Calcutta High Court (Appellete Side)
Sudhir Gopal Biswas vs Kharagpur Municipality & Others on 13 May, 2015
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 8562 (W) of 2011
Sudhir Gopal Biswas.
Vs
Kharagpur Municipality & Others.
For the Petitioner Mr. Probal Kr. Mukherjee, Learned Senior Advocate
Mr. Nilanjan Bhattacharjee, Learned Advocate
Mr. Dipanjan Sinha Ray, Learned Advocate
Miss Debarati Bhattacharya, Learned Advocate
Mr. Sanjoy Karar, Learned Advocate
For the Respondent Nos 1 to 3 Mr. Anant Kr. Shaw, Learned Advocate
Ms. Pranati Das, Learned Advocate
Mr. Samrat Dey Paul
For the Respondent Nos.7,8,9,
10 & 11. Mr. Saptanshu Basu, Learned Senior Advocate
Mr. Uttam Kr. Bhattacharya, Learned Advocate
Heard on : May 4, 2015
Judgment on : May 13, 2015.
Samapti Chatterjee, J.
1. Assailing the non-action and the inaction on the part of the respondent authority particularly the respondent no.2 the Municipal Authority to demolish the rest of the unauthorised construction as per the notice of demolition dated 29th January, 2011 at the petitioner's premises in RS Dag No.440, 441 and 434/971 Mouza-Kousallya, Kharagpur, District- Paschim Medinipore 1 petitioner filed the instant writ petition. The petitioner is the co-owner and occupier in the said property. The petitioner had his residential building over the said property also.
Since the said properties of the petitioner are adjacent to the Orissa Trunk Road at Kharagpur the authorities had demolished the residential building of the petitioner being on the road side for the purpose of clearance of space for the Orissa Trunk Road. After such demolition conducted by the Municipal Authority the portion of the said properties on the roadside remained vacant, as a result of which the private respondent illegally entered into the said vacant portion and occupied the said vacant portion of the petitioner's property and started making illegal and unauthorised construction over the said property without obtaining any sanction plan from the authority and without obtaining consent from the petitioner. When the petitioner came to learn about such illegal and unthorised construction made by the private respondents on the vacant portion of the petitioner's property then and then the petitioner lodged complaint on 4th October, 2010 to the respondent no.2, chairman, Kharagpur Municipality and respondent no.5, Chairman, Midnapore, Kharagpur Development Authority inter alia requesting their offices to take necessary action against the wrong doers and to immediately stop the illegal construction and demolish the same. After receiving the said complaint the Chairman, Kharagpur Municipality issued a notice on 5th October, 2010 under Section 304 read with Sections 440, 441 and 434 of the West Bengal Municipal Act, 1993 to the private respondent no.7, 8, 9 and 11 inter alia directing to immediately stop the illegal construction and show cause within seven days from the date of receipt of this notice why necessary action will not be taken against them under the appropriate sections of the West Bengal Municipal Act, 1993.
In spite of receiving such notice the private respondents did not stop the illegal construction in the petitioner's vacant plot therefore, the Municipal Authority again on 29th January, 2011 issued another notice to the private respondents inter alia informing them that the illegal construction raised by them shall be demolished by the Municipality on 7th February, 2011. By virtue of the said notice of demolition the respondent Authority demolished some portion of the illegal construction raised by the private respondents, but, leaving some portion of the such illegal construction undemolished thus causing great prejudice and inconvenience to the petitioner, therefore, the petitioner made a representation dated 12th March, 2011 before the Right to Information Act seeking information as regards the action of the concerned municipality towards demolition of the remaining part of the illegal and unauthorised construction raised by the private respondents on the petitioner's said property.
Thereafter vide a letter dated 5th April, 2011 RTI informed that the said Municipal Authority have demolished 70 per cent of the unauthorised construction on the said properties on 7th February, 2011 on the basis of the resolution no.1 of the Board of Councilors' meeting dated 25th November, 2010.
