Calcutta High Court (Appellete Side)
Shyamali Mallick @ Shyamal Mallick vs The Kolkata Municipal Corporation & Ors on 7 March, 2022
Author: Shampa Sarkar
Bench: Shampa Sarkar
07.03.2022
Sl. No.2
srm
W.P.A. No. 2981 of 2022
Shyamali Mallick @ Shyamal Mallick
Versus
The Kolkata Municipal Corporation & Ors.
Mr. Partha Sarathi Deb Barman,
Md. Shakir
...for the Petitioner.
Mr. Debjit Mukherjee,
Mr. Anand Firmania
...for the Kolkata Municipal Corporation.
Supplementary affidavit filed by the petitioner is
taken on record.
This writ petition has been filed challenging the order
dated February 16, 2022 passed by the Municipal Building
Tribunal, Kolkata Municipal Corporation in B.T. Appeal
No.04 of 2022. By the said order, an application for stay
dated January 10, 2022 filed by the petitioner for stay of an
order of demolition passed by the competent authority of the
Kolkata Municipal Corporation, was rejected.
The order is well reasoned. The technical member of
the learned Tribunal found that a four storeyed RCC framed
building along with brick work had been erected without
sanction from the Kolkata Municipal Corporation.
Admittedly, no sanction was granted by the Corporation.
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Hence, the building was found to be totally unauthorised
and illegal.
The petitioner has not been able to show the sanction
plan or the permission granted. Such fact is absent in the
pleadings.
It was also found that the structure was not only
unauthorised but also dangerous. Such illegalities have been
detected from the records and also from the report of the
Executive Engineer, Civil, Borough-I dated February 1, 2022.
The Corporation had issued a stop work, but it was found
that such stop work notice was defied and the construction
had continued. According to the learned Tribunal, this was a
major illegal construction and granting a stay of demolition,
in this case, would amount to passing another illegal order.
The learned Tribunal concluded that the petitioner's
attempt to defy the rules and regulations of the Kolkata
Municipal Corporation, jeopardised not only the civil
engineering aspect, but also continued to be a threat to
society. Thus, the learned Tribunal, being the appellate
authority was of the opinion that protecting a structure of
such nature, which was completely unauthorised, would
amount to perpetuation of the illegality.
No further deliberation on the facts are required. As to
the law governing the field the Hon'ble Apex Court has time
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and again held that unauthorized constructions should be
demolished as a matter of public policy.
In the matter of Supertech Ltd. v. Emerald Court
Owner Resident Welfare Assn., reported in (2021) 10 SCC 1 ,
the Hon'ble Apex Court discussed the duties of civic bodies
and lamented the sorry state of affairs as under:-
"167. The Court further observed that an unauthorised
construction destroys the concept of planned
development, and places an unbearable burden on
basic amenities provided by public authorities. The
Court held that it was imperative for the public
authority to not only demolish such constructions but
also to impose a penalty on the wrongdoers involved.
This lament of this Court, over the brazen violation of
building regulations by developers acting in collusion
with planning bodies, was brought to the forefront
when the Court prefaced its judgment with the
following observations : (Esha Ekta Apartments
case [Esha Ekta Apartments Coop. Housing Society
Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357
: (2013) 3 SCC (Civ) 89] , SCC p. 363, para 1)
"1. In the last five decades, the provisions contained in
various municipal laws for planned development of
the areas to which such laws are applicable have been
violated with impunity in all the cities, big or small,
and those entrusted with the task of ensuring
implementation of the master plan, etc. have
miserably failed to perform their duties. It is highly
regrettable that this is so despite the fact that this
Court has, keeping in view the imperatives of
preserving the ecology and environment of the area
and protecting the rights of the citizens, repeatedly
cautioned the authorities concerned against arbitrary
regularisation of illegal constructions by way of
compounding and otherwise."
168. Finally, the Court also observed that no case has
been made out for directing the municipal corporation
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to regularise a construction which has been made in
violation of the sanctioned plan and cautioned against
doing so. In that context, it held : (Esha Ekta
Apartments case [Esha Ekta Apartments Coop.
Housing Society Ltd. v. Municipal Corpn. of Mumbai,
(2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC pp.
394-95, para 56)
"56. ... We would like to reiterate that no authority
administering municipal laws and other similar laws
can encourage violation of the sanctioned plan. The
courts are also expected to refrain from exercising
equitable jurisdiction for regularisation of illegal and
unauthorised constructions else it would encourage
violators of the planning laws and destroy the very
idea and concept of planned development of urban as
well as rural areas."
169. These concerns have been reiterated in the more
recent decisions of this Court in Kerala State Coastal
Zone Management Authority v. State of
Kerala [Kerala State Coastal Zone Management
Authority v. State of Kerala, (2019) 7 SCC 248]
, Kerala State Coastal Zone Management
Authority v. Maradu Municipality [Kerala State
Coastal Zone Management Authority v. Maradu
Municipality, (2021) 16 SCC 822 : 2018 SCC OnLine
SC 3352] and Bikram Chatterji v. Union of
India [Bikram Chatterji v. Union of India, (2019) 19
SCC 161] .
The Hon'ble Apex Court in the said decision further
held as follows:-
159. The rampant increase in unauthorised
constructions across urban areas, particularly in
metropolitan cities where soaring values of land place
a premium on dubious dealings has been noticed in
several decisions of this Court. This state of affairs has
often come to pass in no small a measure because of
the collusion between developers and planning
authorities.
160. From commencement to completion, the
process of construction by developers is regulated
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within the framework of law. The regulatory
framework encompasses all stages of construction,
including allocation of land, sanctioning of the plan
for construction, regulation of the structural integrity
of the structures under construction, obtaining
clearances from different departments (fire, garden,
sewage, etc.), and the issuance of occupation and
completion certificates. While the availability of
housing stock, especially in metropolitan cities, is
necessary to accommodate the constant influx of
people, it has to be balanced with two crucial
considerations -- the protection of the environment
and the well-being and safety of those who occupy
these constructions. The regulation of the entire
process is intended to ensure that constructions which
will have a severe negative environmental impact are
not sanctioned. Hence, when these regulations are
brazenly violated by developers, more often than not
with the connivance of regulatory authorities, it
strikes at the very core of urban planning, thereby
directly resulting in an increased harm to the
environment and a dilution of safety standards.
Hence, illegal construction has to be dealt with strictly
to ensure compliance with the rule of law."
In the decision of Supertech (supra), the Hon'ble
Apex Court held as follows:-
"172. For the reasons which we have indicated above,
we have come to the conclusion that:
172.1. The order [Emerald Court Owner Resident
Welfare Assn. v. State of U.P., 2014 SCC OnLine All
14817] passed by the High Court for the demolition of
Apex and Ceyane (T-16 and T-17) does not warrant
interference and the direction for demolition issued by
the High Court is affirmed.
172.2. The work of demolition shall be carried out
within a period of three months from the date of this
judgment.
172.3. The work of demolition shall be carried out by
the appellant at its own cost under the supervision of
the officials of Noida. In order to ensure that the work
of demolition is carried out in a safe manner without
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affecting the existing buildings, Noida shall consult its
own experts and experts from Central Building
Research Institute Roorkee ("CBRI").
172.4. The work of demolition shall be carried out
under the overall supervision of CBRI. In the event
that CBRI expresses its inability to do so, another
expert agency shall be nominated by Noida.
172.5. The cost of demolition and all incidental
expenses including the fees payable to the experts
shall be borne by the appellant.
172.6. The appellant shall within a period of two
months refund to all existing flat purchasers in Apex
and Ceyane (T-16 and T-17), other than those to whom
refunds have already been made, all the amounts
invested for the allotted flats together with interest at
the rate of twelve per cent per annum payable with
effect from the date of the respective deposits until the
date of refund in terms of Part H of this judgment.
172.7. The appellant shall pay to the RWA costs
quantified at Rs 2 crores, to be paid in one month from
the receipt of this judgment."
In K. Ramadas Shenoy v. Town Municipal Council,
Udipi [K. Ramadas Shenoy v. Town Municipal Council,
Udipi, reported in (1974) 2 SCC 506], the Hon'ble Apex Court
observed that the municipality functioned for public benefit
and when it 'acted in excess of the powers conferred by the
Act or abused those powers, then in those cases it was not
exercising its jurisdiction irregularly or wrongly, but it was
usurping powers which it did not possess'. The Apex Court
held as follows:-
"27.... The right to build on his own land is a
right incidental to the ownership of that land. Within
the Municipality the exercise of that right has been
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regulated in the interest of the community residing
within the limits of the Municipal Committee. If under
pretence of any authority which the law does give to
the Municipality it goes beyond the line of its
authority, and infringes or violates the rights of others,
it becomes like all other individuals amenable to the
jurisdiction of the courts. If sanction is given to build
by contravening a bye-law the jurisdiction of the
courts will be invoked on the ground that the
approval by an authority of building plans which
contravene the bye-laws made by that authority is
illegal and inoperative. (See Yabbicom v. R.
[Yabbicom v. R., (1899) 1 QB 444]).
This Hon'ble Apex Court held that an
unregulated construction materially affects the right of
enjoyment of property by persons residing in a
residential area, and hence, it is the duty of the
municipal authority to ensure that the area is not
adversely affected by unauthorised construction."
