Calcutta High Court (Appellete Side)
Rajesh Kumar Surana vs The State Of West Bengal & Ors on 11 July, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
1
31. 11.07. W.P. 7625 (W) of 2018
Sd3 2018
Rajesh Kumar Surana.
Versus
The State of West Bengal & Ors.
With
CAN 4648 of 2018 (Addition of Party)
Mr. Saptangsu Basu, Ld. Sr. Advocate
Mrs. Sutapa Sanyal
Mr. Triptimoy Talukdar
...for the petitioner.
Mr. Nayan Chand Bihani
Mr. Santanu Chatterjee
...for the Howrah Municipal Corporation.
Mr. Debasish De
...for the respondent no.5
Mr. Srijib Chakraborty Mr. Subhasis Chakraborty Mr. S. Nandy Mr. Amit Chowdhury Mr. Sushmita Singh ...for the added respondent.
Mr. Dwarika Nath Mukherjee Mr. Manik Lal De ...for the State In Re : CAN 4648 of 2018 (Addition of Party) This is an application by the applicant who claims to be in possession of the property concerned and is making repairs at the property.
The writ petitioner complains of unauthorized construction.
In such circumstances, the applicant being a necessary and a proper party is added as a party respondent in the present writ petition.
Learned advocate-on-record in the writ petitioner is at liberty to incorporate the necessary amendments in the writ petition. The writ petitioner will serve a copy of the amended writ petition upon the added respondent.
CAN 4648 of 2018 is disposed of accordingly. By consent of the parties the writ petition is treated 2 as on the day's list and is taken up for consideration.
The petitioner complains of unauthorized construction.
Learned advocate appearing for the added respondent questions the locus of the writ petitioner to maintain the writ petition. He refers to the pleadings in the writ petition and submits that, the writ petitioner is not even a resident of Howrah Municipal Corporation where the subject building is located. As the petitioner is not a taxpayer of Howrah Municipal Corporation, no right of the petitioner has been infringed by reason of the alleged unauthorized construction, assuming though not admitting that, there is any unauthorized construction. No right of the petitioner being infringed, he cannot come to the writ Court complaining of unauthorized construction. In support of his contentions, learned advocate for the added respondent relies upon 1975 Volume-II Supreme Court Cases Page-702 (Bar Council of Maharashtra -Versus- M.V. Dabholkar & Ors), 1974 Volume-II Supreme Court Cases Page-506 (Sri K. Ramadas Shenoy -Versus- The Chief Officers, Town Municipal Council, Udipi & Ors.), 2001 Volume-IV Supreme Court Cases Page-734 (Vinoy Kumar -Versus- State of U.P. & Ors.) and 2012 Volume-IV Supreme Court Cases Page-407 (Ravi Yashwant Bhoir -Versus- District Collector, Raigad & Ors.) Learned senior advocate appearing for the writ petitioner relies upon 86 Calcutta Weekly Notes Page- 592 (Kalidas Dutta Versus Corporation of Calcutta & Ors.) and submits that, the writ petitioner has substantial 3 interest in ensuring that a statutory authority adheres to the statute. If there is any violation of statutory provisions by a statutory authority, a person can approach the writ Court. The writ petitioner complaining of failure of Howrah Municipal corporation in ensuring that no building in its jurisdiction is unauthorised. The writ petitioner has therefore locus to maintain the writ petition in such context.
Howrah Municipal Corporation and the private respondent are represented.
The writ petitioner claims to be a citizen of India. It is his claim in the writ petition that, he is a resident of Salt Lake, Kolkata and that, he is engaged in different social activities. He complains that, there is an unauthorized construction at the subject premises. He also complains that, Howrah Municipal Corporation has failed to discharge duties enshrined under the Howrah Municipal Corporation Act, 1980 so far as the subject premises is concerned.
Sri K. Ramadas Shenoy (Supra) is a case where, the municipality had granted a licence for construction of a Cinema Hall by allowing conversion of an existing hall used for different purpose. A resident of the area challenged the resolution of the municipality approving conversion of an existing hall into a cinema hall on the ground that, the municipality did not perform its duties imposed under the Town Planning Scheme. In such context, the Supreme Court is of the view that, the petitioner has a right to insist on the performance of duty imposed upon a statutory authority under the scheme. 4 The Supreme Court goes on to say that, an illegal construction materially affects the right to or enjoyment of the property by persons residing in the residential area. It goes on to say that, the illegality complained of in that case was incurable and proceeds to quash the same.
Kalidas Dutta (Supra) is by a co-ordinate Bench and is of the view that, in a matter involving public interest, when once, whatever may be the source, the Corporation of Calcutta comes to know of any violation or breach of rules it can take initiative. Any source, which may be a relation, co-owner or co-sharer or any member of the public can point out any discrepancy and the Corporation can take notice of it.
M.V. Dabholkar (Supra) considers the meaning of a person aggrieved under Section 38 of the Advocates' Act 1960 and explains the same.
Ravi Yashwant Bhoir (Supra) is a case where a person wanted to get himself added in a proceeding alleging misconduct against an office bearer. In such context, the applicant seeking addition was found not to have any locus to be added as a party in such proceeding.
Vinoy Kumar (Supra) is a case where an advocate representing one of the accused persons had filed a writ petition praying for quashing of an order passed by the District and Sessions Judge transferring the criminal cases against the accused to the Additional District and Sessions Judge/Special Court. Such a writ petition was dismissed on the ground that, an advocate for an accused has no locus to assail an order passed by the District Judge transferring the proceeding to the Additional 5 District Judge/Special Judge.
In the present case, the petitioner complains of violation of the statutory rules by a statutory body. He is entitled to do so. He is entitled to approach the writ Court upon such grievance not being addressed by the statutory authorities. It cannot be said that, a citizen of India cannot approach in a writ Court under Article 226 of the Constitution of India complaining that, a statutory authority has failed to discharge duties enjoined upon it by law. Whether or not such a writ petitioner will receive the relief ultimately is a different issue and will depend upon the fact scenario of each case. The right to approach the writ Court cannot be denied.
In view of the discussions above, the writ petition at the instance of the writ petitioner is found to be maintainable. The writ petitioner is held to have locus to file and maintain the present writ petition. The allegation of unauthorized construction requires consideration. Howrah Municipal Corporation had filed a report in the form of an affidavit. Such report discloses that, there is some construction on an old structure. It is bereft of material particular as to whether the structure is authorised or whether the construction is in accordance with the sanctioned building plan or not. Learned advocate for the petitioner relies upon a photograph which shows that, the entire construction is new.
In such circumstances, it would be appropriate to call upon the Howrah Municipal Commissioner to depute a competent person of his choice, to inspect the locale, upon notice to the private parties, and submit a report in 6 the form of an affidavit, as to the nature of construction made, the portions which are unauthorized and any other aspect that such official seeks to draw the attention of the Court to. He will prepare a site plan of the area. He will state in his affidavit as to whether there exists any sanctioned building plan or not. He will take photographs of the entire structure and will submit the same along with the report in the form of an affidavit.
List the writ petition on August 1, 2018 when the report as called for be filed.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)