2. Hence the petitioner filed the present writ petition seeking inter alia direction upon the respondent authorities to demolish the remaining part of the unauthorised construction raised by the private respondents on the petitioner's said properties.
3. Mr. Prabal Mukherjee, learned Senior Counsel appearing for the petitioner submitted that the respondent authorities in connivance with the private respondents motivatedly, arbitrarily and deliberately failed to demolish remaining undemolished unauthorised construction raised by the private respondents in the petitioner's properties for reason best known to all.
4. Mr. Mukherjee also contended that it is obligatory on the part of the respondent authorities to demolish the entire illegal construction raised by the private respondents on the petitioner's properties but as per the resolution no.1 adopted in the Board of Councilors meeting dated 25th November, 2010 surprisingly, the said authorities have demolished only 70 per cent of the unauthorised construction on 7th February, 2011 keeping remaining portion of the unauthorised construction undemolished as a result respondents are guilty of not complying with the relevant provisions of the West Bengal Municipal Act, 1993 and the West Bengal Municipal Building Rules' 2007.
5. Mr. Mukherjee further vehemently urged that the private respondent has made out their case in affidavit-in-opposition that a suit for ejectment was filed by the petitioner against the private respondents being Title Suit No.108 of 1998 which is pending before the 2nd Court of Civil Judge (Junior Division) Medinipore. Suppressing this fact, the writ petition was filed by the petitioner which was dealt with by the petitioner in affidavit-in-reply in Paragraph 9 which is quoted below:-
"Para-9- .....it is denied that the writ petitioner has suppressed material facts in the writ petition in not disclosing the existence of the suit proceeding being Title Suit No. 108 of 1989. In this regard it is stated that the said suit is filed way back in the year 1989 for eviction of licensee whereas, the present writ application is initiated against the inaction and/or non-action of a statutory authority to demolish a construction which has been declared by it to be unauthorised. Hence, the writ petitioner has not suppressed any relevant fact, rather, for simplification of the case the facts which are deemed by him to be irrelevant have been left out. Moreover, there is no bar to seek recourse of law in respect of the self same property before different Court of Law if the cause of action and the nature of the cases are different and are required to be filed in different jurisdiction".
6. Mr. Mukherjee also relied on Section 218 (5) and also Section 220 of the West Bengal Municipal Act, 1980 which are quoted below :
"Section 218 Sub Section 5- Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman-in-Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on, in contravention of th provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith.
Section-220-Power of Chairman to stop unauthorised construction-(1) In any case in which the erection of a building or any other work connected therewith has been commenced or is being carried on unlawfully, the Chairman may, by written notice, require the owner or the person carrying on such erection or unlawful work to discontinue the same forthwith, pending further proceedings as respects such unauthorised construction. (2) If any notice issued under sub-section (1) is not duly complied with, the Chairman may, with the assistance of the police or any employee of the Municipality, if necessary, take such steps as he may deem fit to stop the continuance of the unlawful work.
(3) If it appears to the Chairman that it is necessary, in order to prevent the continuation of the unlawful work, to depute any police or employee of the Municipality to watch the premises, the cost of providing the same shall be borne by the person to whom the said notice was addressed."
7. Mr. Mukherjee further contended that the illegal construction should be demolished by the respondent authorities. In support of his contention Mr. Mukherjee relied on a Supreme Court decision reported in AIR 2013 (Supreme Court) Page-927 (Dipak Kumar Mukherjee vs Kolkata Municipal Corporation and Ors) Paragraphs 8, 26, and 28 which are quoted below:-
"Para-8-What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning law are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
Para-26-In our view, respondent no.7 cannot take benefit of Rule 25 because the disputed construction was in clear violation of the sanctioned plan and the notices issued by the competent authority of the Corporation and also because the application was made after completion of the construction.
Para-28-In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by respondent no.7 is pulled down without delay, we issue the following directions;
1. Within three months from today, respondent no.7 shall pay the price of the payment.
2. The occupiers of illegal/unauthorised construction shall vacate such portions of the building within next one month.
3. Within next one months, the Corporation shall demolish unauthorized construction after taking adequate precautionary measures.
