Calcutta High Court (Appellete Side)
Partha Dey vs The Kolkata Municipal Corporation & Ors on 1 April, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
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Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W. P. No.218 (W) of 2011
Partha Dey
Vs.
The Kolkata Municipal Corporation & Ors.
For the Petitioner : Mr. Hirak Mitter,
Mr. Deb Dutta Sen,
Mr. Moloy Kumar Seal.
For the Municipality : Mr. Achinta Banerjee
Heard on: 25.03.2011, 28.03.2011 and 30.03.2011
Judgment on: 01.04.2011
INDIRA BANERJEE, J.: The main question involved in this writ application is,
whether compliance with principles of natural justice, is essential for demolition
of the three upper storeys of a building, constructed without sanction, in
violation of Section 392 of the Kolkata Municipal Corporation Act, 1980,
hereinafter referred to as "the KMC Act".
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The petitioner, who claims to be a Civil Engineer, applied
for sanction of and was sanctioned a building plan for construction
of a four storeyed building (Ground + Three) at the premises
specified in paragraph 3 of the writ petition. A copy of the
sanctioned building plan is annexed to the writ petition. According
to the petitioner, construction of the building has been complet ed
and some interior work is in progress.
In or about May, 2010, Kolkata Municipal Corporation, hereinafter
referred to as KMC, issued a notice under Section 401 of the KMC Act,
calling upon the petitioner to stop all construction, including additions
and/or alterations at the premises in question. Guards were also posted to
ensure that no further construction was carried out.
By a letter served on KMC on 24 th August, 2010, the petitioner
undertook to suspend all work, and requested the Executive Engineer of the
concerned Borough to withdraw the guards.
It is alleged that on 28th December 2010, some persons claiming
themselves to be representatives of KMC started demolishing the fifth floor
of the building, whereupon the petitioner filed this application under Article
226 of the Constitution of India. On 31 st January, 2011, this Court passed
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an interim order, restraining the respondents from proceeding with the
demolition, which has from time to time been extended.
There can be no dispute that while a building plan was sanctioned
for construction of a ground + three storeyed building, the petitioner
constructed a seven storeyed building (basement + ground + six) having a
height of about 20.30 metres.
The short question in this writ application is whether a demolition
order could have been passed, without giving the petitioner an opportunity
of hearing.
Section 392 of the 1980 Act provides that no person shall erect or
commence to erect any building or execute any of the works specified in
Section 390, except with the previous sanction of the Municipal
Commissioner and in accordance with the provisions of Chapter XXII of the
1980 Act and of the rules and regulations framed under the 1980 Act in
relation to erection of building or execution of work.
Under Section 396, the Municipal Commissioner is required to
sanction the building plan or the execution of work unless building or the
work could contravene any of the provisions of sub-section (2) or sub-
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section (3) of Section 396 or Sections 405 or 406 of the 1980 Act. Sections
405 and 406 are not attracted in this case.
Section 396(2) empowers the Municipal Commissioner to refuse
sanction of a building or a work on any one or more of the following
grounds:
i) Contravention of the provisions of the 1980 Act or any rules
and regulations framed thereunder or of any other law for the
time being in force.
ii) Notice of sanction being devoid of material particulars and/or
not in accordance with the Rules and Regulations.
iii) Want of material information.
iv) Absence of sanctioned lay out plan under Section 364, where
necessary.
v) Encroachment of Government land or land vested in KMC
vi) No access from any street.
Section 398(1) of the 1980 Act provides that where, within a period
of 60 days, or in cases falling under Clauses (b) to (m) of sub-section (1) of
Section 390, within a period of 30 days of receipt of notice, the Municipal
Commissioner does not refuse sanction for erection of a building, or erection
of any work, or upon refusal, does not communicate the refusal to the
person who has given the notice, such person may make a representation in
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writing to the Mayor. Section 398 (2) provides that where the erection of a
building or the erection of any work is sanctioned, the person who has given
the notice shall erect the building or execute the work in accordance with
such sanction and shall not contravene the provisions of the 1980 Act or
any Rules or Regulations framed thereunder or any other law in force.
