Calcutta High Court
M/S. Gopeshwar Iron & Steel Works Pvt. ... vs The Kolkata Municipal Korporation & Ors on 28 February, 2024
Author: Saugata Bhattacharyya
Bench: Saugata Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO/684/2017
M/S. GOPESHWAR IRON & STEEL WORKS PVT. LTD. & ORS.
Versus
THE KOLKATA MUNICIPAL KORPORATION & ORS.
For the Petitioners : Mr. Suvasish Sengupta, Advocate.
Mr. Arnab Dutt, Advocate.
Ms. Laboni Dey,Advocate
For the KMC : Mr. Alak Kr. Ghosh, Advocate.
Mr. Gurudas Mitra, Advocate.
Mr. Debangshu Mondal, Advocate.
For the Respondent Nos.
5&6 : Mr. Arindam Banerjee, Advocate.
Ms. Arpita Saha, Advocate.
Hearing concluded on : 31st January, 2024
Judgment : 28th February, 2024
Saugata Bhattacharyya, J.:
In the writ petition, inter alia, petitioners being the owners of office spaces and car parking spaces have challenged the order dated 5th April, 2012 passed by the Deputy Chief Engineer (Building) South of Kolkata Municipal Corporation (hereinafter referred to as "KMC"). The premises in question situates at 39A, Jorapukur Square Lane, Kolkata - 700 006.
2Respondent nos. 5 and 6 had obtained sanctioned plan on 22 nd January, 2008 which is annexed to this writ petition and completed the construction and thereafter obtained completion certificate on 30th May, 2011 after completing construction of G+3 storied building in terms of the sanctioned plan. On different dates starting from 9th February, 2011 office spaces and car parking spaces were sold out by the private respondents in favour of ten petitioners by executing conveyance deeds. Some of the conveyance deeds are also a part of writ petition.
Petitioners allege that on finding car parking space at the ground floor of the building in question was being converted into office space denying the right of the petitioners to use their respective car parking spaces which was purchased by them by making new constructions at the instance of private respondent nos. 5 and 6, made representations first on 7th May, 2012 to the concerned authority of KMC and subsequently other representations were also made as indicated in paragraph 13 of the writ petition complaining of unauthorized constructions were carried out by the private respondents de hors the sanctioned plan.
In addition thereto it has also been alleged by the petitioners that in 2017 private respondents started construction on the roof of the premises in question and vide letter dated 10th October, 2017 the same was brought to the notice of the concerned authority of KMC for taking necessary steps.
It is submitted on behalf of the petitioners that KMC started demolition case no. 01-D/IV/12-13 under Section 400(1) and Section 416 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as "the said Act of 1980") but the said demolition proceeding culminated into an order dated 5th April, 2012 which is subject matter of challenge in this writ petition. In connection with unauthorized construction on the roof of the 3 building in question a stop work notice was issued on 1st December, 2015 under Section 401 of the said Act of 1980 and the same was intimated to the officer-in-charge of the local police station and an F.I.R. was lodged. It also emanates from the affidavit-in-opposition filed on behalf of KMC that in 2018 on inspection of premises in question further unauthorized construction was found for which a proceeding under Section 400 of the said Act of 1980 was initiated.
While answering queries of the Court it has been submitted on behalf of the petitioners that the order dated 5th April, 2012 was questioned by filing the present writ petition in 2017 since the impugned order was not communicated to the petitioners at the material point of time and no opportunity of hearing was given to them before taking decision dated 5 th April, 2012 as a result whereof petitioners were kept in dark which caused delay in preferring the writ petitioner questioning order dated 5th April, 2012 of KMC. It is also submitted that several representations were made by the petitioners starting from 7th May, 2012 just after the impugned order was passed by the KMC. While explaining delay petitioners have relied upon following judgments:
i) (1998) 8 SCC 685 (State of U.P. & Ors. Vs. Raj Bahadur Singh & Anr.);
ii) (2018) 2 CHN 402 (Keshaw Prasad vs. State of West Bengal & Ors.).
According to the petitioners the order of regularising unauthorized construction whereby car parking space at the ground floor of the building in question has been converted into office space in gross violation of the sanctioned plan on payment of fee is not permissible under Section 400 of the said Act of 1980 and the Commissioner or his delegatee has no jurisdiction to regularize such huge unauthorized construction on payment 4 of fees. In this regard reliance has been placed on the judgment of a coordinate Bench reported in 2014 (4) Cal LT 1 (HC) delivered in the case of Ghanashyam Das vs. The Kolkata Municipal Corporation & Ors.
