Calcutta High Court (Appellete Side)
Ashit Kumar Mitra & Anr vs South Dum Dum Municipality & Ors on 9 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 6
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
F. M. A. 480 of 2024
(CAN 1 of 2024)
Ashit Kumar Mitra & Anr.
-Vs-
South Dum Dum Municipality & Ors.
For the Appellants : Mr. Pawan Kumar Gupta, Adv.
Mr. Manish Shukla, Adv.
Ms. Sofia Nesar, Adv.
Mr. Santanu Sett, Adv.
Ms. Aditi Chatterjee, Adv.
Mr. Sankha Subhra Chakraborty, Adv.
For the Municipality : Mr. Amales Ray, Adv.
[South Dum Dum Municipality] Ms. Mousumi Bhowal, Adv.
Mr. Aman Gupta, Adv.
Mr. Ishan Bhattacharya, Adv.
For Respondent no.5 : Mr. Siddheswar Sarkar
[In Person] Heard on : 09.09.2024 Judgment on : 09.09.2024 2 Joymalya Bagchi, J. :-
1. Respondent no.5/writ petitioner had approached the court alleging the appellants had undertaken construction of a G+5 storied building in the adjoining premises in violation of the West Bengal Municipal Building Rules. It has been alleged mandatory open spaces on the rear side had not been maintained. The septic tank had been constructed at a distance of 3 ft. from the drinking water reservoir of respondent no.5. This is in violation of the reports submitted by World Health Organisation (WHO) which prescribes a minimum distance of 18 mtrs. i.e. 59 ft. between a septic tank and borehole i.e. water tank. Respondent no.5 approached the municipal authorities and a stop work notice was issued upon the appellants. However, appellants continued with the illegal construction and respondent no.5 approached this court, inter alia, praying for demolition of the illegal portions of the G+5 storied building.
2. Hon'ble Single Judge directed inspection of the building.
Inspection report was submitted. Parties filed their objections to the inspection report. Upon considering the materials on record Hon'ble Single Judge directed the appellants to remove deviations as pointed out by the Sub-Assistant Engineer, South Dum Dum Municipality in his report placed before the court.
3. Appellants have assailed the order before this court. 3
4. Mr. Pawan Kumar Gupta for the appellants contends the deviations are minor and there is nothing on record to show the drinking water reservoir of respondent no.5 had been polluted.
5. Ms. Mousumi Bhowal for the South Dum Dum Municipality submits the issues may be referred to the Chairman of the Municipality for consideration whether the deviations are minor and may be regularised.
6. Respondent no.5 appears in person. He contends there is breach of mandatory rules and the deviations cannot be condoned.
7. We have considered the rival submissions at the Bar in light of the report of the Sub-Assistant Engineer, South Dum Dum Municipality submitted before the Hon'ble Single Judge.
8. The report shows the septic tank had been constructed at a distance of 1350 mm. instead of 2150 mm. from the property line. Chlorine tank has been constructed at a distance of 1000 mm. instead of 600 mm. from the property line. The deviation of the side open space is 1200 mm. instead of 1329 mm. and 1100 mm. instead of 1200 mm. With regard to construction of toilet the report states the balcony of respondent no.5 has projected to the extent of 1000 mm. from the ground floor slab.
9. Respondent no.5 contends the report gives an incorrect picture. The chlorine tank described in the report is in fact a septic tank.
10. In view of the aforesaid facts, we are of the considered opinion the Hon'ble Single Judge ought to have remitted the matter before the 4 Chairman, South Dum Dum Municipality for consideration whether deviations with regard to the site where septic tank had been constructed and maintenance of the side open spaces require demolition or such deviations may be considered as minor and regularised. The grievance expressed by respondent no.5 that a septic tank had been incorrectly described as chlorine tank also requires further enquiry.
11. Accordingly, we direct the Chairman, South Dum Dum Municipality to consider the deviations indicated in the report of the Sub- Assistant Engineer and come to a finding whether the said deviations may be considered as minor deviations and regularised. While doing so, the Chairman is at liberty to undertake further inspection particularly with regard to objection raised by respondent no.5 that a septic tank had been incorrectly described as chlorine tank. Chairman shall also obtain report from the appropriate authority whether the site of the septic tank would affect the quality of drinking water in the reservoir of respondent no.5.
12. After taking into consideration the aforesaid materials and giving opportunity of hearing to the appellants as well as respondent no.5, the Chairman, South Dum Dum Municipality shall pass a reasoned order whether the deviations noted in the report or any other deviation that may come to his notice require to be demolished or the said deviations may be treated as minor and regularised. The entire exercise shall be concluded within eight weeks from the date of communication of this order.
13. The impugned order is modified to the aforesaid extent. 5
14. Appeal is accordingly, disposed of.
15. In view of disposal of the appeal, connected application being CAN 1 of 2024 is also disposed of.
16. There shall be no order as to costs.
17. Photostat certified copy of this judgment, if applied for, be given to the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.) akd