Calcutta High Court
Md. Faroque Khan vs Rajendra Ram And Ors on 29 April, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-5
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/166/2024
WITH WPO/1498/2023
GA/1/2024
MD. FAROQUE KHAN
VS
RAJENDRA RAM AND ORS.
.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE The Hon'ble JUSTICE PRASENJIT BISWAS Date : 29TH April, 2024. .
Appearance:
Mr. Rudranil De, Adv.
Mr. Subhronil Ghosh, Adv.
......for appellant Ms. Sweta Gandhi, Adv.
...for respondent no.1 Mr. Alak Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
...for KMC Mr. Debangshu Dinda, Adv.
...for the State.
The Court:- By consent of the parties, the appeal and the application are taken up together for hearing.
An order dated April 19, 2024, passed by a learned single Judge of this Court on the writ petition of the respondent No.1 herein, being WPO/1498/2023, is under challenge in this appeal at the instance of the respondent No.8 in the writ petition.
Allegations were made before the learned Judge that eighteen properties in Tiljala Road area of Kolkata have been developed without 2 obtaining requisite sanctioned building plan from Kolkata Municipal Corporation (in short, "KMC"). From time to time, diverse orders were passed by the learned single Judge starting with the order dated September 21, 2023. For better understanding of the facts and circumstances of the case, some of the orders, starting with the order dated September 21, 2023, are set out hereinbelow:
"The Court: The petitioner has filed the writ petition alleging illegal and unauthorized construction in respect of eighteen structures which have allegedly been constructed in violation of the Municipal Corporation building rules and regulations.
Learned Advocate representing the respondent no. 15 submits, upon instruction that, construction has been made in accordance with the plan sanctioned by the Corporation.
Respondent no. 15 is directed to produce copy of the sanctioned plan pursuant to which the construction has been made.
Perused the report filed by the engineers of the Kolkata Municipal Corporation. The said report does not disclose the dates on which steps were taken by the Corporation to proceed against the unauthorised construction work that was brought to the notice of the Corporation.
Report has been filed on behalf of Karya Police Station signed by the Officer-in-Charge on 18.08.2023.
Learned advocate representing the State respondents is directed to take instruction from the Controller, Kolkata Thika Tenancy as to whether the subject premises are recorded as thika or not. 3
Report shall be placed before this Court by the Controller, Kolkata Thika Tenancy on the adjourned date.
Executive Engineer of the concerned Borough is directed to file a report by way of affidavit disclosing details of the action taken in respect of the structures which were detected to be constructed in violation of the provisions of law."
On October 11, 2023, a further order was recorded by the learned Judge which reads as follows:
"The Court:- Report filed by the Kolkata Municipal Corporation is taken on record. Copy of the same has been served upon the learned advocates representing the parties in Court today. Parties will be entitled to file exception to the same prior to the adjourned date.
Accommodation has been sought for on behalf of the learned advocate representing the State respondents.
Let the matter appear in the list on 22.11.2023. Person responsible is restrained from carrying on any construction until further orders.
Private respondent is also restrained from transferring/alienating or creating third party right in respect of the subject premises until further orders.
Report shall be placed before this Court by the Controller, Kolkata Thika Tenancy on the adjourned date.
Affidavit of service filed in Court today is taken on record." 4 An order was then passed on November 22, 2023, which reads as follows:
"The Court: Learned Advocate representing the respondent no.15 submits, upon instruction that, there is a G + 2 storied structure at 232/B, Tiljala Road. No sanction was granted by the Corporation for raising the said construction. No new construction is being made at present. It has been submitted that there is no pucca construction at premises no.232/A, Tiljala Road.
Learned Advocate for the petitioner is directed to forward the assessee number in respect of premises no.168/E, Tiljala Road to the learned Advocate representing the Corporation in course of the day.
Learned Advocate for the Corporation is directed to produce the updated report in respect of all the eighteen constructions as mentioned in the report filed in the form of affidavit on behalf of Kolkata Municipal Corporation by the Executive Engineer (Civil), Borough-IX, affirmed on 10th October, 2023.
Learned Advocate representing the Controller, Kolkata Thika Tenancy shall also produce a report on the adjourned date dealing with the status of all the properties mentioned in the instant writ petition.
The interim order passed on 11th October, 2023 restraining the persons responsible for carrying on any construction and further restraining them from transferring/alienating or creating third party right in respect of the subject premises shall continue until further orders.5
The Officer-in-Charge, Karaya Police Station is directed to ensure that no harm is caused to the life and property of the petitioner during the pendency of the writ petition.
Learned Advocate representing the petitioner is directed to forward her mobile number to the learned Advocate representing the Controller, Kolkata Thika Tenancy so that communication meant for the petitioner may be communicated to his learned Advocate.
List the matter on 13th December, 2023."
On February 20, 2024, a further order was recorded by the learned Judge which reads as follows:
"The Court:- Heard submissions made on behalf of both the parties. Learned advocate representing the petitioner submits that despite stop work notice issued in respect of some of the premises, the person(s) responsible are continuing with the work of construction in an authorised manner.
Learned advocate representing the Kolkata Municipal Corporation seeks time to produce further updated report. Let updated report be submitted before this Court on the adjourned date clearly mentioning the steps taken after detection of the unauthorized construction.
