Calcutta High Court (Appellete Side)
Ganesh Chandra Patra vs The State Of West Bengal & Ors on 8 July, 2022
Author: Amrita Sinha
Bench: Amrita Sinha
6
08.7.2022
SB
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.A. 6776 of 2022
Ganesh Chandra Patra
-versus
The State of West Bengal & Ors.
Mr. Rahul Karmakar
Ms. Gargi Goswami ...For the Petitioner
Mr. Sirsanya Bandyopadhyay
Mr. Arka Kumar Nag
Mr. Tirthankar Dey ...For the B.M.C.
Mr. Goutam Misra
Ms. Priya Nandy ... For private respondents.
The petitioner is aggrieved by the reasoned order passed by the Commissioner of Bidhannagar Municipal Corporation allegedly in compliance of the direction passed by the Court on 08.11.2017 in W.P. No. 11956 (W) of 2017 (Smt. Sabita Nandi vs. The Bidhannagar Municipal Corporation & Ors.).
In compliance of the direction passed in the aforesaid writ petition hearing notice was given to the petitioner as well as the private respondents.
The petitioner and the private respondents are neighbours and there are counter allegations of unauthorized construction. During hearing, Sabita Nandi i.e. the private respondent herein was present.
None appeared on behalf of the petitioner i.e. Ganesh Chandra Patra.
2The Corporation conducted a physical inspection at the alleged premises on 23.03.2022 by the engineers of the Corporation and the respective parties were directed to remain present at the alleged site with all relevant documents.
During inspection it was revealed that the petitioner herein constructed unauthorized construction at the second floor level, comprising of a room, toilet and Puja room and also a terrace over these constructions. The same is beyond the sanctioned building plan. According to the Corporation, these constructions are not reflected in the completion certificate issued in favour of the said premises.
The petitioner has annexed the sanctioned plan of the building in question. It is a two storied building. The completion certificate and the form of granting / occupancy certificate dated 10.09.2007 mentions that this building is two storied.
At the time of inspection it revealed that there is a room, a toilet and a puja room in the second floor level and the terrace over this construction. The building in question has been sanctioned as G+1 building i.e. there are only two floors. According to the sanctioned plan there cannot be any construction on the second floor level that is on the terrace of the first floor.
According to the petitioner, the extent of the unauthorized construction is not clearly mentioned in 3 the impugned order of demolition. The show-cause notice as contemplated in the West Bengal Municipal Corporation Act, 2006 has not been issued.
It has been submitted that though the private respondent has also made illegal construction, the Corporation acted at electric speed only for the purpose of demolition of the petitioner's allegedly unauthorized construction but hardly took any steps to demolish the unauthorized construction made by the private respondents.
Learned counsel appearing on behalf of the Bidhannagar Municipal Corporation submits that a reasonable opportunity of hearing was given to all the parties including the petitioner and the complainant. The sanctioned plan which has been annexed to the writ petition does not mention about any room in the second floor level i.e. at the terrace of the first floor. The Corporation has taken steps against both the petitioner as well as the private respondent who has also made unauthorized construction and the date of demolition has been fixed on 12.07.2022. The date of demolition in respect of the petitioner's unauthorized construction has been fixed on 11.07.2022.
Upon hearing the submissions made on behalf of the parties and on perusal of the reasoned order impugned herein it does not appear that the same is an unreasoned one. Though the specific dimensions of 4 the unauthorized construction are not mentioned, but it has been clearly indicated that there is a room, a toilet and a puja room and also terrace over the construction in the second floor level which is beyond the sanctioned building plan.
The sanctioned building plan which has been annexed to the writ petition does not mention about the room, toilet and the puja room in the second floor level.
Learned counsel appearing on behalf of the petitioner has categorically admitted that apart from the attic there is no other room in the terrace. It has been submitted that construction has been made as per the plan sanctioned by the Corporation.
Learned counsel for the petitioner has relied upon an unreported order dated 28.03.2022 passed by a co- ordinate Bench of this Court in W.P.A. 3982 of 2022 in the matter of Sonal Karar & Anr. Vs. The Howrah Municipal Corporation & Ors. where in the facts and circumstances of the said case, the Court was of the opinion that the order of demolition does not point out the nature, extent and details of deviation from the sanction plan. There is no allegation of extension of floors, during the pendency of the revised plan. The Court was of the opinion that unless the order of demolition specifically indicates the nature of the deviation and the extent of unauthorized construction 5 which is to be demolished, such order cannot be implemented.
In the present case, the order of demolition clearly mentions about the room, toilet and the puja room that has been constructed in the second floor level. The unauthorized construction has been clearly identified. May be the proper measurement is not there, but the same is enough to identify the unauthorized construction.
Accordingly, the judgment relied upon by the petitioner in the case of Sona Karar & Anr. (supra) will not be applicable in the facts and circumstances of the present case.
As it appears that the petitioner has been able to identify the construction which the Corporation has held to be an unauthorized one specifically mentioned as one room, toilet and the puja room in the second floor level, accordingly, it cannot be said that the unauthorized construction is not an identified structure. Anything which has been constructed without obtaining the sanction and not thereafter regularized by the Corporation remains unauthorized.
The Corporation has given reasonable opportunity of hearing to the parties. Physical inspection was held to identify the unauthorized portion. It does not appear that the Rules relating to the removal of unauthorized 6 construction have not been adhered to by the Corporation at the time of passing the impugned order.
In view of the above, no relief can be granted to the petitioner in the instant case.
It is made clear that the Corporation will not interfere with any construction that has been made in accordance with the plan sanctioned in favour of the petitioner.
The writ petition fails and is hereby dismissed. Urgent photostat certified copy of this order, if applied for, be given to the parties on completion of usual formalities.
(Amrita Sinha, J.)