It is also urged on behalf of the petitioners that at least three of them purchased office spaces and respective car parking spaces on different dates in 2011 therefore they should have been granted opportunity to make deliberation before the Deputy Chief Engineer (Building) South before passing the order of regularisation dated 5th April, 2012 since by issuing said impugned order KMC has denied the right of those petitioners to enjoy possession and use of car parking spaces which were sold out to them by private respondents by executing conveyance deeds.
It is contended that pursuant to the order dated 23rd August, 2023 the private respondents by filing an affidavit albeit disclosed that a sister concern of respondent no. 6 mortgaged the covered space at the ground floor as collateral security and obtained loan but the same cannot be termed as creation of third party interest which may act as fetter in determining the validity of the order of KMC dated 5th April, 2012 since ICICI Bank Ltd. from which loan was taken has other ways and means to recover the amount from the borrower.
Per contra it has been submitted on behalf of respondent nos. 5 and 6 that municipal commissioner or his delegatee is authorized to exercise discretion in terms of Section 400(1) of the said Act of 1980 since different interpretation was attributed with regard to the power of Municipal Magistrate under Section 363 of the Calcutta Municipal Act, 1923 and the power of Municipal Commissioner under Section 414 of the Calcutta Municipal Act, 1951 in reference to two separate judgments one reported in AIR 1956 SC 110 (Corporation of Calcutta vs. Mulchand Agarwala) of the 5 Apex Court and another reported in 1972 SCC OnLine Cal 104 (Purusottam Lalji vs. Ratan Lal Agarwalla) of this Court. According to the private respondents taking note of pari materia provisions embodied in Calcutta Municipal Act, 1923 and Calcutta Municipal Act, 1951 different views were expressed by the Apex Court and three judge Bench of this Court with regard to the power of the municipal authority in dealing with unauthorized construction. The interpretation ascribed by the coordinate Bench in Ghanashyam Das (supra) with regard to delineating power of Municipal Commissioner under Section 400 of the said Act of 1980 may not be taken into consideration by treating the judgment of Ghanashyam Das (supra) as per incuriam and as such impugned order dated 5 th April, 2012 is required to be deciphered. In other words it has been submitted on behalf of the private respondents since the Apex Court and three judge Bench of this Court attributed different interpretation to Section 363 of the Calcutta Municipal Act, 1923 and Section 414 of Calcutta Municipal Act, 1951 relating to the power of Municipal Magistrate/Municipal Commissioner and legislature on being conscious of different interpretation of the Courts enacted similar provisions under Section 400 of the said Act of 1980; the coordinate Bench in Ghanashyam Das (supra) was required to give credence to the previous interpretations of the Apex Court and three judge Bench of this Court relating to the power of Municipal Magistrate/Municipal Commissioner while dealing with unauthorized construction under Calcutta Municipal Act, 1923 and Calcutta Municipal Act, 1951. Judgment of the Apex Court reported in (2006) 8 SCC 590 (Muni Suvrat-Swamy Jain S.M.P. Sangh - vs - Arun Nathuram Gaikwad And Others) is relied upon by the private respondents to substantiate their aforementioned argument. Reliance has also been placed on judgment of a coordinate Bench reported in 1991 SCC Online Cal 61 (Land and Bricks and Entertainments Ltd. and Another Vs. State of West Bengal & Ors.) in order to buttress the case of private respondents that Municipal Commissioner or his delegatee has discretion while functioning under Section 400 of the said Act of 1980 in 6 dealing with unauthorized construction wherein the coordinate Bench took note of the judgment of the three judge Bench in Purusottam Lalji (supra).
It is also submitted on behalf of respondent nos. 5 and 6 that in view of expression "such person" as used in the first proviso to sub-Section (1) of Section 400 only private respondents being person responsible do have right of audience before the Municipal Commissioner or his delegatee while deciding the fate of the construction in terms of Section 400(1) of the said Act of 1980. According to the private respondents, petitioners do not have right of audience before the commissioner or his delegatee therefore there was no laches on the part of the KMC while passing the impugned order dated 5th April, 2012 without offering opportunity of being heard to the petitioners. In this regard reliance has been placed on the judgment reported in 2006 (2) CLJ Cal 574 (Sanjay Mehta & Ors. Vs. The Kolkata Municipal Corporation and Ors.).
