Calcutta High Court (Appellete Side)
Sri Soumitra Sanyal & Anr vs The Municipal Commissioner on 20 March, 2008
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
C. O. No. 4002 of 2007
Sri Soumitra Sanyal & Anr.
versus
The Municipal Commissioner,
the Kolkata Municipal Corporation & Ors.
For the Petitioner : Mr. Arindam Banerjee,
Mrs. Aditi Bhattacharya.
For the Opposite : Mr. S.S. Roy,
Party No.3. Mr. Subhasish Roy,
Mr. Biplab Dey.
For the K.M.C. : Mr. Alok Ghosh.
Judgment On : 20-03-2008.
This Revisional Application under Article 227 of the Constitution of India is
directed against an Appellate Order dated 8th June, 2006 passed by the
Municipal Building Tribunal, the Kolkata Municipal Corporation in appeal no.79
of 2003 whereby the order of demolition of the unauthorized construction passed
by the Special officer, Building on 13th November, 2003 in demolition Case
No.93-D of 1997-1998 was affirmed.
The propriety of such an order is under challenge in this Revisional
Application at the instance of one of the persons who is responsible for such
unauthorized construction.
Raising of unauthorized construction at the premises is not disputed by
the person responsible. However, the person responsible prayed for
regularization of such unauthorized construction, as the extent of such
unauthorized construction, according to the petitioner, is neither massive nor
extensive.
The unauthorized construction which is complained of in the precis
prepared by the Municipal Authority in connection with the said demolition
proceeding, are as follows :-
"Erection of partition wall at car parking space and partially converted to
residential unit. At floor access to roof has been blocked by providing door.
Completion certificate not yet obtained. All the tenements are occupied by
owners and residential units at car parking space are lock and key."
Violation of Rule 68, Rule 109 and Rule 110 of the Kolkata Municipal
Corporation Building Rules have been complained of in the said précis.
Violation of Rule 68 :-
Sanctioned car parking - 3 (three) nos.
Sub-divided car parking spaces are inadequate.
So, provided car parking - nil.
Shortfall - 3 (three) nos.
Violation of Rule 109 :-
Structural stability is unknown.
Violation of Rule 110 :-
Quality of materials used and workmanship is totally unknown.
These are the violations for which the aforesaid demolition proceeding was
initiated by the Municipal Authority.
Initially an order of partial demolition was passed by the Special Officer,
Building on 29th January, 1999. The said order of partial demolition was
subsequently set aside in appeal on 30th March, 2000. The said demolition
proceeding was sent back on remand to the concerned authority for fresh
consideration. While sending the said demolition case to the concerned authority
for its consideration, the Appellate Tribunal directed for (1) fresh service of
hearing notice upon all the parties and (2) to amend the précis and thereafter to
hear and dispose of the same.
Pursuant to the said direction, passed by the Appellate Tribunal the
original demolition précis was amended and the precis which was prepared after
such amendment, was served upon the parties concerned. Text of the amended
precis was set out hereinabove.
A demolition sketch map was also prepared in connection with the said
proceeding. The correctness of the précis and the demolition sketch map was not
challenged by the petitioner before the Hearing Officer. In fact, the person
responsible wanted to retain the said unauthorized construction and, as such, he
prayed for regularization of such unauthorized construction by way of
compounding the same. The Special Officer, Building ultimately held that the
illegal constructions are of such nature which cannot be allowed to be retained
and, as such, the persons responsible were directed to demolish the impugned
unauthorized construction at their own costs and risk within 15 days from the
date of communication of the said order; in default, the KMC Authority will
demolish the same at the cost and risk of the persons responsible.
Being aggrieved by and dissatisfied with the said order, the petitioner
herein preferred an appeal being B.T. Appeal No.79 of 2003 before the Municipal
Building Tribunal, the Kolkata Municipal Corporation. The said appeal was
ultimately dismissed on contest on 8th June, 2006. The order of demolition
passed by the Special officer, Building on 13th November 2003 was affirmed in
the said appeal.
Challenging the propriety of the said order of the learned Appellate
Tribunal, the instant Revisional Application was filed by the person responsible,
before this Court.
Mr. Banerjee, learned Advocate appearing for the petitioner firstly
submitted that the Special Officer, Building who passed the order of demolition,
had no right and authority to hear the demolition proceeding initiated under
Section 400(1) of the Kolkata Municipal Corporation Act, 1980 for want of proper
delegation of authority upon him as per Section 48(3)(b) of the Kolkata Municipal
Corporation Act, 1980. Mr. Banerjee further contended that though the lack of
jurisdiction of the Special officer, Building was challenged before the learned
Building Tribunal but the learned Building Tribunal did not consider the
petitioner's said objection in the said appeal.
