Calcutta High Court
Mohanlal Mitra And Anr. vs Kolkata Municipal Corporation on 29 April, 2005
Equivalent citations: 2005(3)CHN282
JUDGMENT Soumitra Sen, J.
1. In this application the petitioner has challenged an order dated 28th November, 2001 passed by the Special Officer, Delhi and also an order dated 28th January, 2005 passed by the Municipal Building Tribunal whereby the order of the Special Officer, Building was affirmed.
2. The facts of the case in short are as follows:
The respondent No. 6 complained before the Municipal Authorities (hereinafter referred to as the KMC) that the petitioner had constructed a five storied building over the existing building without any sanction plan. It was also alleged that the foundation of the building was not strong enough to hold the load of an additional floor thereby making the entire building unsafe.
3. Pursuant to such complaint a notice under Section 400(1) was issued upon the petitioner. After hearing the parties in a proceeding initiated under Section 400(1) the Special Officer, Building after examining the matter in great details came to the conclusion that certain constructions with regard to projections and others from 1st floor to 3rd floor could be considered for retention ignoring the infringement of rules being minor in nature but the construction of the additional floor at the 4th floor level cannot be allowed to be retained as it amounts to gross violations of the Building Rules in a particular Rule 61 of the said rules.
4. It is an admitted position that the petitioner without any sanction plan had constructed the additional floor that is the 4th floor. The arguments on behalf of the petitioner were advanced on the said premise.
5. It was submitted on behalf of the petitioner that the provisions of Section 400(1) was not applicable in the facts of the case since the original building was sanctioned under the Bengal Municipal Act, 1932 and therefore the provisions of the KMC Act, 1980 would not apply. It was further submitted that in terms of Section 635(i)(g) even after enactment of the KMC Act, 1980 matters relating to unauthorized construction in some municipal areas would continue to be governed by the Bengal Municipal Act, 1932 until corresponding Building Rules are framed under the Municipal Act, 1980.
6. It was submitted that Section 635(i)(g) was deleted with effect from 20th February, 1989. Therefore, the said provision would apply as far as the petitioner was concerned.
7. It was further submitted that the unauthorized construction was in existence for almost 10 years prior to the proceedings initiated under Section 400(1) and therefore should be allowed to be retained.
8. The petitioner submits that all authorized constructions do not necessarily mean that it is to be demolished, and the KMC has discretion in the matter and it was not exercised in the correct perspective in the instant case.
9. My attention has been drawn to the agreement which was entered into between the petitioner and the respondent No. 6 whereby and whereunder the petitioner was to construct building up to 3rd floor, in order to show that the petitioner had a right to construct a 4th storied building.
10. The building plan was sanctioned on 4th February, 1987. It appears that the disputes and differences arose between the parties with regard to the construction of the said 4th floor and the right of user of the roof.
11. From the order of the Special Officer, Building it appears that there were other unauthorized constructions in the said premises. At the time when the building was sanctioned the height of the building was shown corresponding to a four-storied building.
12. It further appears that having regard to the Building Rules as applicable on the relevant date, various provisions of the Building Rules have been violated by the unauthorized constructions of the additional floor. Having regard to the height of the building certain open space is required to be kept in the front as well as at the back and side. Under Rule 61 the floor area ratio had been fixed which categorizes the maximum permissible floor area ratio of a building having a particular height. By reason of the construction of the additional floor all the provisions relating to keeping the open space as well as the floor area ratio had been grossly violated. This finding of facts was neither challenged nor could be challenged in this proceeding.
13. On behalf of the petitioner it was submitted that the area where the building is situated was initially not within the KMC area and it was covered under the Bengal Municipal Act. Therefore, after enactment of the KMC Act, 1980 and having regard to Section 635(i)(g) the provisions of Bengal Municipal Act, 1932 would still apply in the facts of the case.
14. A certified copy of the plan had been produced before me from which it appears that the plan was sanctioned in accordance with the provisions of the KMC Act, 1980.
15. In my opinion, Section 635(i)(g) does not apply in the facts and circumstances of the case. The notice under Section 400(1) was issued on 4th December, 2000 when admittedly the provisions of Section 635(i)(g) did not exist any more. The purpose of the repeal and savings contained in Section 635(i)(g) is in my opinion to bring a parity between the provisions of 1932 Act and 1980 Act till the 1980 Act was made fully operative in all the areas brought within its ambit.