Section 398 A imposes a bar to construction of building exceeding
thirteen and a half metres in height. Section 400 of the 1980 Act provides
as follows:
"400. Order of demolition and stoppage of buildings and
works in certain cases and appeal. -(1) Where the erection of
any building or the execution of any work has been commenced,
or is being carried on, or has been completed without or
contrary to the sanction referred to in section 396 or in
contravention of any of the provisions of this Act or the rules
and the regulations made thereunder, the Municipal
Commissioner may, in addition to any other action that may be
taken under this Act, make an order directing that such erection
or work shall be demolished by the person at whose instance the
erection or the work has been commenced or is being carried on
or has been completed within such period, not being less than
five days and more than fifteen days from the date on which a
copy of the order of demolition with a brief statement of the
reasons therefor has been delivered to such person, as may be
specified in the order :
Provided that no order of demolition shall be made unless
such person has been given, by means of a notice served in such
manner as the Municipal Commissioner may think fit, a
reasonable opportunity of showing cause why such order shall
not be made :
Provided further that where the erection or the execution
has not been completed, the Municipal Commissioner may by
the same order or by a separate order, whether made at the time
of the issue of the notice under the first proviso or at any other
time, direct such person to stop the erection or the execution
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until the expiry of the period within which an appeal against the
order of demolition, if made, may be preferred under sub-section
(3).
(2) The Municipal Commissioner may make an order under
sub-section (1), notwithstanding the fact that the assessment of
such building has been made for the levy of the (property tax) on
lands and buildings.
(3) Any person aggrieved by an order of the Municipal
Commissioner made under sub-section (1) may, within thirty
days from the date of the order, prefer an appeal against the
order to the Municipal Building Tribunal appointed under
section 415.
.................................................
(7) Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-section (1) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
Mr. H.K. Mitter appearing on behalf of the petitioner emphatically argued that where erection of any building had been commenced in contravention of the provisions of the 1980 Act, the Municipal Commissioner might, in addition to any other action that might be taken 7 under the said Act make an order directing that the erection shall be demolished by the person at whose insistence the erection work had commenced, but after giving him an opportunity of hearing. Mr. Mitter referred to the first proviso of Section 401(1) which restrains the Municipal Commissioner from passing an order of demolition without giving the affected person an opportunity of hearing. Mr. Mitter argued that KMC was obliged to give the petitioner an opportunity of hearing by issuing a notice to the petitioner.
Mr. Achinta Banerjee, appearing on behalf of KMC on the other hand, argued that KMC had exercised power under Section 400(8) of the 1980 Act. Section 400(8) empowers the Mayor-in-Council to cause immediate demolition if it is of the opinion that immediate action is called for. It would perhaps be pertinent to note that there are separate provisions for removal of dangerous buildings. Removal of dangerous buildings is governed by Section 411 of the 1980 Act and the various sub-sections thereunder.
If the Municipal Commissioner is of the opinion that any building or wall or anything affixed thereto is in a ruinous state or is likely to fall or is otherwise dangerous, he might cause a written notice to be served on the owner and to be put on some part of the wall or building or served on the occupier, if any, of the building requiring such owner or occupier to 8 forthwith demolish, repair or secure such wall, building or thing. Section 411 (4)(a) empowers the Municipal Commissioner to forthwith or with such notice as he thinks fit, demolish, repair or secure or cause to be demolished, repaired or secured any such wall or building or thing affixed thereto, on the report of the Chief Municipal Architect and Town Planner certifying that such demolition, repair or securing of the building, wall or thing is necessary for the safety of the public or the inmates of the building. In such case, the Municipal Commissioner might cause the inmates of the building to be summarily removed. Any action taken by the Municipal Commissioner under sub-section (4) is to be deemed to have been taken lawfully and in good faith unless the contrary is proved.
It is difficult to accept the submission of Mr. Mitter that power under Section 400(8) is subject to the satisfaction of the Mayor-in-Council of the building being dangerous and requiring immediate demolition for public safety.
Section 400(8) is in relation to construction in deviation of sanctioned plan and/or without sanctioned plan and/or otherwise in contravention of the requisite building rules.
Mr. Mitter cited the judgment of a Single Bench of this Court in Sunil Chandra Dey vs. State of West Bengal & Ors. reported in (2007) 2 9 CLJ (Cal.) 674 and the judgment of another Single Bench of this Court in Ranjit Kar vs. CMC reported in 2000 CWN 157.
In Ranjit Kar vs. Kolkata Municipal Corporation (supra) Samaresh Banerjea, J. expressly held that sub-section (1) of Section 400 does not take away the power of KMC under sub-section (8) of Section 400. His Lordship observed that sub-section (8) of Section 400 itself provided that notwithstanding anything contained in the Chapter, if the Mayor-in-Council was of the opinion that immediate action was called for in relation to a building or a work being carried on in contravention of the provisions of the KMC Act, the Mayor-in-Council might for reasons recorded in writing cause such building or work to be demolished forthwith. Banerjea, J. held that the conditions precedent for exercise of power under sub-section (8) of Section 400 was formation of requisite opinion of necessity of immediate action and recording of reasons for directing demolition.
In Ranjit Kar's case (supra) no records were produced to show that opinion under Section 400(8) had ever been formed by the Mayor-in-Council or that reasons had been recorded by the Mayor-in-Council for directing demolition.