Another ground of defence which has been put up on behalf of the private respondents is delay caused by the petitioners in approaching the Court with the present writ petition, the order was passed by the concerned authority of KMC on 5th April, 2012 whereas writ petition was filed after five years in 2017. According to the private respondents their sister concern mortgaged the covered space at the ground floor to ICICI Bank Ltd. as collateral security therefore at this belated stage the writ petition may not be entertained which would prejudicially affect the right of the private respondents. On the point of delay and laches as urged on behalf of the private respondents following judgments have been relied upon;
i) (2013) 12 SCC 179 (State of Uttaranchal and Another vs. Shiv Charan Singh Bhandari and Ors.) paragraphs 23 and 24,
ii) (2022) SCC OnLine SC 249 (Surjeet Singh Sahni vs. State of U.P. and Others) paragraphs 4 and 5.
7Lastly it has been argued on behalf of the private respondents that there is an appeal provision under Section 400(3) of the said Act of 1980 against the order passed under Section 400(1). In the present case petitioners ought to have availed of alternative remedy available under Section 400(3) in order to question the impugned order dated 5th April, 2012. According to the private respondents due to availability of efficacious speedy alternative remedy in terms of Section 400(3) the present writ petition is not maintainable.
KMC is represented by learned advocate who adopts the submission made on behalf of the private respondents. It has also been submitted that the writ petition suffers from delay and laches and in this regard reliance has been placed on the judgment of the Apex Court reported in AIR 1961 SC 1506 (A.V. Venkateswaran, Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani and Another).
On reading of impugned order dated 5th April, 2012 which is at page 277 of the writ petition it transpires that the construction at the ground floor of the building in question by which covered car parking space has been converted into office space is unauthorized one as it has been admitted on behalf of the private respondents before the concerned authority of KMC in connection with the demolition case no. 01-D/IV/12-13. By the said order the concerned authority of KMC permitted the private respondents to retain unauthorized construction upon payment of retention fee, question arises for consideration whether the Municipal Commissioner or his delegatee possesses authority to regularize unauthorized construction on acceptance of retention fee. In view of the judgment of the coordinate Bench in Ghanashyam Das (supra) the issue is no more res integra, it has been unequivocally decided by the coordinate Bench in paragraph 22 which is quoted below:
8"22. Therefore, as I find that the concept of post facto sanction or regularization is alien to the provisions of the 1980 KMC Act, any "building" or a "part" of it erected without sanction of Municipal Commissioner is illegal. Hence, as the language in sections 392 and 393 is clear and explicit, regularizing an unauthorized construction even on payment of fees or fine or penalty, as contended, is contrary to 1980 KMC Act. Thus, in view of the mandate in sections 392 and 393, any Rule or notification or order or circular or budgetary provision issued or made by the Corporation which speaks of post facto sanction or regularization of a "building" or a "part of a building" erected without sanction, even on payment of an amount, be it called charges or fees or penalty or fine, is not warranted in law and void and, therefore, illegal and cannot be acted upon.
Accordingly the Circular No. 37 of 2010-2011 permitting regularization of unauthorised construction, relied on by the KMC authorities while adjudicating some of the matters, is patently de hors the provisions of law and is thus set aside and quashed."
In the present case too circular no. 37 of 2010-11 has been relied upon in order to regularize unauthorized construction at the premises in question but the said circular was found to be patently de hors the provisions of law and the same was set-aside by the coordinate Bench in Ghanashyam Das (supra). It is true that the Appellate Court had the occasion to consider judgment of the coordinate Bench in Ghanashyam Das (supra) but the law laid down therein was not interfered with by the Appellate Court while deciding group of intra-court appeals first one being 9 APO 434 of 2014 (ESKAG Sanjeevani Pvt. Ltd. & Anr. Vs. Kolkata Municipal Corporation & Ors.). It has been specifically recorded in the order of the Appellate Court dated 27th August, 2019 that because of extraordinary situation the issue was remanded to the Kolkata Municipal Corporation. In view of the decision of the coordinate Bench in Ghanashyam Das (supra) attained finality regularization order passed by Deputy Chief- Engineer (Building) South dated 5th April, 2012 upon applying circular no. 37 of 2010-11 cannot be countenanced since the concerned authority of KMC while deciding the issue under Section 400(1) is not authorized to use discretion whether to pass order of demolition or to save unauthorized construction in certain cases. In this regard this Court finds it apposite to consider Rule 26 of the Kolkata Municipal Corporation Building Rules, 2009 and for better understanding Rule 26 is quoted below:
"26. Deviation during execution of works.--(1) No deviation from the sanctioned plan shall be made during erection or execution of any work.
(2) Notwithstanding anything contained in sub-rule (1)--
(a) if during erection or execution of work any internal alteration within the sanctioned covered space which does not violate the provisions of the Act or these rules is intended to be made, the person referred to in sub-rule (1) of rule 4 shall inform the Municipal Commissioner by notice in writing along with a certificate from the Architect or the Licensed Building Surveyor and Structural Engineer, as the case may be, together with drawings incorporating the deviations, and structural calculation in case of structural deviations, stating the nature and purpose of such deviations, at least fifteen days prior to carrying out such erection or execution of work and 10 may thereafter proceed with the execution of such work, subject to the condition that such deviations shall be incorporated in the "Completion Plans"
under sub-rule (2) of rule 27;
(b) if during the erection or execution of the work, any external deviation beyond the sanctioned covered space is intended to be made and which does not violate the provisions of the Act or these rules, the person referred to in sub-rule (1) of rule 4, shall prior to carrying out such erection or execution of works, submit in accordance with the provisions of these rules, a revised plan incorporating the deviation intended to be carried out, for obtaining necessary sanction.
(3) If no notice is served under clause (a) of sub-rule (2), or the work of erection or execution is undertaken without the sanction referred to in clause (b) such erection or execution to work shall be deemed to be in contravention of the provisions of the Act and these rules and shall be dealt with accordingly."
It has been provided under Rule 26(1) that there shall be no deviation from the sanctioned plan during erection or execution of any work save and except the situation which has been contemplated under Rule 26 (2) Clause
(a) Clause (b). In the event of internal alteration or external deviation if, required to be made during execution of work the procedure has been delineated in Clause (a) and Clause (b) under Rule 26(2) which need to be applied for obtaining revised plan. Whereas Rule 26(3) further makes it abundantly clear that in the event there is failure to take steps in terms of Rule 26(2)(a)(b) in that event erection or execution in deviation of sanctioned 11 plan shall be deemed to be in contravention of the provisions of the Act and Rules.
In the present case sanctioned plan was accorded to make construction by the KMC in favour of private respondents on 22nd January, 2008 and the completion certificate was issued on 30th May, 2011 and during such period no steps have been taken by the private respondents in terms of relevant Building Rules for making internal or external deviation. Therefore, subsequently conversion of car parking space into office space upon alteration of user is found to be in gross violation of the statutory provisions and contrary to the sanctioned plan accorded to the private respondents. What are the extents of deviation made by the private respondents while making construction at the ground floor of the premises in question have not been stated in the order impugned. In this regard reliance is placed on a judgment of a coordinate Bench dated 4th October, 2018 reported in (2018) SCC OnLine Cal 15879 (Chittaranjan Das vs. Kolkata Municipal Corporation & Ors.). This Court finds it apt to quote paragraph 7 of the judgment below:
"7. In the present case, the Special Officer (Building) proceeded to allow retention of construction which was found to be in deviation from the sanctioned plan in all floor. The nature and extent of the deviation are not spelt out in the impugned order. To such extent, the impugned order is non-speaking. If the impugned order is unreasoned, then the same has to be considered as a nullity. The writ petition is maintainable of(sic) such ground alone."12
The judgment of the coordinate Bench in Chittaranjan Das (supra) is found to be squarely applicable in the present case while deciding the legality and validity of the impugned order dated 5th April, 2012 which is devoid of particulars of unauthorized constructions made by the private respondents. At the same time the decision in Chittaranjan Das (supra) also answers the point of maintainability of the writ petition taken on behalf of the private respondents based on Section 400(3) of the said Act of 1980 since there is an appeal provision to question an order passed under Section 400(1). In terms of paragraphs 6 and 7 of Chittaranjan Das (supra) if the impugned order is in breach of natural justice, then the same is considered as nullity; therefore writ petition is maintainable. Since in the present case the order dated 5th April, 2012 suffers from similar vices it appears that the principle embodied in Chittaranjan Das (supra) comes in aid of the petitioners and it can safely be concluded notwithstanding appeal provision contained under Section 400(3) present writ petition is maintainable.