16. Since the area in which the building has been constructed, has been brought within the ambit of the KMC Act, 1980 and the plan was also sanctioned under the said Act, it cannot be contended that the proceeding for unauthorized construction in respect of the said building will have to be taken under the Bengal Municipal Act, 1932, even after 1989 when admittedly Section 635(i)(g) has been deleted.
17. The delay in initiation of the proceeding under Section 400(1) in my opinion is of no consequence. In a city like Kolkata where there are millions of houses spread over a large area, it is not possible for KMC with its existing infrastructure to detect unauthorized constructions as soon as the same is constructed. But however, if its attention is drawn at any stage, then in my opinion the KMC can take appropriate steps in accordance with law. Under the KMC Act, 1980, there is no prescribed period of limitation with regard to taking action against the unauthorized constructions by the KMC.
18. I could have understood that after making the construction of the unauthorized floor, the petitioner had applied for regularization but they did not do so. They chose to remain silent expecting that their illegal action would remain undetected. This inaction on the part of the petitioner is not at all bona fide.
19. The unauthorized construction is not merely a deviation of minor nature but construction of an entire additional floor without any sanction plan. To permit such wholly unauthorized construction of an entire floor to be retained would amount to giving premium to dishonesty and it would mean that if such gross violation of Building Rules remain undetected for a long period of time, it should be allowed to be retained. This, in my opinion, should not be permitted.
20. Under the Building Rules every building is required to have a specified height having regard to the floor area ratio. If any building is allowed to be constructed in violation of such floor area ratio the whole object and purpose of framing the rules, which are statutory in nature, would be rendered infractuous. The petitioner has not made out any case that there are other buildings in the vicinity which has been allowed to be constructed in violation of the floor area ratio.
21. The contention of the petitioner that in terms of the agreement entered into between the petitioner and the respondent No. 6 they are allowed to construct the additional floor in my opinion is also of no consequence. It is an admitted position that the respondent No. 6 did not permit the petitioner to construct the additional floor. The land actually belonged to the respondent No. 6 and the petitioner is the developer. Therefore, unless the respondent No. 6 agrees to allow the petitioner to construct the additional floor, the petitioner has no right, title or interest in respect thereof and has actually constructed an additional floor not only without any sanction plan but also without any
22. The fact that the respondent No. 6 did not complain to the respondent authorities with regard to the said unauthorized construction for a long time would make no difference at all as there is no estoppel against law. By the acquiescence of the respondent No. 6 the unauthorised construction does not become authorized it continues to remain unauthorized unless sanctioned by law.
23. Another significant fact which is required to be mentioned here is that the concerned area where the building had been constructed, was brought within the ambit of the KMC Act, 1980 by a gazette notification issued on 31st of December, 1983. Therefore, when the plan was sanctioned it was already covered under the provisions of KMC Act, 1980 and the rules framed thereunder. It is nobody's case that the additional floor conforms to the Building Rules or the provisions of Bengal Municipal Act, 1932. The submission made on behalf of the petitioner would have been relevant if the building could be considered to be a lawful construction under the 1932 Act. If the building was a lawful construction under the 1932 Act then it cannot become unauthorized under the 1980 Act and the rules framed thereunder. But in the instant case it was an unauthorized construction even considering the provisions of the Bengal Municipal Act, 1932.
