Calcutta High Court (Appellete Side)
Pannalal Bose vs Ranaghat Municipality on 20 March, 2014
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 32170(W) of 2008
Pannalal Bose
Vs.
Ranaghat Municipality
For the petitioner : Mr. Swapan Kumar Dutta, Advocate
Mr. Manoranjan Karmakar, Advocate
For the Ranaghat Municipality : Mr. Achintya Kumar Banerjee, Advocate
For the private-respondents : Mr. Probal Mukherjee, Advocate
Heard on : 11.09.2013, 28.11.2013 and 06.12.2013
Judgement on : 20.03.2014
Sambuddha Chakrabarti, J.:
The petitioner inter alia prayed for a writ in the nature of Mandamus commanding the respondent nos. 1 and 2 to demolish the unauthorized construction made by the respondent no. 3 on a certain street within the Ranaghat Municipality, to withdraw and cancel the permission granted to respondent no. 3 and for other ancillary reliefs.
The case of the petitioner inter alia is that he is the owner of premises no. 70, Pal Chowdhury Street within ward no. 4 of the Ranaghat Municipality. On the left side of the premises exists a plot of land which once belonged to a freedom fighter and was used as a place of worship. The owner of the said plot died in the year 1985 and the petitioner was a distant relation of the said owner. In the year 2003 the respondent no. 3 initiated the construction and erection of a two-storied building on a part of the said plot which was adjoining to the premises of the petitioner. On enquiry it was revealed that one Satya Bala Devi falsely claiming herself to be the niece of the owner mutated her name in the records of the Municipality. Thereafter, the father of the respondent no. 3 on the basis of a fictitious plea of mutual partition caused mutation of his name in respect of a part of the said plot as Raiyati in the records of the West Bengal Land Reforms Act. It was further revealed that the father of the respondent no. 3 had executed a deed of gift and transferred some portion of the land in favour of the respondent no. 3 who had recorded his name in the portion of the said area under Section 50 of the West Bengal Land Reforms Act.
The petitioner has alleged that the respondent no. 3 proceeded with the construction at a portion of the said plot without any sanction or approval. Walls raised upon the said plot rested upon the building of the petitioner without leaving any open space.
In the year 2004 the petitioner filed a writ petition and by an order dated April 11, 2005 this court directed the respondents to make an enquiry into the matter and ascertain as to the correctness of the allegation made by the petitioner and to take appropriate steps in accordance with law within a period of four weeks from the date.
By an order dated September 28, 2005 the Chairman of the Ranaghat Municipality had directed the respondent no. 3 to demolish the unauthorized construction of two rooms, one stair, one kitchen etc. within seven days from the date of the issue of the notice failing which he was informed that the Municipality would demolish the unauthorized construction and the cost for the same would be realized from the said respondent.
Challenging the same the respondent no. 3 filed a writ petition inter alia praying for an order cancelling or withdrawing the said communication. The said petition was disposed of by a learned single judge of this court directing the Chairman of the Municipality to consider the modified plan submitted by the petitioner and to take a decision whether the said construction made by the petitioner could be regularized or not in terms of the modified plan submitted by the petitioner.
The petitioner has smelt collusion between the respondent no. 3 and the Municipality as this order was passed behind his back. He had obtained a copy of the appropriate building plan which reveals arbitrary and unlawful acts and conduct on the part of the respondents in collusion and conspiracy with each other. According to him in the absence of any power to direct regularization of unauthorized constructions the power has to be exercised within the prescribed parameters of the building rules and not otherwise and the unauthorized construction was not of a minor nature which could be regularized as the entire construction was illegal and unauthorized per se. He made a representation seeking justice from the respondents which has been ignored by the authorities and as a result of this unauthorized construction the petitioner has been very seriously prejudiced and the structure of the building of the petitioner has been seriously damaged.
The respondent nos. 1 and 2 have contested the petition by filing an affidavit-in-opposition sworn by the Chairman of the Municipality. The stand of the municipal authorities is that the petitioner has no locus standi or no reason to feel aggrieved. Pursuant to the order passed by this court an enquiry was conducted and an order of demolition was passed. At that time because of the misplacement of file the pending application for sanction of the revised building plan of the respondent no. 3 could not be located and accordingly the order of demolition was passed. When the authorities had received the order passed by this court upon a writ petition being filed by the respondent no. 3 the revised building plan was sanctioned. The petitioner after receiving a copy of the original and the revised building plan made a representation on June 5, 2007 to the Municipality inter alia alleging that the construction was made in violation of the building rules. The respondent no. 2 directed the respondent no. 3 to meet the authority and it was ordered to conduct an enquiry in respect of the objection raised by the petitioner. The private respondent gave a reply to the show cause for such deviation and thereafter the Board of Councilors of the Municipality in its meeting held on July 30, 2007 and upon consideration of the holding of the private respondent allowed the private respondent to retain the stair case subject to payment of Rs. 200/- for such retention within a month from the date of the receipt of the communication. The answering respondents have specifically stated that the landing of the staircase of the respondent no. 3 had exceeded by about one foot and the municipal authorities upon consideration of the violation being minor allowed the prayer of the private respondent and after receipt of the present writ petition directed the appropriate officers of the municipality to conduct an enquiry into the matter on the impression that there might be further construction and/or deviation of the premises in question. An enquiry was conducted and a report thereof was placed on record. The petitioner had made objections one after another and the legal authorities after giving reasonable opportunities to both the parities came to the a conclusion in accordance with law. The respondents denied that it was necessary that the concerned authorities should be directed to demolish the illegal constructions made by the respondent no. 3.