It is submitted that petitioners being the flat owners do not have right of audience before the Deputy Chief Engineer (Building) South who passed order dated 5th April, 2012 and it is only the person responsible are to be given opportunity to appear before the authority while deciding the issue under Section 400(1). In Sanjay Mehta (supra) a coordinate Bench decided that petitioners being the tenants of the building do not have any legal right in connection with an unauthorized construction. In contradistinction to the fact situation considered by the coordinate Bench in Sanjay Mehta (supra) in the present case before the impugned order was passed on 5th April, 2012 three petitioners purchased the office space as well as car parking space and the car parking space at the ground floor was converted into office space by making unauthorized construction by the private respondents. Therefore, petitioners are not the tenants of the building in question rather they are office space and car parking space owners and they are required to be given opportunity to make deliberation before passing order dated 5th April, 2012.
13While agitating the delay caused by the petitioners in approaching this Court reliance has been placed on behalf of the private respondents on State of Uttaranchal (supra) and Surjeet Singh (supra) whereas on behalf of corporation A.V. Venkateswaran (supra) has been relied upon. In State of Uttaranchal (supra) it has been held in paragraph 29 by the Apex Court that claim of notional promotional benefits based on equality needs to be urged at the right juncture and not after expiry of two decades since it was found that granting of notional benefits to the respondents was likely to affect the State exchequer regard being had to the fixation of pay and the pension. In Surjeet Singh (supra) by filing a writ petition Clause 12 of a sale deed was sought to be implemented which in effect was found to be a claim relating to specific performance of contract and the first representation was made 10 years after the execution of sale deed as found by the Apex Court; the cause of action by that time was not alive in view of consideration that had the suit been filed for specific performance of contract then it would have been time barred if instituted after ten years. In A.V. Venkateswaran (supra) it has been held that the writ petition is not maintainable since it was found that a party by his own conduct deprives himself of the remedy available to him and as such cannot have a better right to a writ than a party who has not so deprive himself. In the present case at my hand it transpires that by applying inapplicable circular no 37 of 2010-11 an unauthorized construction has been regularized by the concerned authority of KMC since said circular no. 37 has been set-aside in Ghanashyam Das (supra). Applying the ratio of Ghanashyam Das (supra) order dated 5th April, 2012 is found to be without jurisdiction. As this Court has already held that petitioners being the owners of office spaces and car parking spaces, three of whom purchased such accommodations prior to the order passed by the concerned authority of KMC on 5th April, 2012, they ought to have been afforded opportunity of hearing prior to regularise unauthorized construction which infringes rights of the petitioners to possess and enjoy their respective car parking spaces at the ground floor. But the concerned 14 authority of the corporation has not provided opportunity of hearing to the petitioners and after the impugned order was passed on 5th April, 2012 same was not contemporaneously communicated to them. Therefore fact situation is completely different so far as present case is concerned in comparison to the facts which were considered by the Apex Court in A.V. Venkateswaran (supra).
Now, it is well settled that ordinarily the writ Court being the Court of equity does not entertain a belated writ petition unless delay has been explained to the satisfaction of the Court but the same is not an inflexible Rule of Law. While discussing the reasons for not entertaining a writ petition on the ground of delay upon placing reliance on two judgments of the Apex Court reported in (1974) 1 SCC 317 (Ramchandra Shankar Deodhar & Ors. vs. State of Maharashtra & Ors.) and (1984) 4 SCC 329 (G.P. Doval vs. Chief Secy. Government of U.P.) it has been held by the Hon'ble Division Bench in a judgment reported in Keshaw Prasad (supra) the rule which says that the Court may not enquire into belated and stale claims is not a Rule of Law but a Rule of practice based on sound and proper exercises of discretion and there is no rigid Rule that whenever there is delay the Court must necessarily refuse to entertain writ petition. Maintainability of writ petition in spite of not approaching the Court promptly and just after accrual of cause of action needs to be assessed on case to case basis. In the present case petitioners being the office space and car space owners were not granted opportunity to present their case and by impugned order dated 5 th April, 2012 their right to enjoy the possession of car parking space has been denied without granting them opportunity to make deliberation before the concerned authority of KMC, after the order was passed on 5th April, 2012 the same was not communicated contemporaneously. Petitioners have approached this Court in 2017 but on the point of delay if this Court refuses to entertain the writ petition an illegal order of regularisation of unauthorized construction in violation of the relevant statutory provisions read with the law laid down in Ghanashyam Das (supra) shall be permitted 15 to be retained on record and the perpetrators of making unauthorized construction in violation of the sanctioned plan in effect would be permitted to derive benefits from such gross illegalities.
