as well as the Building Tribunal on appeal have rendered a finding of fact that the construction undertaken by the writ petitioners are in deviation of the sanctioned building plan and, therefore, are required to be demolished to the extent that such deviation has happened. It has not been demonstrated before me that such finding of fact is perverse to the materials available on record.
So far as the order passed on review concerned, I find no material irregularity in the order dated November 4, 2010. Nothing has been demonstrated before me to substantiate that there exists any material irregularity in the order dated November 4, 2010.
In such circumstances, I find no merit in WP No. 172 of 2011. The parties will implement the directions issued by the Special Officer (Building) as affirmed by the Building Tribunal on appeal as expeditiously as possible.
No order as to costs.
(DEBANGSU BASAK, J.) sp2.