4. Respondent no.7 shall pay cost of Rs.25,00,000/- for brazen violation of the sanctioned plan and continuance of illegal construction despite 'stop work notice'. The amount of cost shall be deposited with the Kolkata State Legal Service Authority within three months and the same be utilized for providing legal aid in deserving cases."
7. Mr. Mukherjee drew my attention to some portion of the affidavit-in-opposition filed by the private respondent nos.7 to 11. Relevant extract of the Paragraph 10 is quoted below :-
" ....The said Chairman has completed their demolition work fully upto their satisfaction as there was no legal steps on behalf of the respondent nos.7 to 11 herein to obstruct the said illegal demolition work."
8. Mr. Mukherjee also strongly argued that the stop work order followed by demolition order passed by the Municipal Authorities were never challenged by the private respondents in any Court of Law.
9. In conclusion Mr. Mukherjee submitted that the writ petition should be allowed by directing the respondent authorities to demolish the undemolished remaining portion of the unauthorised construction raised by the private respondents on the petitioner's properties in pursuance of the notice dated 29th January, 2011.
10. Mr. Anant Kumar Shaw, learned Advocate appearing for the respondent authorities contended that no papers were available in the office of the respondent authorities pertaining to the demolition order in respect of the unauthorised construction made in the petitioner's properties.
11. Per contra, Mr. Saptanshu Basu, learned Senior Counsel appearing for the private respondents vehemently contended that the writ petition should be dismissed only on the sole ground of suppression of material fact as the writ petition was filed without disclosing the material fact that the ejectment suit being Title Suit no. 108 of 1989 is pending before the concerned learned Court below.
12. Mr. Basu also strongly argued that demolition order dated 29th January, 2011 is bad in law as it was issued by the Chairman, Kharagpur Municipality.
13. Mr. Basu further contended that under Sub section 5 of Section 218 power has been given to the Chairman in case of extreme urgency, exigency to issue such notice for demolition after narrating the reasons in writing for such action.
14. Mr. Basu further contended that the nature, gravity of the present case was not such that the Chairman had to exercise his power conferred under Sub Section 5 of Section 218 of the Said Act, 1993. In support of his contention Mr. Basu relied on a Single Bench decision reported in 1990 (1) C.L.J Page 124 (Maula Bux vs State of West Bengal). Mr. Basu also relied on a Supreme Court decision reported in 1977 (2) SCC Page-424 (Mannalal Khetan & Others vs Kedar Nath Khetan & Others) Para-20.
15. Therefore, Mr. Basu concluded his arguments by submitting that writ petition should be dismissed on the ground of suppression of material facts and also on the ground that the impugned order of demolition cannot be sustained as it was issued by the Chairman, Kharagpur Municipality.
Power to issue demolition order by the Chairman only conferred under Sub Section 5 of Section 218 in the case of extreme urgency or exigency demands for issuance of such demolition order but the present case is not a case which demands the Chairman to invoke such power under Sub Section 5 of Section 218 of the said Act. Therefore, this writ petition deserves to be dismissed.
16. Considering the submissions advanced by learned Advocates of the respective parties and after perusing the records I am of the view that the demolition order dated 29th January, 2011 was issued by the Chiarman, Kharagpur Municipality on the basis of the resolution no.1 adopted by the Board of Councilors on 25th November, 2010 as revealed from the RTI report dated 5th April, 2011 Page 37 of the writ petition and averment made in Paragraph 9 of the writ petition. Therefore, this cannot be suggested that demolition order was issued by the Chiarman, Kharagpur Municipality without any resolution adopted by the Board to that effect. Extract of the RTI report dated 5th April, 2011 is quoted below :-
"Sub: Supply of information as per R.T.I. Act-2005 Ref: Your R.T.I Application, dated 12.03.2011 Sir, In reference to your application under R.T.I. Act-2005 this is to inform you that as per resolution No.01 of the B.O.C's Meeting held on 25.11.2010 at 3.00 p.m., the demolition of an illegal building situated over plot's No.440,441,434/791 of Mouza : Kaushallya, P.S.:Kharagpur, Paschim Medinipur had taken place in presence of the committee members.