Officer-in-Charge, Karaya Police Station is directed to keep strict vigil in respect of all the properties mentioned in the writ petition to ensure that construction in any manner whatsoever is not carried out at the subject premises without leave of the Court. 6
The interim order that is subsisting in the matter is extended till 20.03.2024 or until further order, whichever is earlier.
Let the matter appear in the list on 12.03.2024." Another order was passed on March 12, 2024 which reads as follows:
"The Court:- Perused the instruction forwarded by the engineers of the Kolkata Municipal Corporation, Borough VII signed on 11.03.2024. Out of eighteen properties complained of in only nine of them the Corporation took steps under Section 400[8] of the Kolkata Municipal Corporation Act, 1980. The instruction mentions that the demolition took place in a portion of the unauthorised construction. Demolition of the entire construction, however, is yet to be made.
In respect of two properties proceeding under Section 400 of the Act has been initiated. The instruction does not mention as to the sub- section of Section 400 under which the proceeding is being conducted.
In respect of remaining seven properties, the Corporation failed to identify the structure because either they are un-assessed property or otherwise they are old structures and no new construction could be found.
The Court fails to understand as to how despite having a specific premises number, the Corporation failed to identify the property. The property may be un-assessed on account of non payment of property tax, but it should not be difficult for the Corporation to identify the same. 7 The same can be done by noticing the premises number and the premises number of the adjoining premises.
On the prayer of the learned advocate representing the Corporation, the writ petition stands adjourned till 15.04.2024.
The Corporation is directed to conclude the demolition process in respect of the nine structures where Section 400[8] has been invoked. The photographs of the individual structures showing the demolition work shall be produced before this Court on the adjourned date.
As regards the other constructions, an updated report shall be placed before this Court.
All steps shall be taken to deal with the unauthorised constructions strictly in accordance with law.
The interim order that is subsisting is extended till 30.04.2024 or until further order, whichever is earlier."
Finally, an order was recorded by the learned Judge on April 19, 2024, which is sought to be impugned in this appeal. The material portion of the said order reads as follows:
"It is seen that if the outer structure is also not demolished, the person responsible repairs the holes and starts using the unauthorized construction. The same cannot be permitted. If the construction has been detected to be an unauthorized one and part demolition has been made, then the Corporation ought to take steps to demolish the entire structure, both the interior and 8 exterior, so that the structure cannot be repaired and made habitable.
Six of the structures have been found to be old ones and no new construction found at the time of inspection. The engineers have not been disclosed how old these structures are. The engineers ought to satisfy themselves that the structures were constructed in accordance with the sanctioned plan. It may be that the structures are old but they do not have any sanctioned plan, craftsmanship of the structure is not known, the quality of the materials used at the time of construction is also unknown. The structural stability of the said structures ought to be verified to ascertain as to whether these structures were constructed in accordance with law or not.
The Corporation is directed to demolish the outer structures of the nine constructions where Section 400(8) provision has been invoked. As regards the structures which could not be identified as they are un-assessed property, is also required to be verified.
Let a further updated report be placed before this Court on 20th May, 2024.
The interim order that is subsisting is extended till 24.05.2024 or until further order, whichever is earlier." 9
We, therefore, see that illegal constructions have been raised indiscriminately by reckless builders. Such unauthorised constructions need to be dealt with very strictly.
In the present case, we are concerned with premises No.234B, Tiljala Road, P.S. Karaya, Kolkata. The appellant claims to be developing that property. However, he is unable to produce any sanctioned building plan.
KMC has filed a report dated April 12, 2024, before the learned single Judge wherein it is stated, inter alia, that the department has issued stop work notice in respect of premises No.234B, Tiljala Road on September 15, 2023. The emergency provision of Section 400(8) of the KMC Act, 1980, has been invoked in respect of the concerned unauthorised structure. Let a copy of such report be kept with the records.
It is high time that a message goes out loud and clear to all builders, that no unauthorised construction shall be tolerated. Not only the planned development of a city is jeopardized by such unauthorised structures, the same also put undue pressure on the civic amenities. Unscrupulous builders raise constructions without obtaining requisite prior permission from the competent authority and sell off the same to unsuspecting buyers. With the sale proceeds, such people vanish into thin air and normally are difficult to be found subsequently. Strictest of measures should be taken against such offenders of law. People, who make construction without sanctioned building plan, deserve no leniency 10 or sympathy from a Court of law far less a Court of equity, which the Writ Court is.
It is not in dispute that the impugned construction involved in the present case is not backed by any sanctioned building plan. Such unauthorised construction cannot be allowed to remain. We see no infirmity in the order of the learned single Judge, which is sought to be assailed before us.
The appeal and the connected application, accordingly, fail and are dismissed with costs assessed at Rs.10,000/- to be paid by the appellant to the State Legal Services Authority, West Bengal within a fortnight from date.
Let a copy of this order be sent to the Member Secretary, State Legal Services Authority, West Bengal, forthwith. In the event the appellant fails to pay the cost within a fortnight from date, the Member Secretary shall draw the same to our attention. Let this matter be listed on May 17, 2024, under the heading "To be Mentioned" only for the purpose of ascertaining whether or not the appellant has paid the cost as directed by this order.
Since we have not called for affidavits, the allegations made in the application are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J) (PRASENJIT BISWAS, J.) sm