In Sunil Chandra Dey (supra) Dipankar Dutta, J. held as follows: 10
"Exercise of power under Section 400(8) cannot be arbitrary or capricious but must satisfy the test of reasonableness. One of the reasons for which the validity of Section 400(8) was upheld by the Division Bench appears to be that since power thereunder is exercisable by the Mayor-in-Council, being the second highest body entrusted to carry out the duties of the Corporation, that itself is a safeguard. Although Courts should not normally interfere with matters relating to public safety and security since it is within the domain of the administrative authorities and they are best suited to assess the situation and handle it depending upon the peculiar needs and necessities within their personal knowledge, judicial review of such action nevertheless cannot be and is not excluded and this Court in exercising judicial review power would be competent to examine the materials placed before it for ascertaining whether the resolutions of the Mayor-in-Council are tainted with illegality, irrationality and procedural impropriety or not and in the process the trust and confidence reposed in it by the Division Bench has been honoured by it or not.
From a conspectus of the statutory provisions it seems to be clear that even for exercise of drastic powers under Section 400(8), the Corporation authorities do not enjoy unbridled and unfettered discretion but a duty is cast on them to discharge certain statutory obligations and in the process to act reasonably. The records placed before this Court have been looked into meticulously reveal that resolutions were passed by the Mayor-in-Council on items which were not included in the main agenda but on outside agenda items. There is no material in the records to establish that the relevant papers were circulated to the members of the Mayor-in-Council beforehand. Assuming arguendo that these cases called for emergent action, on the anvil of Reg. 16(3), consideration of the cases as outside agenda items without circulation of papers by itself may not be faulted. However, no order of the Mayor granting permission to place a case on the agenda of the meeting in terms of Reg. 16(3) form part of the records placed before this Court. Finding out the satisfaction recorded by the Mayor dispensing with circulation of the papers to the members of the Mayor-in-Council, in such a circumstance, obviously does not arise and consequently no reason is discernible in support of inclusion of the cases as outside agenda items for discussion without circulation of papers. This affords sufficient ground for this Court to form an opinion that the requirements of Reg. 16(3) were not adhered to in the present cases and procedural impropriety renders the decisions taken vulnerable."11
There can be no doubt that exercise of power under Section 400(8) cannot be arbitrary or capricious and must satisfy the test of reasonableness. However, the question is whether exercise of power under Section 400(8) can be said to be either arbitrary or unreasonable or capricious when two or three floors are constructed without any sanction whatsoever.
In Sunil Chandra Dey's case, six writ petitions were disposed of by a common judgment and order. In case of 5 of the writ petitions there were deviations from sanctioned plan. In case of one of the writ petitioners, the department on inspection found unauthorized construction of RCC frame structure on 3 rd and 4 th storeyed without sanction.
His Lordship meticulously quoted the agenda for the meetings of the Mayor-in-Council as also the resolutions taken therein. The resolutions in all the cases were more or less identical. One of the resolutions is extracted hereinbelow by way of illustrative example "Considering the facts as stated above, it is resolved that the unauthorized building be demolished forthwith under Section 400(8) of the KMC Act."
The drastic resolution for demolition was taken in a case where a car parking space had been converted into a commercial space. The space 12 could very well been reconverted into car parking space, without recourse to the drastic step of demolition.
In the instant case, on the face of the averments in the writ petition, the construction has been completed. Only internal work is in progress. In other words, construction of three extra storeys has been completed in flagrant disregard of Section 392 of the KMC Act, without sanction of any building plan.
In CMC vs. Abid Hossain & Anr. heard and disposed of along with CMC vs. Maulabax Jiauddin, Mayor-in-Council (Building) and Arif Ekbal vs. State of West Bengal reported in (2001) 1 CHN 4, the Division Bench held that there was no hard and fast rule that every quasi-judicial power must be exercised upon giving opportunity of hearing to the person likely to be affected, by reason of exercise of such power, unless exercise of such power would affect any civil right or liberty vested in the person to be affected by exercise of such power.
The Division Bench held that a person authorized to erect a building in accordance with sanction, who erected a building in deviation of sanction or contrary to sanction had no right to the property erected in deviation of sanction and/or contrary to sanction by Section 400(8). Under 13 Section 400(8) of the Act, directions could be issued to demolish such portion of the erection over which there was no right to property.
In Ramavtar Agarwal & Ors. vs. Corporation of Calcutta & Ors. reported in AIR 1982 Cal. 314, a Division Bench of this Court held that grant of relief under Article 226 was discretionary. Nobody could claim relief under Article 226 as a matter of right. Occupier of unauthorized structures could neither claim infringement of fundamental right to carry on business, nor any right to property unauthorizedly erected. Against the judgment and order of the Division Bench, there was an appeal. The appeal was dismissed by the Supreme Court by a judgment and order dated 20 th August, 1996 in Ramavatar Agarwal vs. Corporation of Calcutta & Ors. reported in (1999) 6 SCC 532.