The contention of the private respondents is that ratio of Ghyanashaym Das (supra) is not binding upon this Court since different interpretations were attributed by the Apex Court and three judge Bench in consideration of similar provisions as contained in Section 363 of the Calcutta Municipal Act, 1923 and Section 414 of the Calcutta Municipal Act, 1951 in Mulchand (supra) and Purusottom Lalji (supra). Notwithstanding the law laid down by the coordinate Bench in Ghanashyam Das (supra) in the context of Section 400 of the said Act of 1980, in Mulchand (supra) the Apex Court decided the issue in consideration of the facts that there was no complaint from the residents of the locality against unauthorized construction and the respondent had already been fined in proceedings under Section 488, an order for demolition would be to penalize the respondent twice over the same offence. It is also recorded in the said judgment that the order passed by the Municipal Magistrate which was affirmed by a Single Bench in revisional application whether is subsequently open to be further challenged upon applying Section 363 of the Calcutta Municipal Act, 1923. In Purusottom Lalji(supra) in the context of Section 414 of Calcutta Municipal Act, 1951 the Court has held the discretion can be exercised by the Municipal Commissioner in an appropriate case for the purpose of facilitating the scheme and the object of the Calcutta Municipal Act, 1951 and that discretion must be used bona fide and not on any extraneous ground. It was also held that commissioner is required to exercise discretion quasi judicially, by giving the parties opportunity to show-cause. It is recorded in the order that a Superintendent (Building) found that there was no serious infringement or violation of any Building Rule nor was there any obstruction of light or air into the adjoining premises and according to the corporation authority there was slight infraction of relevant Rules framed under Calcutta Municipal Act, 1951. Under such special circumstances Hon'ble Court 16 upheld the authority of Municipal Commissioner to exercise discretion by not passing order of demolition. It is further required to be noted herein that in Muni Suvrat-Swami Jain (supra) the Apex Court discussed the special circumstances in passing order in Mulchand (supra); nonetheless on separate fact situation and in the context of different statutory provision decided to relegate the matter to the authority concerned. In Land and Bricks and Entertainment (supra) a coordinate Bench of this Court while placing reliance on Purusottom Lalji (supra) has held that the Municipal Commissioner is authorized to exercise discretion by not passing order of demolition even in cases of irrelaxable Building Rules where violation is of minor nature or is not likely to be prejudicial or harmful or dangerous to any person or party involved. However, in paragraph 21 of the said judgment it has also been held that if a building is otherwise found to be fit for demolition in the discretion of the Municipal Commissioner it would be absolutely unjust to permit the said building to remain merely because the builder has offered to pay penal fees to the municipal authorities. In course of argument learned advocate relied upon judgment of the Apex Court reported in (1991) 4 SCC 1 (State of Punjab And Others - vs - Gurdev Singh) since principle is enunciated in paragraphs 8 and 9 that an order may have been issued not in good faith has de facto operation unless and until same is declared to be void or nullity by a competent Court. In other words an order may be "hypothetically a nullity, but court may refuse to quash it because of plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason" as defined by Prof. Wade. As this Court decides that delay and laches are no ground of refusal to entertain the payer made by the petitioners taking note of the facts of the case the argument of de-facto operation of the order issued by administrative authority which is ex facie invalid cannot be countenanced.
