Calcutta High Court (Appellete Side)
Smt. Kalpana Chanda vs The Kolkata Municipal Corporation & Ors on 12 September, 2013
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
12.09.2013. W. P. No. 21201 (W) of 2013
dc.
Smt. Kalpana Chanda
versus
The Kolkata Municipal Corporation & Ors.
Mr. Subrata Mukhopadhyay,
Ms. Basabi Roy Chowdhury ... For the Petitioner.
Mr. Ashok Banerjee,
Mr. Alok Ghosh,
Mr. Biswajit Mukherjee,
Ms. Era Ghose ... For the K.M.C.
Mr. Achintya Kumar Banerjee,
Mr. Raghunath Chakraborty,
Ms. Tanusree Das ... For the Respondent Nos. 6 & 7.
The petitioner obtained a building plan sanctioned by the Municipal authority of Kolkata Municipal Corporation for constructing a G+3 storied building at premises No. 89M, Prince Golam Hussain Shah Road, Kolkata. Structural construction upto G+2 on the southern part of the said building has been completed. Structural construction on the northern part of the said premises upto G+3 has also been completed. Even the constructed part is not complete in all respect.
Construction of the said building was stalled by the Municipal authority repeatedly from time to time by issuance of notices under Section 401 of Kolkata Municipal Corporation Act. First of such notices under Section 401 of the said Act was issued by the Municipal authority on 1st October, 2011. Subsequently after considering the representation submitted 2 by the petitioner, the Municipal authority withdrew the said notice to stop work on 22nd August, 2012. After withdrawal of the said notice, the petitioner further commenced the constructional work in the said building. However, such constructional work was again stopped by the Municipal authority by issuance of another undated notice under Section 401 of Kolkata Municipal Corporation Act.
The legality of the said notice was challenged before this Court by filing a writ petition being W.P. 21095(W) of 2012 which was disposed of by this Court on 6th December, 2012 by quashing the said notice to stop work by holding that the said notice was not issued in usual course of business. This Court further observed that the said notice was issued by total non- application of mind. Thus, the petitioner was again permitted to raise further construction in the said premises as per the building plan.
It is interesting to note here that up to this stage of controversy between the parties, the particulars of the deviation alleged to have been made by the petitioner in the said premises were neither mentioned in those notices under Section 401 of the said Act nor such deviation was pointed out to the petitioner.
It is only when the structural construction of the said premises up to G+2 on the southern side and G+3 on the northern side of the said building was completed by the petitioner, another notice under Section 401 of Kolkata Municipal Corporation Act was issued by the Municipal authority asking her to stop all constructional works in the 3 said premises. The reason for issuance of such notice was mentioned in the said notice for the first time. It was mentioned therein that the said notice was issued as construction is being carried on in deviation of the sanctioned or approved plan. The particulars of the deviation which were found in the said construction were mentioned in the infringement statement prepared by the Municipal authority on 3rd January, 2013 wherein the following infringements of Building Rules were mentioned :
"1. The height of the Ground floor has been reduced by 300 mm.
2. Level of Car Parking/Ground floor level has been raised by 300 mm.
3. At present the Eastern side boundary wall is missing at the Jheel Side (Eastern Side)."
Since the petitioner contended that she constructed the said building in accordance with the sanctioned plan and disputed the correctness of the infringement statement prepared by the Municipal authority, this Court felt the necessity of verifying the correctness of such infringement statement prepared by the Municipal authority through an expert. Accordingly, this Court appointed a Chartered Engineer as Special Officer who was directed to inspect the said premises upon notice to the parties for ascertaining (i) as to whether any unauthorised construction was made by the petitioner in deviation of the building sanctioned plan and (ii) if any deviation is found then to ascertain as to whether such deviated part can be retained as per the Building Rules or not.
4The Special Officer inspected the said premises in the presence of the representatives of the parties and he submitted his report before this Court.
An exception to the said report was taken by the Municipal authority by filing affidavit to the said report by disputing the correctness of the findings and observations of the Special Officer mentioned in his said report.
Be that as it may, even without discussing the details of such report and the exception taken by the Municipal authority to the said report, this Court finds that even the Special Officer substantially approved the infringement statement prepared by the Municipal authority. Thus this Court holds that the infringement statement cannot be ignored altogether at this stage. The Special Officer, however, opined that the deviation is negligible one and as such, such deviation can be condoned within the frame of the Building Rules.
Be that as it may, even without giving much importance to the opinion of the Special Officer as to the retainability of such deviated part as per the Building Rules, this Court has no hesitation to hold that the Municipal authority cannot be held to be absolutely unjustified in issuing the impugned notice to stop work under Section 401 of Kolkata Municipal Corporation Act for the aforesaid reason.
Mr. Mukhopadhyay, learned advocate appearing for the petitioner submits that the deviation is so negligible, it can be ignored by the Municipal authority.
5Such contention of Mr. Mukhopadhyay cannot be taken into consideration by this Court at this stage as the Municipal authority has not yet taken any decision on the question of retainability of such deviated portion which can only be taken in a proceeding under Section 400(1) of the said Act which is yet to be initiated by the Municipal authority.
As such, this Court holds that the impugned notice under Section 401 of Kolkata Municipal Corporation Act cannot be quashed at this stage.
The Municipal authority is thus directed to take the ultimate decision as to whether the concerned authority will initiate any proceeding under Section 400(1) of Kolkata Municipal Corporation Act in respect of such alleged unauthorised construction as mentioned in the infringement statement prepared by the Municipal authority and in the event, the Municipal authority decides to initiate such a proceeding under Section 400(1) of the said Act, the said authority will have to initiate such proceeding positively within a period of three weeks from date and in case such proceeding is initiated, the concerned authority will also have to conclude such proceeding by passing a reasoned order after giving a reasonable opportunity of hearing to the petitioner positively within a period of eight weeks from the date of initiation of such proceeding.
The Municipal authority is also directed to intimate its ultimate decision to the petitioner within two weeks thereafter.
6It is made clear that in the event, the proceeding under Section 400(1) of Kolkata Municipal Corporation Act is not initiated by the Municipal authority within the time limit which is fixed above, the notice to stop work issued under Section 401 of Kolkata Municipal Corporation Act will automatically stand lifted and the petitioner will be permitted to raise remaining construction as per the sanctioned plan and the question regarding legality of the construction up to the present stage, cannot be reopened by the Municipal authority subsequently.
It is also made clear that while disposing of this writ petition, this Court has not considered the correctness of the infringement statement prepared by the Municipal authority. As such, all points including the challenge with regard to the correctness of the infringement statement made by the Municipal authority are left open to be decided by the Municipal authority at the time of hearing of the proceeding under Section 400(1) of Kolkata Municipal Corporation Act.
Before parting with, this Court keeps it on record that though certain allegations were made by the petitioner against the respondent no.7 in paragraph Nos. 4, 8 and 9 of the writ petition and the same were denied by the said respondent no.7 in his affidavit, but this Court has kept those controversies beyond the consideration of this Court at this stage, as this Court feels that such controversy has no relevance on matter in dispute in this writ petition.
It is also mentioned here that the contention of the Municipal authority as mentioned in paragraph No.12 of its 7 affidavit-in-opposition about the cancellation of the mutation of the petitioner's name as owner of the said property which again was denied by the petitioner in her affidavit-in-reply, has nothing to do with the present cause of action of this writ petition and as such, the correctness and/or legality of such cancellation of the petitioner's mutation has not been examined by this Court while disposing of this writ petition.
The writ petition is, thus, disposed of with the above observations.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.)