Calcutta High Court
Sandeep Sehgal vs The Kolkata Municipal Corporation & Ors on 28 April, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP No. 1005 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SANDEEP SEHGAL
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 28th April, 2015.
Appearance :
For K.M.C. :
Mr. Barin Banerjee,Advocate
Mr. Dilip Kr. Chatterjee,Advocate
The Court : - The challenge in the present writ petition is
the order dated August 23,2013 passed by the Municipal Building Tribunal
in Appeal No. 71 of 2009.
It is contended on behalf of the writ petitioner that the
directions contained in the judgment and order of the Appeal Court dated
May 8, 2009 has not been complied with by the Special Officer (Building).
The writ petitioner was not allowed to produce relevant evidence before the
Special Officer (Building). It is also contended on behalf of the writ
petitioner that, the Building Tribunal had proceeded on the surmise that
the writ petitioner had constructed windows on a load bearing wall. The
2
Building Tribunal ought to have made an effort to find out whether the wall
concerned was a load bearing one or not.
The Corporation authorities are represented. It is
submitted on behalf of the Corporation authorities that the writ petitioner
being a tenant under the provisions of the Kolkata Municipal Corporation
Act, 1980 has no authority to undertake a construction and to obtain a
sanction for building plan. In any event, the construction undertaken by
the writ petitioner is without any sanction by the Corporation authorities.
Both the Special Officer and the Building Tribunal have reached a finding
on a fact. A writ petition should not be entertained in respect of such a
finding of fact when such finding of fact is not perverse.
The private respondents are represented. It is submitted on
behalf of the private respondents that wall in question where the writ petitioner had made the constructions has been admitted by the writ petitioner before the Building Tribunal to be a load bearing wall. Such admission is recorded in the order impugned. In view of the admission that the wall in question being a load bearing wall, the question of appointment of any independent engineer for such purpose or such finding of fact being said to be perverse does not and cannot arise.
I have considered the rival contentions of the parties and the materials made available on record.
The writ petitioner before me is a tenant in respect of a portion of a building at premises no. 6/2E, Acharya Jagadish Chandra Road, 3 Kolkata. The landlord of the premises had made a complaint to the Corporation authorities with regard to constructions carried out by the writ petitioner at such premises. The writ petitioner had filed a previous writ petition being WP No. 264 of 2009. Such writ petition was disposed of by a judgment and order dated April 24,2009 whereby the learned Single Judge directed that the holes made in the wall should be filled up with necessary police help. The writ petitioner had preferred an appeal being APOT No. 158 of 2009. Such appeal was disposed of by a judgment and order dated May 8, 2009. The Appeal Court had modified the order of the learned Single Judge. It was observed that the writ petitioner would be entitled to raise appropriate objection, if they so desire. The private respondents were also allowed to submit written statement. The Special Officer (Building) was directed to hear both the writ petitioner as well as the private respondents and to pass an appropriate reasoned order in accordance with law.
In terms of the directions passed by the judgment and order dated May 8, 2009 the Special Officer (Building) conducted the proceeding and passed an order dated August 7, 2009.
It is alleged by the writ petitioner that the direction given by the Division Bench in the judgment and order dated May 8, 2009 has not been followed by the Special Officer (Building). However, the order dated August 7, 2009 passed by the Special Officer (Building) has not been produced by the writ petitioner at the hearing of the writ petition. The writ 4 petitioner was served with the order of the Special Officer (Building). The writ petitioner had preferred an appeal therefrom to the Building Tribunal. Reference has been made to three grounds of the appeal before the Building Tribunal. Such grounds of appeal have not been pressed at the hearing of the appeal as would appear from the order impugned.
The Special Officer (Building) by its order dated August 7, 2009 as would appear from the impugned order had directed the unauthorised construction to be removed by the writ petitioner and in default the Corporation Authorities were granted liberty to demolish the same at the cost and risk of the person responsible.
The writ petitioner being aggrieved preferred an appeal before the Building Tribunal which was registered as B.T. Appeal no. 71 of 2009. Such appeal was disposed of by the an order dated August 23, 2013 which is impugned herein. The order impugned records the submission of the learned Advocate for the writ petitioner that the writ petitioner had put some windows by partly breaking the load bearing wall of the ground floor. The Building Tribunal had also considered the sketch plan being exhibit '2' and found that the thickness of the wall to be about 25 inches. On the basis of such thickness of the wall the Building Tribunal was of the view that such wall could be treated as a load bearing wall. The Building Tribunal goes on to find that the load bearing wall has been damaged due to the opening caused by cutting of the said wall. The Building Tribunal 5 affirmed the order passed by the Special Officer (Building) dated August 7, 2009.
The Building Tribunal had material before it to come to the finding that the wall in question was a load bearing wall. The Building Tribunal was also of the view that there has been unauthorised alteration at the instance of the writ petitioner. No material has been placed before me to suggest that any of the findings returned by the Building Tribunal is perverse.
In such circumstances, I find no merit in W.P. 1005 of 2013. The same is dismissed however without any order as to costs.
(DEBANGSU BASAK, J.) S.Chandra/TR