Though I find that such objection was taken by the petitioner in his
memorandum of appeal but I cannot ascertain as to whether such ground was,
in fact, agitated before the learned Appellate Forum or not as I do not find any
discussion on the said objection in the order impugned. Even after disposal of
the said appeal, a review petition was taken out by the petitioner herein against
the impugned order passed by the learned Appellate Tribunal but even in the
said review petition, no complain was made against the Appellate Tribunal for not
considering the petitioner's said objection in the appeal.
In the aforesaid context, this Court is of firm belief that though such point
was taken by the petitioner in the memorandum of appeal but, in fact, the
petitioner did not agitate the same in the appeal. Thus, this Court has no
hesitation to hold that the petitioner, in fact, abandoned the said challenge before
the Appellate Forum. The petitioner, after abandoning the said objection in
course of the hearing of the appeal, cannot agitate the same before this Court at
this stage particularly, when such objection was not taken even before the
Special Officer (B) at the first instance.
In this context, this Court cannot accept the submission of Mr. Banerjee to
the effect that the learned Tribunal committed an illegality by not dealing with
the said objection while disposing of the said appeal.
Mr. Banerjee further submitted that the extent of unauthorized
construction in the portion of the ground floor in occupation of his client is very
minor in nature and, as such, the Appellate Tribunal ought not to have
maintained the order of demolition passed by the Special Officer, Building.
Mr. Banerjee further contended that the legality of the entire alleged
unauthorized construction ought not to have been considered in the petitioner's
appeal as the petitioner is not responsible for the unauthorized construction
which was made by the other person responsible within his occupation.
This Court also does not find any substance in such submission of Mr.
Banerjee as for ascertaining as to whether the unauthorized construction in a
premises is massive and/or extensive in nature or not, the Municipal Authority is
required to consider the entire unauthorized construction in a demolition
proceeding at a time. If the unauthorized construction made by the individual
occupants in their respective allotments, is considered separately then each one
of such occupants will claim that the unauthorized construction in his
occupation is negligible extent and, such construction can be regularized by way
of compounding. To obviate such difficulty, the entire construction, in my view,
is required to be considered by the concerned authority while considering a
demolition proceeding under Section 400 of the Kolkata Municipal Corporation at
a time. Accordingly, this Court does not find any unreasonableness in the order
impugned and the order impugned cannot be held to be vitiated as the legality of
the entire unauthorized construction was considered in the appeal filed by the
petitioner before the Appellate Forum.
Mr. Banerjee further submitted that nobody will be affected by the
impugned construction as the same will not create any obstruction to the light or
ventilation of any of the adjoining flats in the said premises. Mr. Banejee, thus,
submitted that since the impugned deviation is minor in nature and further since
such deviation does not affect the right of enjoyment of the other flat owners of
the said building, demolition of the impugned construction cannot be directed.
In support of such submission of Mr. Banerjee relied upon the following decision
:-
1. Purusottam versus Ratanlal reported in AIR 1972 Calcutta page 459
(F.B.).
2. Mritunjoy versus Deputy Commissioner (B & P) Corporation Calcutta
reported in AIR 1976 Calcutta page 354.
3. M/s. Rajatha Enterprises versus S.K. Sharma reported in AIR 1989 SC
page 860.
4. Muni Suvrat Swami Jain S.M.P. Sangh versus Arun Nathuram Gaikwad
& Ors. reported in AIR 2007 SC page 38.
5. Kedar Nath Bansal versus the Municipal Commissioner the Kolkata
Municipal Corporation & Ors. (unreported decision) judgment delivered
on 3rd March, 2006 in W.P. No.2016 of 2005.
Mr. Banerjee further contended that fixing of a door on the landing of the
third floor of the said building, cannot be held to be done in violation of the
provision contained in Rule 94(4) of the concerned Building Rules. Accordingly,
Mr. Banerjee invited this Court to set aside that part of the impugned order
whereby his client was directed to remove the said gate from the third floor
landing on the staircase.