A copy of the report submitted by the committee members as well as demolition report dated 07.02.2011 are enclosed hereby for your information.
Thanking you, Yours faithfully S.P.I.O & O.S., Kharagpur Municiplaity Date :05.04.2011"
17. I also find substance in the submission made by Mr. Mukherjee that the private respondents never challenged the stop work order or the demolition order in any Court of Law. Not only that I cannot also ignore the fact that the private respondents themselves admitted in their affidavit-in-opposition that the "Chairman has completed their demolition work fully up to their satisfaction as there was no legal steps on behalf of the respondent nos.7 to 11 herein to obstruct that said illegal demolition work" which clearly indicates that pursuant to the order of demolition dated 29th January, 2011 the respondent authorities conducted 70 per cent of the demolition work in respect of the illegal unauthorised construction raised by the private respondents on the petitioner's property but unfortunately without any reason the authorities left the remaining portion of the unauthorised construction undemolished which gave rights to the petitioner to seek mandamus for carrying out demolition work by virtue of the demolition order dated 29th January, 2011 of the remaining undemolished portion of the illegal construction raised by the private respondent nos. 7 to 11 to the petitioner's properties-in-question.
18. I also cannot ignore the fact that demolition order dated 29th January, 2011 was issued by the Chiarman, Kharagpur Municipality on the basis of the resolution adopted by the Board of Councilors on 25th November, 2010.
19. It is very much surprising that the authority carried out the work of demolition up to 70 per cent on the basis of demolition order but what prevented them to demolish the remaining portion of the unauthorised construction is not explained by the authorities. The present writ peition was filed for carrying out the demolition work in respect of the undemolished portion of the unauthorised construction. It is settled proposition of law that illegal, unauthorised construction without any sanction plan should be demolished by the authorities as has been hled in Hon'ble Supreme Court decision in Dipak Mukherjee's Case (Supra). Therefore, Maula Bux Case (Supra) relied by Mr. Basu has no manner of application in the present case in hand. The unauthorised constructions are social menace which must be demolished wherever sighted and wherever complained of and delay in demolition such constructions would adversely affect the civilised society and its structure. This evil therefore must be nipped in the bud.
20. The submissions advanced by Mr. Basu in respect of suppression of pending suit have no substance pertaining to the present writ petition as the eviction suit filed by the petitioner against the private respondents has no nexus with the present writ petition as the present writ petition was filed seeking mandamus for carrying out the order of demolition dated 29th January, 2011 pertaining to remaining undemolished part of the unauthorised construction on the petitioner's properties. Therefore, after considering the proposition of law laid down by the Hon'ble Supreme Court in Dipak Mukherjee's Case (Supra) Paragraphs 8, 26, and 28 I have no hesitation to hold that the respondent authority illegally and arbitrarily failed to carry out the entire demolition work in respect of the unauthorised construction made in the petitioner's properties by the private respondents pursuant to the demolition order dated 29th January, 2011.
21. That being the position, respondent Municipal Authorities particularly the respondent no.2 herein and its delegates are hereby directed to forthwith carry out the notice of demolition being no. AM/256/PW dated 29th January, 2011 and to demolish the remaining part of the unauthorised construction made by the private respondents at the petitioner's properties comprised in R.S. Dag Nos 440, 441, 434/971, correspondent to L.R. Dag No.1439 and 1495, Mouza- Kausallya, Police Station-Kharagpur, District-Paschim Medinipore.
22. With this above observations and directions the writ petition is allowed without any order as to costs.
23. Urgent photostat certified copy of this Judgment, if applied for, be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J) Later After delivering the judgment and order, Mr. Uttam Kr. Bhattacharya, learned Advocate appearing for the respondent nos. 7 to 11 prays for stay of operation of the judgment and order.
Such prayer is entertained and rejected.
(Samapti Chatterjee, J)