In consideration of the aforesaid judgments relied upon by the private respondents in support of the point urged that in the backdrop of similar 17 statutory provisions the Apex Court and High Court opined otherwise while examining the power of the Municipal Magistrate/Municipal Commissioner to exercise discretion in connection with unauthorized construction, these judgments as per submission of the private respondents are required to be taken into consideration while examining the order dated 5th April, 2012 under challenge. Ratio of Mulchand (supra) and Purusottom Lalji (supra) if considered as it has been discussed above would certainly clarify that under special circumstances discretionary power of Municipal Magistrate/Municipal Commissioner was found to be in existence but in the present case those special circumstances are not available. At the same time the order dated 5th April, 2012 needs to be deciphered in the context of Section 400 of the said Act of 1980 as well as the judgment delivered in Ghanashyam Das (supra). In paragraph 16 of Ghanashyam Das (supra) it has been held that principle of law in Purusottam Lalji (supra) wherein the Full Bench while considering the provisions under Section 414 of the Calcutta Municipal Act, 1951 held that the municipal authorities had the power to exercise discretion which is not applicable as the Municipal Commissioner has been divested of such power in view of Section 635 of the said Act of 1980 repealing the 1951 Act.
At the same time mortgaging the ground floor as collateral security to the bank by the sister concern of the private respondent to secure loan as disclosed in the affidavit can not operate as fetter to grant relief as claimed by the petitioners since the bank has other ways and means to recover dues. It has been contended that restoration of office space to car parking space as per sanctioned plan at this stage would prejudice the ownership right of the private respondent due to delay and acquiesces. Entertaining of writ petition is prejudicial to the ownership right of the private respondents does not hold much water on finding that if the private respondents are permitted to retain office space at the ground floor dehors the sanctioned plan that would permit the private respondents to derive benefits perpetually by making unauthorised constructions.
18In the case at my hand a G+3 storied building was permitted to be constructed by the concerned authority of KMC and the same was accordingly constructed. As per sanctioned plan the ground floor is required to be used for car parking space. Petitioners while purchasing office spaces also purchased car parking spaces. During course of construction no steps were taken as per Kolkata Municipal Corporation Building Rules for internal or external deviations and the building in question was complete in 2011 and completion certificate was issued on 30th May, 2011. Thereafter in 2012 car parking space at the ground floor of the said building was converted into office space in disregard to the sanctioned plan accorded by the KMC. This issue also needs to be considered from different perspective apart from unauthorized construction made by the private respondents. City of Kolkata is reeling under shortage of car parking space and the residents of the city are being compelled to keep their cars on municipal roads, lanes and by- lanes impacting movements of the vehicle as well as pedestrians. When KMC has accorded sanctioned plan with the stipulation to use the ground floor of the building in question as car parking space, same cannot be permitted to be converted into office space infringing right of the petitioners to keep their cars at the allotted space at the ground floor. If such illegal and irresponsible conduct on the part of the private respondents to convert the car parking space into office space is allowed then it would create a precedence in similar future cases and worse sufferers would be the residents of this city.
In this regard this Court is inclined to rely upon a paragraph from the judgment reported in (2013) 5 SCC 336 (Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation & Ors.) and the same is quoted below:
"2. In the last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has 19 acquired monstrous proportion. This Court has repeatedly emphasised the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions as in K. Ramadas Shenoy v. Town Municipal Council, Udipi, Virender Gaur v. State of Haryana, Pleasant Stay Hotel v. Palani Hills Conservation Council, Cantonment Board, Jabalpur v. S.N. Awasthi, Pratibha Coop. Housing Society Ltd. v. State of Maharashtra, G.N. Khajuria v. DDA, Manju Bhatia v. NDMC, M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, Friends Colony Development Committee v. State of Orissa, Shanti Sports Club v. Union of India and Priyanka Estates International (P) Ltd. v. State of Assam."
In aforesaid conspectus the impugned order dated 5th April, 2012 stands set aside and concerned authority of KMC is directed to demolish unauthorised construction at the ground floor of the building in question within six weeks from date thereby restoring the ground floor to car parking space as per sanctioned plant accorded in favour of the private respondents. Cost of demolishing unauthorised construction shall be recovered from the respondent nos. 5 and 6. Fees paid by the respondent nos. 5 and 6 to the KMC for regularising unauthorised construction as per order dated 5th February, 2012 shall be refunded to the respondent nos. 5 sand 6 within eight weeks from date.
Accordingly, the writ petition stands disposed of. There shall be no order as to cost.
20Urgent photostat certified copy of the order, if applied for, be given to the parties, upon usual undertakings.
(Saugata Bhattacharyya, J.)