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Calcutta High Court (Appellete Side)

In Re: Koushik Saha And Others vs State Of West Bengal And Others on 13 September, 2010

Author: Patherya

Bench: Patherya

04
                                  W.P. 8030 (W) 2010
     13.9.10
     .md.

                            In Re: Koushik Saha and Others
                                      -Vs-
                             State of West Bengal and Others



               Mr. Jayanta Banerjee
               Mr. Arindam Chatterjee

                            ... for the petitioners

               Ms. Monjuli Chaudhury
               Ms. Mekhla Sinha

                            ... for the respondent Nos. 3 to 6

Mr. Ashit Kr. Chakraborty ... for the respondent No.9 Mr. Syed Nazmul Hossain ... for the State By this writ petition, the petitioners seek to challenge the order passed by the District Engineer, Howrah Zilla Parishad on 1st March, 2010.

The case of the petitioners is that on a complaint lodged by the private respondent a hearing was held by the respondent No.3. At such hearing, an as-made plan was submitted wherein certain deviations due to ignorance made during construction were cited and therefore sanction sought. Out of the total 22 flats, only a few have applied for car parking space. The private respondent is not one of them. Therefore, the private respondent can have no grievance and those who are aggrieved parties did not file complaint. In fact, car parking space has been allotted to persons from whom money had been received 2 and those who did not apply for car parking space can have no grievance against the petitioner. In fact, after the order has been passed by the respondent No.3, the additional stair-case for fire fighting purposes has been constructed. Therefore, there has been part compliance with the order passed. As regards the car parking space, it was incumbent on the respondent authorities to sanction the as-made plan as deviation, if any, is due to ignorance and the non-requirement of car parking space. Therefore, to the extent that the order dated 1st March, 2010 directs arrangements to be made for car parking, the order be set aside.

Counsel for the respondent authorities submits that this is not the sole deviation in respect of which a complaint was made. In spite of space being earmarked for pump room, generator room, electrical room, septic tank and fire fighting facilities, the petitioner has deprived the flat owners of such privileges and therefore the direction for construction of an additional stair-case and car parking space given. Therefore, no interference is called for with the order dated 1st March, 2010.

Counsel for the private respondent submits there are altogether 22 owners in the said premises. Only 14 of them have lodged complaint with the authorities. Out of the total number of flat owners, only eight applied for car parking space and the money of two was returned for reasons unknown. This will be evident from the bank statement of the persons to whom the money for car parking space was returned. The petitioners, prior to vesting of third-party interest in the said shop rooms, approached the respondent authorities. In fact, pursuant to the order dated 1st March, 2010, the additional stair-

case of fire fighting facilities has been constructed and the car parking space is a part of the agreement for sale and the deed of conveyance and as the flat owners are ready and willing to purchase car parking space the said cannot be deprived to the flat owners. Therefore, the direction contained in order dated 1st March, 2010, is justified and no order be passed on this application.

Having considered the submissions of the parties, a plan was sanctioned in February, 2008 and on basis thereof construction was made at the said premises. In the said sanction plan, a car parking space alongwith a water reservoir, septic tank, electrical room, pump room and generator room besides scooter parking spaces were identified. Admittedly, there has been a deviation from the original sanction plan. As if this was not so, the question of submitting an as-made plan could not have arisen. From a look of the as-made plan, it will appear that the car parking space no longer exists and only one scooter parking space can be found. In fact, there is no electrical room, pump room or generator room and the position of the septic tank and underground water reservoir have also been changed. Therefore, there has been undoubtedly deviation and such deviation, as held by the order dated 1st March, 2010, ought to be corrected by providing the car parking facilities and no infirmity can be found with the said order as admittedly although on the petitioner's own admission certain car parking spaces have been allotted but the same has not been earmarked in the as-made plan, therefore, the as-made plan is not a correct reflection of the situation prevailing in the said premises and therefore the order dated 1st March, 2010 need not be interfered with.

In view of the aforesaid, no order is passed on this application and the same is accordingly dismissed.

This will, however, not debar the petitioner to place the as-made plan before the concerned authorities in accordance with law.

Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.

(Patherya, J.)