To refute such submission of Mr. Banerjee, Mr. Ghosh, learned Advocate,
appearing for the Municipal Authority cited the following decisions to support his
contention that such illegal construction which is not in conformity with the
Building Rules cannot be allowed to be retained by compounding:-
1. Pratibha Co-operative housing Society Ltd. & Anr. versus State of
Maharastra & ors. reported in AIR 1991 SC page 1453.
2. Friends Colony Development Committee versus State of Orissa
reported in 2004 Vol.VIII SCC page 733.
3. Mahendra Babu Rao Mahadik versus Subhash Krishna Kanitkar
reported in 2005 AIR SCW page 1579.
Mr. Ghosh also referred to various Rules namely Rules 67, 68, 85 and 93
of the Kolkata Municipal Corporation Building Rules, 1990 to show that the
impugned constructions are made in violation of the aforesaid building Rules
and, as such, such construction cannot be regularized. According to Mr. Ghosh
the covered garages cannot be used as garages as the extent of the total covered
area in the garages is less than the prescribed area of the garage as mentioned in
Rule 93 of the said Rules. Mr. Ghosh further pointed out that the height of such
construction is also less than the height as prescribed under Rule 85 of the said
Rules and, as such, the said covered area cannot be used for residential purpose.
Mr. Ghosh also submitted that fixation of a door on the third floor landing
of the building is violative of the provision contained in Rule 94(4) of the said
Rules as the access of the other flat owners to the terrace on the topmost storied
of the building will be obstructed by such unauthorized fixation of door.
In the aforesaid context, Mr. Ghosh submitted that the unauthorized
construction cannot be regularized.
Mr. Ghosh also submitted that sitting in this jurisdiction, this Court is only
required to examine as to whether any illegality has been committed by the
concerned authority in the decision making process or not. According to Mr.
Ghosh, it is settled principle of law that in the process of judicial review, Court
cannot consider the legality of the decision of the concerned authority. To
support such submission, Mr. Ghosh referred to the following decisions of the
Hon'ble Supreme Court :-
1. Bank of India versus T. Jogram reported in 2007 Vol.VII SCC page
236.
2. Indian Railway Construction Co. Ltd. Versus Ajoy Kumar reported
in 2003 Vol.IV SCC page 579.
Mr. Ghosh thus, contended that since there is no allegation to the effect
that the concerned authority committed any illegality in the decision making
process, no interference can be made with the order impugned in the facts of the
instant case.
Mr. Ghosh, thus, supported the judgment of the learned Tribunal.
Mr. Roy learned Senior Counsel appearing on behalf of the private
respondent supported Mr. Ghosh and practically adopted the submission made
by Mr. Ghosh.
Let me now consider as to how far the learned Tribunal was justified in passing the impugned order in the facts of the instant case.
At the outset I must mention that the scope for interference under Article 227 of the Constitution of India is very limited as has been held by the Hon'ble Supreme Court in the case of Sadhana Lodh versus National Insurance Company reported in AIR 2003 SC page 1561. It was held by the Hon'ble Apex Court in the said case that supervisory jurisdiction conferred on High Court under Article 227 of the Constitution of India is confined only to see whether an inferior Court or Tribunal has proceeded within its parameter and not to correct an error apparent on the face of record, much less of an error of law. It was further held therein that in exercising the supervisory power under Article 227 of the Constitution of India, the High Court does not act as an Appellate Court or Tribunal; as such it is not permissible for the High Court to review or reweigh the evidence of the inferior Court or Tribunal purports to have passed the order or to correct errors of law in decision.
It is rightly pointed out by Mr. Ghosh that this Court, while exercising jurisdiction under Article 227 of the Constitution of India, cannot consider the legality of the decision of the authority but can only interfere with the decision of the authority when any illegality is found in the decision making process.
Keeping in mind the aforesaid restrictions, this Court will have to consider the legality and/or correctness of the order impugned.
On perusal of the demolition sketch map this Court finds that the illegal construction was made almost covering the entire ground floor. The major portion of the open car parking space was converted into rooms, privy, pump house, garbage vat etc. Of course, the petitioner cannot be held responsible for the said unauthorized construction as those constructions were made in a portion beyond the allocation of the petitioner in the ground floor of the said premises. The petitioner is, however, responsible for converting the open car parking space on either side of the main entrance into covered car parking spaces by raising unauthorized walls in between the pillars in deviation of the sanctioned plan. It further appears from the demolition sketch may that the area of one of such car parking spaces is 3050 X 4250 and the area of the other car parking space is about 2500 X 4250.