In Raju Chanda & Anr. vs. State of West Bengal & Ors. reported in 2010 (3) CHN Cal. 39, cited by Mr. Banerjee, Soumitra Pal, J. held that statute does not permit regularization of unauthorized construction by acceptance of money, be it fees or penalty or fine. His Lordship disapproved the action of the Municipality in accepting Rs.21,000/- towards penalty for unauthorized construction and held that there could be no question of grant of sanction for the additional construction.
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Mr. Banerjee submitted that even though the judgment has been rendered in the context of Section 204 of the Bengal Municipal Act, 1993, the aforesaid Section is in pari materia with Section 392 of the 1980 Act.
In Priyanka Estates International Pvt. Ltd. & Ors. vs. State of Assam & Ors. reported in (2010) 2 SCC 27, the Supreme Court held that construction of building beyond approved, sanctioned plan of 5½ floors was illegal and unauthorized and dismissed the appeals upholding demolition of half of the 5 th floor, 6th floor, 7th floor and 8 th floor. The Supreme Court held as follows:
"It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanction and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.
Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed has been given to it by the builders. Rules, regulations and bye-laws are made by Corporations or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has 15 a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent."
Mr. Banerjee argued and rightly that there was no provision under the 1980 Act for regularization of construction commenced without sanction. There is no provision in the 1980 Act corresponding to 414 (11) of the old Calcutta Municipal Act, 1951 which provided that no action should be taken in respect of any erection, alteration, addition or other work executed more than 12 years before issue of notice under sub-section (1).
In the instant case, it is not in dispute that plan was sanctioned for construction of a 4 storeyed building (ground + three) of 11.50 metres. The petitioner constructed a seven storeyed building of about 20.50 metres, that is, almost double the sanctioned height in total disregard of Section 392 of the 1980 Act. Building exceeding 13.5 metres in height is impermissible in law. This Court is not inclined to interfere with the action of KMC in causing demolition of the said premises.
As observed above, there are two sets of provisions for demolition of premises. The provisions of Section 400 governs illegal and/or unauthorized constructions in disregard of the applicable building rules and/or without sanctioned building plan and/or in contravention of the building plan. Section 411 governs demolition of unsafe buildings. Legislature in its wisdom made separate provisions for demolition of 16 unauthorized building and for demolition of unsafe buildings. May be in certain rare cases, a building could be unauthorized, and also visibly unsafe, in which case, it might be open to invoke power of demolition under Section 400(8) or under Section 411(4) of the 1980 Act.
The condition precedent for exercise of power under Section 400 (8) is formation of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of the 1980 Act. The construction may forthwith be demolished for reasons to be recorded in writing. For formation of opinion of the necessity of immediate action, it is not necessary that the building should be unsafe or dilapidated.
Any construction without sanction has to be deemed unsafe as sanction is granted after examining structural safety aspects and after clearance from the fire services authorities. Section 400 contemplates action in all cases of unauthorized construction, be it unauthorized construction in contravention of the applicable building rules, be it commencement of construction without sanction of building plan or be it deviation from sanction.
Rule 26(2) of the Kolkata Municipal Corporation (Building) Rules, 2009 provides for regularization of deviations upon payment of penalty. 17
Rule 26(2) is set out hereinbelow for convenience:
"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 wiring 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 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."
Power to regularize an unauthorized construction is wholly discretionary. In any case, contravention of mandatory provisions of statute and major deviations cannot be regularized. For example, infringement of a mandatory open space required to be maintained can never be regularized. What may be regularized is an unintentional deviation, minor and/or trivial in nature.
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For exercise of the power of regularization, the authorities concerned would have to examine if the building could have been sanctioned, had the deviations been indicated in the application for sanction of the building plan. For example, where sanction of building plan is sought, showing a 10 feet wide open side space, which is in excess of 6 feet required under the applicable Rules, deviations during construction which infringe into the open space may be regularized, subject to payment of fine, provided the minimum mandatory open space required as per the Rules is maintained. In no circumstances, can construction without sanction be regularized, such construction being contrary to statute.
The writ application thus fails and the same is dismissed. Affidavits not having been called for, the factual allegations in the writ petition shall be deemed not to have been admitted.
Mr. Deb Dutta Sen, appearing on behalf of the petitioner, prays for stay of the operative part of the order. The prayer is opposed.
The prayer for stay is considered and declined.
(Indira Banerjee, J.)