Calcutta High Court (Appellete Side)
Prabir Ghosh vs The Kolkata Municipal Corporation & Ors on 12 August, 2013
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
12.08.2013 W.P. 23601(W) of 2007
ss
Prabir Ghosh
Vs.
The Kolkata Municipal Corporation & ors.
With
W.P. 24843(W) of 2007
Sri Sri Isswar Singhabahini Thakuranee
Vs.
Municipal Commissioner & ors.
Mr. Surojit Samanta
... For the petitioner in W.P.
No.23601(W) of 2007 and for
the private respondent in W.P.
No.24843(W) of 2007 Mrs. Seba Roy .... For the petitioner in W.P. No.24843(W) of 2007 and for the private respondent in W.P. No.23601(W) of 2007 Mr. Barin Banerjee Mr. Fazlul Haque .... For the K.M.C. in W.P. No.23601(W) of 2007 Mr. Jugal Ch. Porel Mr. Debangshu Mondal .... For the K.M.C. in W.P. No. 24843(W) of 2007 Both the matters relate to the order passed by the Building Tribunal for demolition of unauthorised construction:- (1) Erected unauthorised staircase with RCC from ground floor to roof of first floor with pillars and 2 connected wall have been erected on the rooftop of the adjoining premises facilitate resting on the illegal staircase, (2) Unauthorised construction of chajja- projected over CMC footpath in respect of premises No.32, Bose Para Lane.
It appears that initially a proceeding under Section 400(1) of the Calcutta Municipal Corporation Act, 1980 was started and the demolition order in respect of Chajja projected covering CMC footpath was passed. So far the staircase is concerned, no demolition order was passed by the Special Officer, Building. The complainant being dissatisfied with the order came up before this Hon'ble Court and this Hon'ble Court passed the following order on 30th January, 2004 :-
"The petitioner herein has challenged the validity and/or legality of the direction passed by the Special Officer (Building) in paragraph-B of the order dated 28th October, 2002 in demolition case no.15-D/02/03. Parties have filed affidavits in compliance with the earlier direction passed by this Court. Heard the learned counsel of the respective parties. It appears from the records that the learned advocate of the petitioner by written communication dated October 7, 2002 bearing annexure-P4 to the writ petition made specific allegation before the Special Officer (Building) in respect of the unauthorised and illegal construction of the premises no.32 Bose Para Lane. It has been 3 specifically mentioned in the said written complaint that the illegal construction was extended even on the roof top of the adjoining premises so as to facilitate the testing of the illegal staircase. Surprisingly, the aforesaid complaint has not been taken into consideration by the Special Officer (Building), while deciding the complaint of the petitioner. Scrutinising the order passed by the Special Officer (Building) on 28th October, 2002, the demolition case no.15- D/02/03, I find that the said Special Officer (Building) has allowed the demolition proceeding in part and refused to pass any demolition order in respect of the newly constructed RCC staircase although specific complaint has been made on behalf of the petitioner to the effect that the pillars and connected wall have been erected on the roof top of the adjoining premises in order to facilitate testing of the illegal staircase. The Special Officer (Building) did not deal with the aforesaid serious complaint made on behalf of the petitioner in his aforesaid order dated 28th October, 2002.
For the aforementioned order, the direction of the Special Officer (Building) as mentioned in paragraph 'B' of the order dated 28th October, 2002 cannot be sustained and the same is accordingly quashed. The Special Officer (Building) is directed to reconsider the complaint lodged by the petitioner regarding the alleged unauthorised construction of the RCC staircase constructed at the premises no.32, Bose Para Lane after giving reasonable opportunity of the hearing to all the interested parties including the petitioner and the respondent no.6 herein and pass a reasoned order without any further delay but 4 positively within a period of 8 weeks from the date of communication of this order. The writ petition is, thus disposed of. There will be no order as to costs."