Rule 93 of the said Rules provides that no garage shall be less than 2.5 metres X 5 metres. It is further provided therein that the minimum head room in a garage shall be 2.1 metres.
Considering the measurement as prescribed for a garage under Rule 93 of the said Rules, this Court has no hesitation to hold that those two covered spaces do not conform to the prescription as provided in said Rule relating to garage. The said covered space even cannot be used as habitable room as the height of the said covered spaces is less than the required height as prescribed in Rule 85 of the said Rules relating to a habitable room. As such, even the said unauthorized construction cannot be used as a habitable room. The petitioner, however, claims that he is utilizing the said two covered spaces as garages for keeping his car therein.
On perusal of the demolition sketch map, this Court finds that the said two covered spaces in occupation of the petitioner were described as garages in the demolition sketch map. It is nobody's case that these two garages were converted into rooms for residential use. The other portion of the garage which was converted into rooms has also been indicated in the said demolition sketch map. The petitioner is not interested in the said portion which falls within the allocation of other flat owner.
It further reveals from the demolition sketch map that the petitioner was directed to remove the red bordered walls from the garages. But fact remains that even if such walls are removed, still then the requirement of Rule 93 cannot be fulfilled as the total area of such garages will remain the same even after such demolition. If such inadequate open space can be allowed to be used as garages then what good purpose will be served by demolition of the walls. That apart, these walls were erected to secure the safety of the garages. Right of other occupants of the said premises was not affected by such construction which was made within the exclusive allotment of the petitioner.
As such, the Municipal Authority, in exercise of its discretion under Section 400 of the Kolkata Municipal Corporation Act, ought to have allowed the petitioner to retain the disputed walls raised by the petitioner to cover up his two garages situated on either side of the main entrance of the said building.
Since the said covered spaces are still used as garages, it cannot be held that the provided car parking space in the said premises is nil.
In my view the decisions cited by Mr. Ghosh cannot stand in the way of exercise of discretion by the Municipal Authority in favour of retention as infringement of the Building Rule can be compounded by taking note of the extent of unauthorized construction made by the petitioner within his own allotment. The principles laid down in those cases cannot apply in the facts of the instant case so far as the petitioner is concerned, inasmuch as those principles were laid down in those cases where the extent of construction was not only extensive and massive but also such construction was made by the promoter, without any sanctioned plan and with profit earning motive.
That apart, inadequacy of the space available in the garage cannot be a ground of demolition in the instant case as violation of Rule 93 has not been complained of in the demolition precis prepared in this case. Even violation of the provision contained in Rule 85 of the Building Rules has also not been complained of, in the demolition precis. But both the Special Officer (B) and the Tribunal banked upon the violation of Rule 85 and Rule 93 which were beyond the subject matter of consideration and such consideration ultimately led the authority and the Tribunal to come to an illegal decision. Such illegalities in the decision making process, can certainly be corrected by this Court, in its jurisdiction under Article 227 of the Constitution of India.
Accordingly, that part of the impugned order by which the petitioner was directed to remove the red bordered walls in the two garages on either side of the main entrance of the building, stands set aside.
It is made clear that this order will be confined to the said two garages of the petitioner only.
With regard to the other alleged violation of Rule 94(4) of the said Rules this Court, however, does not find any infringement of Rule 94(4) of the said Rules merely because of fixation of a gate on the third floor landing of the said building.
Rule 94(4) of the said Rules provides that every terrace on the topmost storey of the building shall have a common access and shall not be subdivided. It is not the claim of the opposite party that there is no common access leading to the terrace of the topmost storey of the said building. No allegation has been made to the effect that such terrace has been subdivided. If the common access to the terrace of the topmost storey of the building is provided, no one can say that Rule 94(4) has been infringed by mere fixation of a gate on the third floor landing of the said premises.
Mr. Roy, however, submits that the access of his client to the ultimate roof of the said premises is being obstructed by fixation of the said gate and such obstruction amounts to violation of Rule 94(4).
In my view, if right of access of an occupant in a premises to the ultimate roof of the premises is obstructed by any method whatsoever by the other occupant of the said premises, such dispute relating to obstruction which is really a dispute in civil nature cannot be resolved by the Municipal Authority. As such, this Court cannot conclude that Rule 94(4) has been infringed by fixation of such gate on the third floor landing of the said premises. Accordingly that part of the impugned order by which the petitioner was directed to remove the said gate, is set aside.
The Revisional Application, thus, stands allowed.
The impugned order is modified to the above extent.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )