Calcutta High Court (Appellete Side)
Sri Sanjay Kumar Gupta & Ors vs Howrah Municipal Corporation & Ors on 24 November, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Biswanath Somadder
and
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
M.A.T. No. 617 of 2017
With
C.A.N. No. 4053 of 2017
Sri Sanjay Kumar Gupta & Ors.
Vs.
Howrah Municipal Corporation & Ors.
For the Appellants / Applicants : Mr. Jishnu Saha,
Mr. Arindam Banerjee,
Mr. Animesh Paul,
Mr. Rahul Poddar,
Mr. S. Shroff
............Advocates
For Howrah Municipal Corporation : Mr. Nayan Chand Bihani,
Ms. Papiya Banerjee (Bihani)
...........Advocates
For the State : Mr. Tapan Kumar Mukherjee, AGP,
Mr. Somnath Naskar
..........Advocates
For the Respondent No.7 : Mr. Aniruddha Chatterjee,
Mr. Amarta Ghose, Mrs. Rituparna De Ghose, Mr. Srijib Chakraborty, Ms. Rimpa Rajpal ...........Advocates Heard on : 28.08.2017 & 30.08.2017.
Judgement on : 24.11.2017 Ashis Kumar Chakraborty, J. :-
The instant appeal, at the instance of the writ petitioners is directed against the judgment and order dated March 23, 2017 passed by a learned Single Judge of this Court in W.P. No. 1291(W) of 2016, with C.A.N. 3597 of 2016.
The facts and circumstances which give rise to this appeal are briefly stated as follows:
The appellants are the owners of their respective flats on different floors of three buildings at premises no. 295/2, G.T. Road (North), Salkia, Howrah (hereinafter referred to as "the said premises"). It was the private respondent no. 7, who constructed the said three buildings towers each of five floors (G+4) as per the building plan sanctioned by the respondent no. 1, Howrah Municipal Corporation and sold the various flats of the said three buildings to the respective appellants. The appellants have also obtained their names mutated in the records of the respondent no. 1 corporation in respect of their respective flats and they are also paying rates and taxes in respect of their respective flats to the respondent no. 1. On September 9, 2015 the appellant no. 1 filed a representation before the respondent no. 2, being the Commissioner of the respondent no. 1, alleging that the respondent no. 7 has been illegally, without any sanctioned plan, constructing two additional floors, that is, 5th and 6th floors of each of said three buildings. Having found no response to his said complaint, the appellant no. 1 filed a writ petition, being W.P. No. 24959(W) of 2015 (hereinafter referred to as "the first writ petition") before this Court. On October 15, 2015 the said first writ petition was taken up for hearing by a learned Single Judge of this Court, in presence of the learned advocates representing the present appellant no.1, the respondent nos.1, 2 and 3, as well as the private respondent no.7, respectively. By an order dated October 15, 2015 the learned Single Judge disposed of the said first writ petition by directing the respondent no. 2, to consider and dispose of the said representation of the appellant no. 1 dated September 9, 2015, after causing a physical inspection of the alleged unauthorised construction, by a competent person, within a period of eight weeks from the date of communication of the said order. It was recorded in the said order that on being asked by the Court whether the private respondent has sanctioned building plan, the learned advocate representing the private respondent could not give any satisfactory answer. The learned Single Judge directed that in the event the respondent no. 2 is of the opinion that the allegation of the writ petitioner is correct, the appropriate authority shall pass necessary and consequential orders to that effect in accordance with law. It was further directed that if the respondent no. 2 is of the view that the construction being carried on by the private respondent is in accordance with the sanctioned plan, he shall dispose of the writ petitioner's representation by passing a reasoned order. The private respondent was also directed not to make any further construction or create any third party interest or encumber the property in any manner whatsoever till the representation of the writ petitioner (the appellant no. 1 herein) is disposed of by the authorities of the respondent no. 1 corporation.
The respondent no. 2 was directed to see to it that the said order is not violated in any manner by the private respondent. Thereafter, on December 21, 2015 the respondent no. 2 held a hearing which was attended by the appellant no. 1 and the private respondent no. 7. By an order dated December 21, 2015 the respondent no. 2 recorded the statement of the respondents that for the unauthorised construction of the 5th and 6th floors, retention fees to the tune of Rs. 29.85 lakhs was paid in the municipal exchequer on October 16, 2015 and further construction of the 6th floor is going on unauthorisedly. The respondent no. 2 directed the SAE (Building) of the respondent no. 1 to visit the place of occurrence immediately and submit a report regarding the updated position of the building and also the fact regarding acceptance of the retention fees by the corporation for unauthorised construction, if any, within seven days from the date of receipt of the said order. On January 4, 2016 the respondent no. 2 held a further hearing and directed the Executive Engineer (Building) of the respondent no. 1 to cause an enquiry into the present status of the said building and submit a report to him if retention fees were actually paid by the offenders. The respondent no. 2 also directed the Law Officer of the respondent no. 1 to justify by virtue of the relevant order and judgments of the relevant courts whether acceptance of retention fees by the respondent no. 1 is legal or illegal. The said Executive Engineer (Building) and the Law Officer, were directed to send their respective reports to the respondent no. 2 within seven days from the date of receipt of the said order. On January 20, 2016 the respondent no. 2 passed an order, the relevant portion whereof is extracted hereinbelow :-
".................The dispute arose regarding an unauthorised construction at premises on 295/2, G.T. Road (North), Howrah. Learned Advocate on behalf of the petitioner submitted that primarily the building was constructed according to the sanctioned plan of G+4 by HMC. But at present, two floors of G+5 and G+6 are being constructed unauthorisedly without any sanction.
Ld. Advocate on behalf of the respondents submitted that although G+5 and G+6 of the same building were constructed unauthorisedly but subsequently according to the order of the Authorities of HMC retention fees of 29.85 lakh was paid by the respondents in favour of HMC on 16/10/2015. He further argued that payment of retention fees to HMC indicates that the unauthorised construction have been validated.
Therefore, on further enquiry it has been found that there are 3(Three) blocks of Building out of which for 2 (Two) blocks, construction of extra floors (2 floors, 5th & 6th) have been regularise on payment of Rs.29,85,071/- (Rupees Twenty Nine Lakhs Eighty Five Thousand Seventy One only).
It is, therefore, ordered that other than these two blocks where construction of extra two floors, as cited above, have already taken place and for which retention fees have already been accepted by HMC, work on the other block excepting these two will be kept suspended in compliance with the order of the Hon'ble High Court."
Challenging the above order dated January 20, 2016 passed by the respondent no. 2, the present appellants filed the writ petition, being W.P. No. 1291(W) of 2016 (hereinafter referred to as "the said second writ petition") praying for, inter alia, a writ of mandamus to quash and set aside the said order dated January 20, 2016 and direct the respondent no. 1 Corporation and/or the concerned respondents to initiate a proceeding for demolition of the illegal and unauthorised construction of the 5th and 6th floors of the said three buildings. In the second writ petition, the appellants also filed an application being CAN 3597 of 2016 and on July 13, 2016 a learned Single Judge of this Court passed an interim order restraining the private respondent no. 7 from making any further illegal or unauthorised construction at the said premises and from giving any effect to the impugned order dated January 20, 2016 passed by the respondent no. 2 for a period of ten weeks. Subsequently, the said interim order was extended till disposal of the writ petition. In the second writ petition, an affidavit- in-opposition was filed on behalf of the respondent nos. 1 to 4 namely, the Howrah Municipal Corporation, its Commissioner, the Mayor and the Executive Engineer, respectively alleging that the order dated January 20, 2016 was passed by the respondent no. 2 strictly in accordance with law and that the fees for the construction made in deviation of the plan and subsequent submission of "as made plan" was originally calculated at Rs. 37,31,339/-, which was subsequently reduced to Rs. 29,85,071/- on October 14, 2015 and October 15, 2015, respectively by the Corporation. The respondent nos.1 to 4, in their said affidavit-in-opposition, disclosed a document that on October 13, 2015 the respondent no. 2 had proposed imposition of penalty on the respondent no. 7 to regularise the illegal construction of the 5th and 6th floors of the two buildings at the said premises, which was approved by the respondent no. 3 on October 14, 2015 and thereafter, on October 14, 2017 the regularisation fee payable by the respondent no. 7 was calculated to be Rs. 37,31,339/- which was subsequently, on October 15, 2015 reduced to Rs. 29,85,071/-. The writ petitioners filed their affidavit in reply, alleging that construction of the 5th and 6th floors of the said buildings by the respondent no. 7 is wholly illegal, there was no scope in law for the respondent no. 2 to regularise such illegal construction by imposing any fee and that the impugned order dated January 20, 2016 passed by the respondent no. 2 is void. The respondent no. 7 in its affidavit-in-opposition admitted that appellants are the owners of the respective flats of the three blocks at the said premises and the appellant no. 1 is the owner of the flat on the 4th floor of one of the blocks with roof rights of that block, but it alleged that Rule 61 of the Howrah Municipal Corporation Building Rules of 1991 (hereinafter referred to as "the HMC Building Rules") allowed regularisation of construction of the 5th and 6th floors of the said building on "as made" plan, if deviations relating to the same were submitted during execution of work. The appellants filed an affidavit in reply to the affidavit-in-opposition filed by the respondent no. 7 denying all material allegations made by the respondent no. 7.
By the impugned judgment and order dated March 23, 2017 a learned Single Judge held that as per the provisions of the HMC Building Rules and Regulations admittedly, prior sanction has to be obtained by submitting revised plan and by not doing so, the respondent no. 7 has violated the provisions of law to that extent only, but the same was submitted before construction was over and further the same was duly regularised by the corporation as the said construction is within the permissible limits. The learned Single Judge further held that approving the revised plan and regularising the structures thereon by compounding the same, by charging the retention fee amounts to post sanction of the plan and by doing so the Municipal Commissioner has only committed a procedural irregularity and the latter was within its jurisdiction while compounding the revised plan and regularising the structures. The learned Single Judge, therefore, did not find any irregularity or infirmity in the said order dated January 20, 2016 passed by the respondent no. 2 to rectify the procedural irregularity of the respondent no. 7 during the course of construction of 5th and 6th floors. On these findings, the learned Single Judge held the writ petition of the appellants to be devoid of any merit and dismissed the same. Consequently, the application, being CAN 3597 of 2016 also stood disposed of.
Assailing the impugned judgment and order, Mr. Jishnu Saha, learned Senior Advocate appearing for the appellants submitted that in the order dated January 20, 2010 the respondent no. 2 has not disclosed any relevant provision of law which conferred power on itself to regularise the unauthorised construction of the 5th and 6th floors of the two buildings at the said premises. It was argued that it is well-settled law that when a statutory functionary makes an order based on certain norms, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In this regard, the appellants relied on the decisions of the Supreme Court in the cases of Mohinder Singh Gill & Anr. vs. Chief Election Commissioner, New Delhi & Ors. reported in 1978 (1) SCC 405 and Dipak Babaria & Anr. vs. State of Gujarat & Ors. reported in (2014) 3 SCC 502. It was strongly contended that in the instant case, when the order dated January 20, 2016 passed by the respondent no. 2 does not disclose any reason for regularising the unauthorised construction of the 5th and 6th floors of the two buildings at the said premises, the learned Single Judge erred in law to uphold the said order on the grounds alleged in their affidavit-in-opposition filed by the respondent no. 7. According to the appellants, on this ground alone the impugned judgement and order passed by the learned Single Judge is liable to be set aside and the writ petition be allowed by us.
Without prejudice to the above contention, it was further argued that in the instant case, any decision of the respondent no. 2 to regularise the admitted unauthorised construction of the 5th and 6th floors of the two buildings, without any notice and opportunity of hearing to the appellants, who are admittedly the owners of the various flats of the said buildings, is void. It was further submitted that on October 15, 2015 when the first writ petition was taken up for hearing by the learned Single Judge, neither the respondent nos. 1 to 4 nor the respondent no. 7 informed the learned Single Judge that on October 13, 2015 and October 14, 2015 the respondents nos. 2 and 3 had already decided to regularise unauthorised construction of the 5th and 6th floors of two of the said buildings at the said premises, by directing the respondent no. 7 to pay retention fees. Therefore, according to Mr. Saha, the respondent nos. 1 to 4, as well as the respondent no. 7 obtained the said order dated October 15, 2010 in the first writ petition by suppressing the material facts from the learned Single Judge, as well as by misleading the Court. It was further submitted that even by the order dated January 4, 2016 the respondent no. 2 directed the Law Officer of the respondent no. 1 to justify by virtue of the relevant orders and judgments of relevant courts whether acceptance of retention fee by the corporation is legal or illegal, but from the order dated January 20, 2016 passed by the respondent no. 2 it is evident that the Law Officer of the respondent no. 1 could not produce any decision of any court conferring power on the Corporation to accept the alleged retention fee from the respondent no. 7 in the present case. By the order dated October 15, 2015 passed in the first writ petition the learned Single Judge of this Court specifically directed the respondent no. 2 that if he is of the opinion that the allegation of the petitioner about the construction of the 5th and 6th floors of the said buildings by the respondent no. 7 without obtaining prior sanctioned building plan is correct, the appropriate authority shall pass necessary and consequential orders to that effect in accordance with law. It was, therefore, urged that when the respondent no. 2 found that the respondent no. 7 had constructed the 5th and 6th floor of each of the said three buildings without obtaining any prior sanctioned building plan and the Law Officer of the respondent no. 1 could not disclose any decision of any Court of law justifying acceptance of retention fee by the corporation for unauthorised construction, the respondent no. 2 could not pass the said order dated January 20, 2016 allowing the respondent no. 7 to construct the 5th and 6th floors of the two buildings of the said premises on the ground that the latter had paid the retention fees. Relying on the Division Bench decision of this Court in the case of Shital Chandra Bodhak vs. Sukumar Dey reported in 2012 (5) CHN (Cal) 146, it was contended that when the respondent no. 7 constructed the 5th and 6th floors of the each of the said three buildings without first obtaining any sanctioned plan under Section 175 of the HMC Act, 1980 the respondent nos. 1, 2 and 3 ought to have taken steps for demolition of the 5th and 6th floor of each of the said three buildings. In support of their contention, the appellants also relied on the decisions of the Supreme Court in the case of Dipak Mukherjee vs. Kolkata Municipal Corporation reported in (2013) 5 SCC 336. Urging all these grounds the learned counsel for the appellants submitted that any alleged decision of the respondent no. 2 to regularise the unauthorised construction of the 5th and 6th floors of the said building is void and the learned Single Judge erred by not directing the respondent no. 2 and 3 to demolish such unauthorised construction.
However, Mr. Anirudhdha Chatterjee, learned Advocate appearing for the respondent no. 7 submitted that since the permissible FAR at the said premises was not covered within the built up area of the said buildings upto the 4th floor, the respondent no. 7 submitted a plan for sanctioning "as made plan" of the 5th and 6th floors on two blocks at the said premises covering an area of 531.05 sq. meter, respectively under Rule 61 of the HMC Building Rules, 1991 and the respondent no. 2 Commissioner, after being fully satisfied of the permissible FAR and that construction of the additional floors shall not affect the structural stability of any of two buildings, the respondent no. 4 regularised construction of the 5th and 6th floors on the two buildings by imposing retention fees. It was urged that respondent no. 7 had not obtained any completion certificate, under Rule 62 of the HMC Building Rules in respect of any of the three buildings and, therefore, it fulfilled the condition under Rule 61 of the HMC Building Rules and the construction of the 5th and 6th floors of the said buildings were lawfully regularised by the respondent nos. 2 and 3. He further submitted that on October 16, 2015 the respondent no. 7 paid the retention fee of Rs.29,85,071.00/- to the respondent no. 1 and thereafter, a revised sanctioned plan in respect of the two buildings has been issued by the respondent no. 1 corporation. It was strenuously urged on behalf of the respondent no. 7 that the order dated January 20, 2016 was not vitiated by any illegality and the learned Single Judge was absolutely correct to dismiss the appellant's writ petition. The respondent no.7 could not, however, explain as to why on October 15, 2017 when the first writ petition was taken up for hearing, the respondent no. 7 did not disclose before the learned Single Judge, the alleged decision of the respondent nos. 2 and 3 taken on October 13 and 14, 2015 to regularise the unauthorised construction of the 5th and 6th floor of the three buildings upon payment of retention fees.
Mr. Nayan Bihani, learned advocate appearing for the respondent nos. 1 to 4 did not make any submission either to support the impugned order passed by the learned Single Judge or to justify the decision of the respondent nos. 2 or 3 to regularise the unauthorised construction of the 5th and 6th floors of the buildings. He, however, submitted that when the first writ petition was taken up for hearing and the said order dated October 15, 2015 was passed by the learned Single Judge of this Court, he had no instruction from any of the respondent nos. 1 to 4 that on October 13, 2015 the respondent no. 2 had already proposed to regularise the unauthorised construction of the 5th and 6th floor of the said building at the said premises by imposing retention fee on the respondent no. 7 and the same was approved by the respondent no. 3 and on October 14, 2015 the said retention fee was already calculated by the concerned officer of the respondent no. 1 corporation.
We have carefully considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. Admittedly, the appellants are the owners of the various flats of the five storied buildings (G+4) at the said premises constructed by the respondent no. 7 as per the building plan sanctioned by the respondent no. 2 under Section 175 of the HMC Act, 1980 and they are in possession of the respective flats. The respondent no. 7 in its affidavit-in-opposition has also admitted that the appellant no. 1 is the owner of a flat on the 4th floor of one of the said buildings with roof rights of that building.
The appellant no. 1, filed the first writ petition before this Court alleging that the respondent no. 7 is proceeding with unauthorised construction of the 5th and 6th floor of the said buildings and in spite of a complaint lodged by him, the respondent no. 2, being the competent authority refused to take any step to stop such unauthorised construction. On October 15, 2015 a learned Single Judge of this Court took up the first writ petition for hearing, in presence of the learned advocates representing the appellant no. 1 / writ petitioner, the Commissioner of HMC, as well as the respondent no. 7. From the order dated October 15, 2015 passed in the first writ petition it is clear that when a query was made by the Court, if the private respondent has a sanctioned building plan, the learned advocate for the private respondent could not give any satisfactory answer, nor any of the other respondents informed the learned Single Judge of any alleged decision already taken by the respondent no. 2 and the respondent no. 3 on October 13, 2015 and October 15, 2015, respectively to regularise the unauthorised construction of the 5th and 6th floor of the said buildings at the said premises upon payment of retention fee by the respondent no. 7. As per the document disclosed by the respondent nos. 1 to 4 in their affidavit-in-opposition filed in the second writ petition, on October 16, 2015 the respondent no. 7 had deposited the retention fee of Rs. 29,85,071/- with the respondent no. 1. It is not the case of the respondent no. 7 in its affidavit-in-opposition filed in the second writ petition that it was informed of the alleged decision of the respondent nos. 1 to 3 for payment of the said retention fee of Rs. 29,85,071/- for regularisation of the unauthorised construction of the 5th and 6th floor of the said buildings only after passing of the said order dated October 15, 2015 in the first writ petition. On these facts, we find that the respondent nos. 1 to 4 and the respondent no. 7 had obtained the said order dated October 15, 2015 in the first writ petition by suppressing material facts from the learned Single Judge. In the present case, the conduct of the respondent no. 2 as well as the private respondent no. 7 before the learned Single Judge on October 15, 2016, during hearing of the first writ petition, amounted to obtaining an order by misleading the Court, with the sole motive to avoid interference with the process of regularisation of the unauthorised construction by this Court.
Further, in the affidavit-in-opposition filed by the respondent nos. 1 to 4 in the second writ petition before the learned Single Judge, nothing was disclosed to substantiate the statutory provisions invoked by the respondent nos. 2 and 3 for their decision to regularise the admitted unauthorised construction of the 5th and 6th floor of the two buildings of the said premises by the respondent no. 7. By the order dated January 4, 2016 the respondent no. 2 directed the Law Officer of the respondent no. 1 Corporation to justify by virtue of a relevant order and judgment of relevant Courts whether acceptance of retention fee by the corporation is legal or illegal. From the order dated January 20, 2016 passed by the respondent no. 2 it is evident that the Law Officer of the respondent no. 1 could not submit any relevant order or judgment of any Court of law to substantiate that acceptance of retention fee by the respondent no. 1 from the respondent no. 7 is lawful. Even in the said order dated January 20, 2016 the respondent no. 2 has not referred to any provision of the HMC Act, 1991 or to any Rule of the HMC Building Rules or any other legal provision to justify the impugned actions of itself or of the respondent no. 3 to regularise the admitted unauthorised construction of the 5th and 6th floor of the said building at the said premises, by the respondent no. 7 upon payment of retention fee by the latter. Accordingly, in view of the settled principle of law as laid down by the Supreme Court in the cases of Mohinder Singh Gill (supra) and Dipak Babaria (supra) we find that the learned Single Judge clearly erred in law to hold that the respondent no. 2 was within its jurisdiction to regularise the admitted unauthorised construction of the 5th and 6th floors of the two buildings by the respondent no. 7 upon payment of retention fee by the latter and to uphold the order dated January 20, 2016 passed by the respondent no. 2 only on the grounds urged by the respondent no. 7 in its affidavit-in-opposition. Further and in any event, the purported decision of the respondent no. 2 to regularise the admitted unauthorised construction of 5th and 6th floor of the said building, without any notice or opportunity of hearing to the present appellants, the admitted owners of the various flats of the said building, is void.
For all the foregoing reasons, we find that the decision of the respondent no. 2, the competent authority to regularise the admitted unauthorised construction of the additional 5th and 6th floors of the three buildings at premises no. 295/2 G.T Road (North) Salkia, Howrah was illegal. Similarly, the order dated January 16, 2016 passed by the respondent no. 2 is also void and the learned Single Judge was clearly in error of law to hold that the writ petition filed by the appellants is devoid of any merit and reject the writ petition. We, therefore, allow the appeal and set aside the impugned order dated March 23, 2017 passed by the learned Single Judge in W.P. 1291(W) of 2016.
The writ petition, being W.P. 1291(W) of 2016 also stands allowed. The order dated January 20, 2016 passed by the respondent no. 2 is set aside.
The respondent no. 2, the commissioner of the respondent no. 1 Corporation is directed to forthwith take steps for demolition of the 5th and 6th floors of the three buildings (towers) of premises no. 295/2 G.T. Road (North), Salkia, Howrah.
The respondent no. 7 is permanently restrained from carrying out any construction work at any of the three buildings/ towers at premises no. 295/2 G.T. Road (North) Salkia, Howrah in any manner whatsoever.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis upon compliance with all requisite formalities.
I agree with the conclusion, (BISWANATH SOMADDER, J.) (ASHIS KUMAR CHAKRABORTY, J.)