24. The petitioner relied upon the decision of Renubala Dutta v. Corporation of Calcutta, reported in AIR 1954 Cal. 83, in support of the proposition that there is a discretion in the matter of making an order for demolition and it is not necessary that in every case an order of demolition is to be passed. The said decision was passed while considering Section 363 of KMC Act, 1923. Under the Bengal Municipal Act the order of demolition of any building is contained in Section 330. Under Section 330 of the Bengal Municipal Act, 1932 if the Commissioner was satisfied that a building was constructed unauthorizedly then an application was required to be made before the Judicial Magistrate for an order of demolition. The provisions of KMC Act, 1980 is totally different. It is the authority specified under that Act who is required to issue the order of demolition. There is no provision contained in the KMC Act, 1980 with regard to regularization of any unauthorized construction. It is, therefore, apparent that in the matter of order of demolition the authority concerned is to exercise its discretion. Once an authority established by law exercises its discretion the Court can interfere with such exercises of discretion, only when it is found that such exercise of discretion was arbitrary or in violation of any established principles of law. From the impugned orders I do not find that the discretion has been exercised arbitrarily or wrongfully. On the contrary, if the authorities are compelled to exercise its discretion in favour of retaining the unauthorized construction, then it would embolden others to contend that their unauthorized construction should also be retained. It is true that in the matter of exercise of discretion a subjective appreciation of facts is necessary, but if there is a proper application of mind and compliance of principles of natural justice, in my opinion such exercise of discretion should not be interfered with.
25. In the case of Renubala (supra) the Court has held that when the authority finds that there has been a serious infringement of Building Rules or there has been obstruction of light and air of neighbouring premises an order of demolition should be passed. In the instant case, no case has been made out that the unauthorized construction is obstructing light and air of any neighbouring premises, but it has been clearly established that there is indeed flagrant violation of the Building Rules. Therefore, in my opinion, the exercise of discretion by the authorities in the instant case has been just and proper.
26. The Full Bench decision of Purusottam Lalji and Ors. v. Ratan Lal Agarwalla and Ors., , has been relied upon for the same proposition that even in respect of matters involving violation of an unrelaxable Building Rules the Commissioner had a discretion not to order of demolition if the violation is not of serious in nature. In the said case after examining the facts the Full Bench held that the deviation in the matter of construction was not serious in nature. But in the instant case it is found that the entire floor has been constructed unauthorizedly. It is not a case of minor deviation and/or infraction of any rule but a complete non-compliance of the rules itself.
27. The decision of Rajatha Enterprises v. S.K. Sharma and Ors., , was cited for the proposition that if deviation of a permissible floor area ratio does not endanger public safety or section of public is not inconvenience by reason of the construction the direction for demolition of upper-floor was not correct. In the case of Rajatha Enterprises (supra) the deviation of only around 742 sq. ft. Having regard to the facts and circumstances of the said case and also having regard to the fact that some area of the building was vested with the Government subsequently upon construction, the Hon'ble Supreme Court was of the view that the unauthorized area is very negligible. Moreover, there was a confusion with regard to the method of calculation of the floor area ratio. Accordingly, the unauthorized construction was allowed to be retained. But in the instant case there is no such mitigating factors. In the sanctioned plan itself it was mentioned as to the number of floors that was permitted to be constructed. Therefore, if any additional floor was to be constructed then necessary permission was required to be taken. It is not a case where after the construction has been made in accordance with the sanctioned plan an excess area is discovered. Therefore, in my opinion, the impugned orders have been passed after due consideration of all the provisions and there is no infirmity in such an order.
28. On behalf of the respondent the decision of Prativa Co-operative Housing Society Ltd. v. State of Maharashtra, , has been relied upon for the proposition an order of demolition is an administrative decision and should not be interfered with. In the said case the Supreme Court was concerned with the violation not of a minor one but of a very serious nature and having regard to the same the Hon'ble Supreme Court upheld the order of demolition. In the said case of Prativa Co-operative Housing Society (supra) the Supreme Court observed as follows :
"Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorized constructions never pays and is against interest of the society at large. The rules, regulations and by-laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow rules which are made for their own benefits."
29. The Supreme Court has also observed that there is a growing tendency of raising unlawful construction and unauthorized encroachment are increasing the country and such activities are required to be dealt with by firm hands.
30. In a recent decision of Mahendra Baburao Mahadik and Ors. v. Subhash Krishna Kanitkar and Ors., reported in AIR 2005 SCW 1579, the Hon'ble Supreme Court has held that the Municipal authority does not have any power to regularize unauthorized construction except as provided in law. In the said case the person concerned under the garb of repairs made unauthorized construction of additional floor. The said unauthorized construction was regularized by the concerned Municipal Council. The Hon'ble Supreme Court was pleased to hold that such regularization could not be made.
31. For the reasons as aforesaid I am of the opinion that this application has no merit. The same is accordingly dismissed. There will be no order as to costs.