Thus the whole question boils down to the construction made by the respondent no. 3 on a plot which is adjacent to the residential premises of the petitioner. The petitioner has alleged the violation of various municipal laws. He has also challenged the gift made by the father of the respondent no. 3 to his son and they failed to prove that they were the legal heirs of the original owner of the plot. According to him he was not the owner of the plot and he could not apply for the sanction of the plan for construction. According to the petitioner the concerned municipality in violation of Sections 203 and 204 of the West Bengal Municipal Act and in violation of Rule 49 of the building rules had illegally sanctioned the alleged modified plan.
In support of his contention Mr. Swapan Dutta, the learned advocate for the petitioner, has relied on the case of Mahendra Babu Rao Mahadik and Others -Vs.- Subhas Krishna Kanitkar and Others, reported in (2005) 4 SCC 99. With reference to the Maharashtra Regional and Town Planning Act the Supreme Court had held that the Municipal Council is a legal authority and is a creature of the statute. It is bound to carry out its function within the four corners of the Act and is required to follow the rules scrupulously. The Municipal Council is not possessed of any statutory power to regularize any unauthorized construction. Its power is confined to compounding the offences in certain cases. Being beyond the scope of the relevant act the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of its resolution or otherwise. The power of the Municipal Council being confined to the provisions of the said Act no action could be taken by them contrary thereto or inconsistent therewith.
Mr. Achintya Kumar Banerjee, the learned advocate for the respondents nos. 1 and 2 submitted that the respondents have all through enquired into the matter whenever they have received any complain from the petitioner. The respondent no. 3 in reply to a show-cause by the municipality inter alia replied that there was a deviation due to masonry mistake and prayed for the condonation of the same. The Board of Councilors in its meeting dated July 30, 2007 considered the issue and upon consideration of the nature of violation being minor allowed the said respondent to retain the construction upon payment of Rs. 200/- which was duly paid by the respondent no. 3. After receiving the present writ petition the municipality conducted an enquiry into the matter and the enquiry reports submitted to the authorities showed no further construction or deviation in the construction in question. According to Mr. Banerjee the plan respondent no. 3 was sanctioned upon taking into account the West Bengal Municipal (Building) Rules, 1996 which was prevalent on the date the sanction was accorded. In the present case there had been an old structure in dilapidated condition and the respondent no. 3 herein made application for sanction of building plan accordingly.
Undoubtedly the petitioner had made grievance of various violations of the Municipal Rules. The fact, however, remains that against the order dated September 28, 2005 the respondent no. 3 filed a writ petition alleging that prior to the passing of the same order he had submitted a revised plan for regularizing the construction and the said revised plan was still under consideration before the municipal authority. In such view of it the writ petition was disposed of by a learned single judge of this court by directing the Chairman of the Municipality to consider the modified plan submitted by the petitioner and to take a ultimate decision as to whether the said construction made by the petitioner can be regularized or not in terms of the modified plan and the municipality had sanctioned the said plan on May 30, 2006.
Even if it is correct that the respondent no. 3 had obtained the order without making the petitioner a party to the said proceeding the petitioners did not challenge the same by way of an appeal and the grant of the sanctioned plan was not challenged by the petitioner even after he had obtained a copy of the plan from the municipality. Whether there has been any deviation from the plan or not is a question of fact and that cannot be gone into by a writ court. After getting the complaint that the respondent no. 3 had constructed unauthorizedly on the undivided plot of land which was known as "Pujor Barir Math" the municipal authorities directed an enquiry into the matter and it was only because of the minor deviation that he was allowed to retain the construction made by him and even after getting the writ petition they had caused another enquiry to be conducted. As such it cannot be said that they had not addressed themselves to the complaint made by the petitioner. The petitioner's claim that the respondents have violated Sections 203 and 204 of the West Bengal Municipal Act, 1993 does not help him inasmuch as the respondents have asserted that the building plan was already sanctioned by the municipality. It is not a case that the respondent had made the construction without obtaining any previous sanction from the Board of Councilors. When the other deviations allegedly made by the respondent no. 3 were found to be minor deviations the petitioner did not approach this court.
In view of what has been discussed above, particularly in view of the nature of factual disputes raised by the petitioner, I am of the view that this is not a fit case where the reliefs sought for by the petitioner may be granted. The revised plan having been sanctioned and the authorities having found the deviation very minor no interference is called for by this court. The judgement referred to by Mr. Dutta has no application to the fact inasmuch as in that case it was resolved that only because the constructions were unauthorized from the point of humanity that it deemed impracticable and improper to demolish the constructions and, therefore, such cases were disposed of by imposing a penalty. Here this is a case of large-scale illegal construction.
In such view of it, I find no merit in the writ petition. The writ petition is dismissed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee