Calcutta High Court
Mohammad Israil And Anr vs The State Of West Bengal And Ors on 22 August, 2022
Author: Aniruddha Roy
Bench: Aniruddha Roy
O-34
ORDER SHEET
WPO/187/2019
IA NO. GA/1/2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
MOHAMMAD ISRAIL AND ANR
-VS-
THE STATE OF WEST BENGAL AND ORS.
BEFORE:
The Hon'ble JUSTICE ANIRUDDHA ROY
Date : August 22, 2022.
Appearance:
Mr. Arif Ali, Adv.
...for the petitioners
Mr. Biswajit Mukherjee, Adv.
Mr. Mihir Kundu, Adv.
Mr. Debangshu Mondal, Adv.
...for KMC
The Court: This writ petition has been filed assailing the impugned
order dated May 12, 2017 passed by the Director General (Building), Kolkata
Municipal Corporation (for short 'the impugned order').
Pursuant to the direction made on January 11, 2017 by a Co-
ordinate Bench, the said decision was rendered by the Kolkata Municipal
Authority. The relevant portion from the said order dated January 11, 2017 is
set out hereinbelow:
"There is no denial that there is a deed of lease executed in
favour of the petitioners. It is essentially a matter of fact what
right flows from the lease deed in favour of the petitioners or the
said deed was ever acted upon which this Court feels it would not
be necessary to make any observation thereon. The fact remains
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that the petitioners have approached the authority seeking non-
sanctioning of the plan in respect of the premises which has not
been attended and/or taken into consideration as yet.
Equally, it is true that the Corporation sanctioned the building
plan in the meantime. Section 397 of the Act provides a remedy to
a person aggrieved by such sanction of the building plan to
approach the competent authority for cancellation thereof and if
such approach is made the authority named therein is statutorily
bound to determine the same. There is no prescribed form for
filing an application under the aforesaid provision. The procedure
is hand made of justice. Approach was made to the Mayor-in-
Council, Building Department, at pre-sanctioned stage. Once the
development took place during the pendency of the said
application, there is no difficulty which this Court can percieve of
to permit litigant to mould the relief. It is open to the petitioners
either to continue with the existing application upon bringing the
subsequent events in the form of supplementary statement of
facts or to file a fresh application under Section 397 of the Act. If
the first course is adopted, the Mayor-in-Council shall transmit
the said application and the materials produced before it to the
authority competent under Section 397 of the Act who shall
thereafter proceed to determine the said application treating the
same to have been filed before it after affording an opportunity of
hearing to either of the parties in accordance with law.
It is expected that the fate of the said application shall be
brought to its logical end within eight weeks from date of
communication of this order. Nothing in this order shall be
construed to have an impact on the merit of the said application
and said authority shall not be swayed by any observations made
herein."
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For adjudication of this writ petition, the relevant provision from the
Kolkata Municipal Corporation Act, 1980 is also required to be looked into
and the same is also set out hereunder:
"397. Sanction or provisional sanction accorded under
misrepresentation. - If, at any time after the communication of
sanction or provisional sanction to the erection of any building or
the execution of any work, the Municipal Commissioner is
satisfied that such sanction or provisional sanction was accorded
in consequence of any material misrepresentation or any
fraudulent statement in the notice given or information furnished
under section 393 or section 394 or section 395, he may, by order
in writing, cancel, for reasons to be recorded, such sanction or
provisional sanction, and any building or any work commenced,
erected or executed shall be deemed to have been commenced,
erected or executed without such sanction and shall be dealt with
under the provisions of this Chapter :
Provided that before making any such order, the Municipal
Commissioner shall give a reasonable opportunity to the person
affected as to why such order should not be made."
From a close scrutiny of the said impugned order dated May 12,
2017, it appears that the relevant documents specifically the relevant
conveyance dated April 9, 2012 was there before the sanctioning authority
who had sanctioned the relevant building plan dated January 6, 2016. The
said conveyance is also annexed to this writ petition as Annexure P-1. The
relevant clause of the said conveyance is set out hereinbelow:
"8. Pursuant to negotiation between the Vendor and the
Purchasers, the Vendor has agreed to sell and the Purchasers
have agreed to purchase the said Premises on as is where is basis
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free from all mortgages, charges, liens, trust, lispendens (save
C.S. No. 337 of 1990 pending before Calcutta High Court) and
attachment but subject to all municipal tax liabilities and subject
to lease of Madan Lal Gupta and Om Prakash Gupta under the
Deed of Lease dated 22nd December 1989, tenancies of several
tenants and possession of unauthorized occupants at or for the
price of Rs.70,00,000/- (Rupees Seventy Lakh only) subject to the
terms, conditions, covenants and provisions hereinafter
contained."
The provision invoked by the Municipal Authority for cancellation of
the said subject building plan while passing the said impugned order was
section 397 of the KMC Act. Such provision has already been quoted above.
From a close scrutiny of the said provision of the Act, it appears to this Court
that, if, at any time, after the communication of sanction or provisional
sanction to the erection of any building or execution of any work, the
Municipal Commissioner is satisfied that such sanction or provisional
sanction was accorded in consequence of any material misrepresentation
or any fraudulent statement in the notice given or information
furnished under Section 393 or Section 394 or Section 395, he may, by
order in writing cancel for reasons to be recorded, such sanction or
provisional sanction.
In the fact of this case, it was on record that all the encumbrances
attached with the immovable property being premises No. 6A, Indian Mirror
Street, Kolkata-700013 was duly disclosed and described in the said
conveyance dated April 9, 2012, was there before the plan sanctioning
authority and in consideration whereof the plan was sanctioned.
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It was contended by Mr. Biswajit Mukherjee, learned counsel
appearing for the Kolkata Municipal Corporation that, on the basis of the
misrepresentation by not disclosing that a lease was in existence on the
property and in violation of Rule 4(3) of the Kolkata Municipal Corporation
Building Rules, 2009, the said plan was obtained. Thus, the sanction was not
valid and lawful and was liable to be cancelled and accordingly the plan was
cancelled.
The sanctioning authority while sanctioning the building plan, as
would be evident from the facts of this case, had due notice and knowledge of
whatever encumbrances were there on the property including the subject
lease. Despite such notice and knowledge the sanctioning authority thought it
fit to sanction the building plan in exercise of their statutory power. Thus, it
would be incorrect to contend that on the basis of any misrepresentation the
building plan was sanctioned. Such contention of the KMC Authority was
thus, baseless and misconceived.
The authority while passing the impugned order cancelling the
building plan had committed serious jurisdictional error by invoking Section
397 of the Act.
In view of the above, the said impugned order dated May 12, 2017
Annexure P-12 to the writ petition stands set aside and quashed.
However, the respondent no.5 i.e. The Director General of
Building, Kolkata Municipal Corporation may revisit the issue strictly in accordance with law upon giving at least 7 days prior hearing notice to the petitioners and also the private respondent nos. 7 to 12 and after giving them an opportunity of hearing and then to come to its logical conclusion thereof 6 with a reasoned decision/order. The parties will be free to argue all points available to them.
The entire exercise as directed above shall be carried out by the respondent no.5 within a period of 6 weeks from the date of communication of this order and the respondent no.5 then shall communicate his reasoned decision/order to the parties within a further period of 2 weeks from the date of such reasoned order/decision to be passed.
On the above terms, the writ petition, WPO/187/2019 stands allowed.
Accordingly, IA No.GA/1/2021 also stands disposed of.
(ANIRUDDHA ROY, J.) sp3