In Friends Colony Development Committee v. State
of Orissa reported in (2004) 8 SCC 733, the Hon'ble Apex
Court held as follows:-
"24. Structural and lot area regulations authorise the
municipal authorities to regulate and restrict the
height, number of storeys and other structures; the
percentage of a plot that may be occupied; the size of
yards, courts and open spaces; the density of
population; and the location and use of buildings
and structures. All these have in our view and do
achieve the larger purpose of the public health,
safety or general welfare. So are front setback
provisions, average alignments and structural
alterations. Any violation of zoning and regulation
laws takes the toll in terms of public welfare and
convenience being sacrificed apart from the risk,
inconvenience and hardship which is posed to the
occupants of the building."
Noting that the private interest of landowners stands
subordinate to the public good while enforcing
building and municipal regulations, the Hon'ble
Apex Court issued a caution against the tendency to
compound violations of building regulations :
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"25. ... The cases of professional builders stand on a
different footing from an individual constructing his
own building. A professional builder is supposed to
understand the laws better and deviations by such
builders can safely be assumed to be deliberate and
done with the intention of earning profits and hence
deserve to be dealt with sternly so as to act as a
deterrent for future. It is common knowledge that
the builders enter into underhand dealings. Be that
as it may, the State Governments should think of
levying heavy penalties on such builders and
therefrom develop a welfare fund which can be
utilised for compensating and rehabilitating such
innocent or unwary buyers who are displaced on
account of demolition of illegal constructions."
In Priyanka Estates International (P) Ltd. v. State of
Assam, reported in (2010) 2 SCC 27, the Hon'ble Apex Court
held as follows:-
"55. It is a matter of common knowledge that illegal
and unauthorised 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
sanctioned 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 multi-storeyed 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."
In Esha Ekta Apartments Coop. Housing Society
Ltd. v. Municipal Corpn. of Mumbai reported in (2013) 5
SCC 357 the Hon'ble Apex Court held as follows:-
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"8. At the outset, we would like to observe that by
rejecting the prayer for regularisation of the floors
constructed in wanton violation of the sanctioned
plan, the Deputy Chief Engineer and the appellate
authority have demonstrated their determination to
ensure planned development of the commercial
capital of the country and the orders passed by them
have given a hope to the law-abiding citizens that
someone in the hierarchy of administration will not
allow unscrupulous developers/builders to take law
into their hands and get away with it."
In the matter of Dipak Kumar Mukherjee v. Kolkata
Municipal Corpn., reported in (2013) 5 SCC 336 the Hon'ble
Apex Court held as follows:-
"8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other
structures not only violate the municipal laws and the
concept of planned development of the particular area
but also affect various fundamental and constitutional
rights of other persons. The common man feels
cheated when he finds that those making illegal and
unauthorised constructions are supported by the
people entrusted with the duty of preparing and
executing master plan/development plan/zonal plan.
The reports of demolition of hutments and jhuggi
jhopris belonging to the poor and disadvantaged
section of the society frequently appear in the print
media but one seldom gets to read about demolition
of illegally/unauthorisedly constructed multi-storeyed
structures raised by economically affluent people. The
failure of the State apparatus to take prompt action to
demolish such illegal constructions has convinced the
citizens that planning laws are enforced only against
poor and all compromises are made by the State
machinery when it is required to deal with those who
have money power or unholy nexus with the power
corridors.
9. We have prefaced disposal of this appeal by taking
cognizance of the precedents in which this Court held
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that there should be no judicial tolerance of illegal and
unauthorised constructions by those who treat the law
to be their subservient, but are happy to note that the
functionaries and officers of Kolkata Municipal
Corporation (for short "the Corporation") have been
extremely vigilant and taken steps for enforcing the
provisions of the Calcutta Municipal Corporation Act,
1980 (for short "the 1980 Act") and the Rules framed
thereunder for demolition of illegal construction
raised by Respondent 7. This has given a ray of hope
to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared."
The Hon'ble Apex Court concluded as follows:-
"28. Before parting with the case, we consider it necessary to observe that Respondent 7 is guilty not only of violating the sanctioned plan and the relevant provisions of the 1980 Act and the Rules framed thereunder but also of cheating those who purchased portions of unauthorised construction under a bona fide belief that Respondent 7 had constructed the building as per the sanctioned plan. With the demolition of unauthorised construction some of such persons will become shelterless. It is, therefore, necessary that Respondent 7 is directed to compensate them by refunding the cost of the flat, etc., with interest. Respondent 7 must also pay for raising construction in violation of the sanctioned plan.
29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorised construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it 11 is imperative for the public authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer."
The Court does not find any irregularity in the said order impugned. The learned Tribunal passed the said order with reasons and upon consideration of the fact and law.
The question of retention of the illegal portion based on the latest circular of the Corporation is not gone into.
Therefore, the writ petition is dismissed. There will be no order as to costs.
All parties are to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)