In view of such direction the Special Officer, Building one again heard the matter and passed the following order :-
"Point No. 1 :-
The complainant side submitted that from the demolition sketch as well as from the precis it appears that the newly constructed unauthorised staircase of the P.R. pushed unauthorisedly into the parapet wall of the Southern side of the premises viz. 31, Bose Para Lane premises from which the safety and security of the said premises is at a stake and may please be ordered to demolish. The authorised representative of the complainant added in his submission that previously there was no staircase in the place where the unauthorised staircase was constructed. The 1st floor of 32, Bose Para Lane was accessible only by means of an iron spiral staircase and there was no pucca staircase from 1st floor rooftop as such the entire constructions covering the Item No.1 and Item No.2 of the precis may please be demolished.
The P.R. submitted that the impugned constructions practically did not affect the complainant premises viz. 31, Bose Para Lane in any way. If the staircase is demolished then the 1st floor which is existence will be value less because the P.R. and his family member will not be able to enjoy the 1st floor without any staircase. On this point the humanitarian ground at least this staircase as well as the casting of 5 roof of the 1st floor may please not be ordered to demolish.
Carefully and anxiously considered the submissions of both sides and perused carefully the materials on records. The Municipal Commissioner delegated his power of u/S. 400(1) of KMC Act'80 to this forum u/S. 48(3)(b) of KMC Act'80. Being a delegate of the Municipal Commissioner the power by this forum is mainly two folds. If unauthorised constructions is detected of this forum during hearing, this forum either may order for demolition of the same or if sufficient cause is found may not pass any such demolition order. In the present case regarding the unauthorised constructions of Item No.1 and 2 of the departmental precis (Ext-1), which in my previous order dt. 28.10.02 at paragraph 'B' was ordered not to demolish subject to complying certain preconditions. But the Hon'ble Court was pleased to quash the same viz. the entire paragraph 'B'. Therefore, this forum has got no other alternative but to order for demolition of the unauthorised constructions as per Item No.1 and 2 of the precis (Ext-1) viz. the subject matter of paragraph 'B' of the order at the ordering portion passed by this forum on 28.10.02. So the point is decided accordingly. Hence, ORDERED that the P.R. must demolish the casting of the unauthorised roof (roof of the 1st floor) by R.C.C. and erection of unauthorised stair case which R.C.C. from ground to roof of 1st floor along with stair head room within 15 days from the date of the communication of this order, in default, K.M.C. shall demolish the same at the cost and at the risk of the P.R. 6 The order passed in respect of the Item No.3 of the unauthorised constructions viz. Chajja projected over K.M.C. footpath as given in the previous order dt. 28.10.02 at paragraph 'A' remains unaltered.
On demolishing the impugned unauthorised constructions as ordered in this final order, either by the P.R. himself of by the department, the P.R. is entitled to get refused back the charges if already paid by him as one of the preconditions for not passing of a demolition order in respect of these unauthorised constructions as described in the precis as Item No.1 and 2."
Thereafter the complainant, who is suffering for construction of staircase, filed a writ petition being W.P. No.24843(W) of 2007 for demolition of the staircase as per Special Officer (Building)'s order and the person responsible for such unauthorised construction filed a writ petition being W.P. No.23601(W) of 2007 for setting aside the order passed by the learned Tribunal directing the writ petitioner to demolish the unauthorised staircase. Since the order passed by the Tribunal is the subject- matter in both the writ petitions, those writ petitions are taken up together for final disposal. There is also an order passed by the learned Single Judge of this Hon'ble Court to hear out both the matters together.
However, Mr. Samanta, learned Counsel appearing 7 for the person responsible submitted that the Tribunal did not apply its mind. It has proceeded mechanically on the basis of the order passed by the learned Single Judge of this Court on earlier occasion. Mr. Samanta submitted earlier order of retention was passed so far the staircase is concerned and the private respondent came up before this Hon'ble Court and this Court directed the Tribunal to rehear the matter. The Tribunal without considering the entire matter passed the impugned order of demolition on the basis of the order passed by the learned Single Judge.
Mr. Samanta submitted that the allegation of using parapet wall of the neighbour is not correct. He submitted that the construction is in fact not affecting anyone. It was constructed for better utilisation of the property of the petitioner alone.
Mr. Samanta submitted that his client being the owner of the premises preferred an appeal before the Tribunal and the Tribunal also affirmed the order passed by the Special Officer, Building and thereafter a review application was made and the review application was also dismissed.
Mr. Samanta submitted that so far the projected R.C.C. roof over the KMC road is concerned, that portion 8 was demolished by his client and so far the staircase is concerned, as per earlier order of the Special Officer, Building, his client deposited the fee for regularisation.
Mr. Samanta also submitted that both the Special Officer, Building as well as the Tribunal mechanically passed the order following the order passed by this Hon'ble Court. There is no application of mind nor there is proper consideration of the points raised by his client.
Mr. Samanta submitted that the review application was also mechanically dismissed. He submitted that the impugned order passed by the Special Officer, Building on second occasion as well as the Building Tribunal should be quashed and staircase constructed by his client should be retained.
Mrs. Seba Roy, learned Counsel appearing for the complainant submitted that so far unauthorised construction of staircase is concerned, the construction made by the person responsible is really affecting the complainant's right to enjoy his property. A portion of the staircase was constructed on the parapet wall of the complainant. She submitted that the person responsible for such unauthorised construction did not take any sanction and/or approval from the Municipal Corporation 9 for such construction. She also submitted that for erection of staircase with R.C.C. from ground floor to roof of first floor along with stair headroom requires sanction from the Municipal authorities. According to her, unauthorised construction should be demolished. She further submitted that it also affects the safety and security and stability of her client's premises. According to her, the unauthorised staircase should be demolished.
For consideration of the entire matter it is necessary to record the nature and character of three unauthorised constructions - (1) Casting of roof (roof of 1st floor) by R.C.C. (2) Erection of staircase with R.C.C. from ground to roof of 1st floor along with stair head room, (3) Chajja has been projected over C.M.C. foot path.
It appears as per complaints filed by the adjoining owners, the Municipal authorities started a proceeding under Section 400(1) of C.M.C. Act, 1980. The Special Officer, Building upon hearing the parties, on first occasion, passed the following order :-
" ORDERED this demolition proceeding is allowed in part.
"A" The P.R. must demolish the unauthorised projected over hanging slab on C.M.C. road and the unauthorised constructions with fibre glass sheet shed 10 made over the roof of the 1st floor within 15 days from the date of the communication of this order, in default, C.M.C. shall demolish the same at the cost and at the risk of the P.R. "B" No demolition order is passed in respect of the newly constructed R.C.C. stair made at the South of the building as well as reconstructed roof by R.C.C. over the 2nd storey removing the previous one, subject to complying the following preconditions by the P.R. within 30 days from the date of the communication of this order. Those conditions are (1) P.R. must produce a certificate from any C.M.C. panelled Structural Engineer certifying that the structural stability and the foundation of the impugned constructions are safe and sound and the materials used as well as workmanship are as per the latest edition of National Building Code of India, (2) he must furnish an affidavit declaring on oath that he will not make any construction whatsoever in the impugned premises without prior sanction from the C.M.C. authority, and (3) he will pay the necessary retention charges of the C.M.C. as calculated by the department in a separate sheet of paper attached and supplied with this final order. On non compliance of either of the conditions within above states specified period the C.M.C. authority shall demolish the same at the cost and at the risk of the P.R. The directions given at the paragraphs (A) & (B) of this ordering portion are independent to each other and none is dependent on compliance of the other."
Against the order, complainant came up before this Court and filed a writ petition being W.P. No.24843(W) of 11 2007. The person responsible for such unauthorised construction, on the other hand, deposited the regularisation charges in compliance of the order passed by the Special Officer, Building. However, this Hon'ble Court while disposing of the writ petition of the complainant recorded that the complainant in his written complaint alleged that construction was extended even on the rooftop of adjoining premises so as to facilitate the resting of the illegal staircase.
The learned Trial Judge also recorded that surprisingly the said complaint was not taken into consideration by the Special Officer, Building while deciding the complaint. Accordingly, the Special Officer, Building was directed to re-hear the complaint lodged by the petitioner relating to alleged unauthorised construction of R.C.C. constructed at premises No.32, Bose Para Lane after giving reasonable opportunity of hearing to all the interested parties including the petitioner and to pass a reasoned order without any further delay.
The Special Officer, Building once again heard the matter and recorded that in his previous order dated 28th October, 2002 at paragraph 'B' he ordered not to demolish 12 the staircase, subject to complying certain conditions. But the Hon'ble Court was pleased to quash the same viz., the entire paragraph 'B'. Therefore, he has no other alternative but to order for demolition of the unauthorised construction as per Item No.1 and 2 of the precis, which is subject-matter of paragraph 'B' of the order dated 28th October, 2002.
Against that order the owner of the premises preferred appeal and the Appellate Tribunal after considering the entire matter affirmed the order passed by the Building Tribunal. The relevant portion of the aforesaid order is as follows :-
" We have mentioned earlier that there are three allegations stands against the P.R. viz. i) casting of roof (roof of the 1st floor) by RCC, (ii) erection of Stair Case with RCC from ground to roof of 1st floor along with stair head room and (iii) Chajja projected over CMC Footpath. Allegation further stands that by the said unauthorised construction P.R. infringes the Building Rule 57, 61,62,109 & 110 of the CMC Act. At the outset we are to say from the submission of the Appellant as well from the earlier demolition order of the S.O(B) that the said matter of projection of Chajja covering the CMC Footpath is otherwise admitted and the Appellant has also demolished the same. But however, the main grievance of the appellant as to the ordering portion of demolition in respect of the rest 13 portion of unauthorised construction stating inter alia that they have simply raised the stair case in place of old and damaged wooden stair case without causing any harm or obstruction to anybody else and thus any violation of any building rules is relaxable, condonable and retainable. On the other hand both the sets of the Respondents denied the submission of the Appellant stating inter alia that the aforesaid RCC stair case from ground to roof of the 1st floor along with stair head room and casting of roof on the 1st floor raised by the Appellant not only without the permission/sanction of the CMC authority but also it has been extended so much so that pillars and connected walls were erected on the roof top of the adjoining premises No. 31, Bosepara Lane, so as to facilitate resting of illegal stair case. By the said construction there is total obstruction of air and light to the adjoining premises belonging to the Deity Sree Sree Singhabahini Thakurani. In view of the same Pvt. Respondent states that by the said massive illegal construction resting upon the adjoining wall not only P.R. damages the property of the others (Complainants) but also violated all the Rules regarding attachment, easement, right to air and light etc. of the adjoining houses. Ld. Counsel for the CMC in this regard adopting the case of the Pvt. Respondents also referred the Inspection report of the S.A.E. dt. 20.5.02. Admittedly report of SAE speaks as
- 'Inspected the above premises and found that the works are lying stopped. RCC roof is projected over the CMC footpath. Southern side wall of the stair head room has been constructed over the Parafet walls of the other premises (Southern side).14
Precis, D/Sketch and proposal u/s 400 are put up herewith.' Inspection report of a Competent Officer (SAE) thus speaks by itself that there was projection over the CMC footpath and Stair Case head and stair case along with other construction raised over the wall of the adjoining premises causing damages to them. Obviously such act of P.R. is detrimental to the interest of the others and can not be said to be minor construction or minor in nature and the infringement of building Rules in this regard are negligible and relaxable. Any retention thus will be at the cost and suffering of the others which is not only unethical but also against the principle of natural justice. Photograph of the said construction touching/ damaging of the wall of the neighbouring plot filed and also supports the submission of the Respondents.
Summing up everything, we thus hold the view that the grounds under the appeal and the submission of the Appellant are not at all justified and tenable. On the other hand impugned order of S.O(B) is very speaking considering all aspect and thereby we find no cogent ground to interfere the said order of the S.O(B) dt. 1.6.2004. Appeal thus fails.
Memorandum of Appeal duly stamped.
Hence, it is ordered.
That the B.T. Appeal No. 59 of 2004 be and the same is thus hereby dismissed on contest but without cost.
Order of S.O(B) dt. 1.6.2004 passed in Demolition Case No. 15-D/2002-03 in respect of premises No. 32, Bosepara Lane, is thus hereby affirmed."15
The review application was also moved and the review application was also rejected and the following order was passed rejecting the application for review :-
" However, whatever may be the submission of all the parties, let us see how far the Review Application is tenable. Fact remains that upon application of rule 20 this Tribunal can ' (a) amend any defect or error in any order or proceedings in an appeal or (b) make such orders as may be necessary for ends of justice to prevent abuse of the process of the Tribunal.' But in the present case as it appears that by taking advantage of this rule 20 petitioner/ appellant once more tried to reopen the entire appeal under this Review Application almost on the similar grounds in the name of error, defect, wrong findings etc. This grounds are nothing but a repeatation of the original grounds under the appeal. Ld. Counsel for the Appellant also argued almost on the similar fashion as it was at the time of argument of the appeal. We thus find no cogent reason or any further development and/or any defect, error, mistake to make any such orders as warranted in rule 20 or rule 24 of CCT (CB) Rule 1965.
Besides, in the name of exercising power under rule 20 or rule 24 this Tribunal 'cannot set aside/ recall its own judgement' and ordered to 'retain of the impugned construction' in terms of the prayer made in the appeal. Further power to review is not an inharrent power like 151 CPC. It must be conferred by law either specifically or by necessary implication (AIR 1970 (SC) 1273). Fact remains that there is no such specific provision for 'Review' of a judgement. It is a 16 creature of a statute and cannot be entertained in absence of provision therefor (1966 I SCR 817 : AIR 1966 (SC) 641).
Accordingly, summing up everything, we thus hold the view that the present application for Review dt. May 30th, 2006 for recalling/setting aside of this Tribunal's judgment dt. May 6th, 206, is thus considered and rejected on contest but without cost."
I have carefully gone through the order passed by the Special Officer, Building as well as the order of the Tribunal on two occasions, one is while disposing of the appeal and thereafter when disposing of the review application. It appears to this Court that on all three occasions the concerned authorities have considered the illegal and unauthorised construction made by the writ petitioner. So far construction of projected Chajja is concerned, that was demolished. So far the unauthorised staircase is concerned the construction was made without any sanction from the Municipality. It is evident that the owner of the premises made R.C.C. construction which required prior sanction as per provisions under the Kolkata Municipal Act, 1980 as well as Rules framed thereundeer but I find, there is no sanction nor there is any such application of the owner for according sanction. It is also recorded in the order of the Tribunal that such 17 construction was raised damaging the wall of the complainant.
In my view, the finding of the Tribunal do not suffer any illegality. Moreover these structures are very old and structural stability is an important aspect which could not be neglected. One portion of the staircase is resting on the complainant's parapet wall causing prejudice to the enjoyment as well as causing structural hazards on the complainant's premises.
In my view, the construction made by the writ petitioner could not be regularised under any circumstance specially when there is no sanction and further a portion was constructed on the parapet wall of the neighbouring owners. Therefore, this Court is not inclined to interfere with the order passed by the Tribunal.
Accordingly, the writ petition being W.P.23601(W) of 2007 is dismissed. So far writ petition being W.P.24843(W) of 2007 is concerned, the same is allowed.
In case the person responsible do not demolish the unauthorised construction within fortnight, the Municipal authorities are directed to remove the staircase at their own cost and to recover the cost from the person 18 responsible.
There would be no order as to costs.
Later :
Mr. Samanta prays for stay of operation of this order, but prayer is refused.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Ashoke Kumar Dasadhikari, J.)