Calcutta High Court (Appellete Side)
Smt. Sandhya Pal & Anr vs The Kolkata Municipal Corporation & Ors on 17 December, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Rajasekhar Mantha
W.P.No.11225(W) of 2018
Smt. Sandhya Pal & Anr.
-vs-
The Kolkata Municipal Corporation & Ors.
Mr. Saptangsu Basu
Mr. Subhabrata Das
Mr. Ashok Kumar Ghosh ....for the petitioners
Mr. Tapas Kumar Adhkari
Mr. Somraj Dhar ...for the State
Mr. Biswajit Mukherjee ...for the Corporation
Mr. Jishnu Chowdhury
Mr. Subrata Goswami
Mr. Bipul Roy ...for the respondent no.9
Heard on : December 17, 2018 Judgment on : December 17, 2018 Rajasekhar Mantha, J:
The main issue in the writ petition is with regard to construction effected by the private respondent at premises no.26A, Brindavan Bose Lane, Ward No.12(2), Kolkata - 700 006 (the said premises).
The private respondent had purchased the said premises which had an existing construction of a residential house. The original structure was constructed on the basis of a sanctioned plan of the year 1947. The property was purchased by the private respondent sometime in October 2007.
Admittedly, the private respondent made additional construction after the year 2007 replacing an iron spiral staircase with a cemented staircase which was increased from the existing height from the first floor to the second floor of the building. In addition thereto, a new room has been constructed on the roof. There are other pillars found to have been also additionally constructed. Some of such pillars have been found by the inspecting officer to be unauthorised. The most vital fact to be noticed is that all these constructions afresh post 2007 have been effected without even a whisper to the Kolkata Municipal Corporation (KMC). It is now extremely well settled and undisputed that changes made to even a pre-existing and sanctioned structure without a proper sanction from the KMC, is an unauthorised construction..
There was no sanctioned plan whatsoever allowing such changes to be made. Bad blood has remained between the petitioner and the private respondent who are neighbours. There are other neighbours also who claimed to be effected by reason of the unauthorised construction. A demolition proceeding was initiated under section 400 of the Kolkata Municipal Act, 1980, inter alia, at the instance of the writ petitioner.
In course of hearing of the demolition proceedings, the first Special Officer (Building) found as follows:-
"It is true that the construction so far made by the P.R. can not be said to be minor one but at the same time does not look to be so grave in nature. It appears to me that the P.R. constructed the same out sheer necessity. So, considering this aspects of the matter I am inclined to take a sympathetic and humanitarian view so that the constructed portion can be regularised. It is also pertinent to mention here that in course of hearing it was submitted on behalf of the P.R. that she was ready to pay compensation to the complainants for the damage cause to their building. It is expected that the P.R. will surely keep her words in the matter of paying compensation to the complainants. So, considering the above facts and circumstances I am of the view that there is sufficient cause in favour of the P.R. for not passing any order of demolition and allowed to retain the same of course subject to comply with certain preconditions and I believe that this will meet the ends of justice. So, the point is decided accordingly. Hence, ordered that no order for demolition is hereby passed in respect of impugned unauthorised construction subject to comply with the following preconditions, within 30 days from the date of communication of this order. Those conditions are (1) P.R. must produce a certificate from any KMC panelled Structural Engineer certifying that the structural stability and the foundation of the impugned construction are safe and sound and the materials used as well as workmanship are as per the latest edition of N.B.C. of India, (2) she must furnish an affidavit declaring on oath that she will not make any construction whatsoever in the impugned premises without prior sanction from the KMC authority and (3) she must pay the necessary retention charges of the KMC as calculated by the deptt. in a separate sheet of paper attached and supplied with this final order. on non compliance of either of the conditions within the above stated specified period the KMC authority shall demolish the same at the cost and at the risk of the P.R. Let the copy of this order be delivered to the parties concerned for information and necessary action."
The Building Tribunal (Tribunal) thereafter finding more favour to the private respondent went on to hold that there is no violation of any rules whatsoever in the facts and circumstances. Before entering into the manner in which the two authorities have decided the matter a moot question that arises is as to whether the authorities are conferred with any discussion to order rectification in lieu of demolition under the Kolkata Municipal Corporation Act, 1980 (KMC Act) and the Kolkata Municipal Corporation Rules, 1990 (Rules of 1990).
Mr Saptangsu Basu, Learned Senior Advocate appearing for the petitioners would first rely upon a judgment of the Hon'ble Supreme Court in the case of Dipak Mukherjee v. Kolkata Municipal Corporation & Ors. reported in AIR 2013 SC 927. A two-Judge Bench of the Hon'ble Supreme Court was seized of a complaint of a neighbour of a premises where unauthorised construction was raised in a multistoried building by a promoter. There was allegation of unauthorised construction outside the scope of a sanctioned plan in the said multistoried building. The unauthorised portion had also been sold to third parties. The Supreme Court considering the scope and extent of sections 400 and 401 of the 1980 Act and the Rule 25 of the Rules, 1990 went on to hold that any unauthorised and illegal construction in violation of a building plan warrants demolition. Reasons have been set out therefor.
Learned counsel for the petitioners would first urge that the language of sections 400 and 401 of the 1980 Act as interpreted by the Supreme Court left no option to the municipal authorities, seized of a complaint of unauthorised construction or without even a sanctioned plan, than to order demolition. The expression "municipal commissioner may" according to counsel for the petitioners must be read as "shall" and hence both the Special Officer (Building) and the Tribunal had committed jurisdictional errors. They should have ordered demolition according to the writ petitioners.
Mr. Basu argued that the said 1980 Act came to be amended w.e.f. 15th January, 2015 to empower the KMC to rectify and regularise unauthorised construction. The KMC according to Mr. Basu thus did not have authority to regularise any unauthorised construction as in the instant case prior to 2015.
Per contra, Mr. Chowdhury, counsel for the private respondent and Mr. Biswajit Mukherjee, counsel for the KMC would rely upon a judgment of a full Bench of this court in the case of Purusottam Lalji v. Ratan Lal Agarwalla reported in AIR 1972 Cal. 459 (FB). The full Bench was interpreting the scope of section 414 of the Calcutta Municipal Act, 1951. The said section is verbatim similar to section 400 of the KMC Act, 1980. Interpreting the said section 414(supra) the full Bench of this court had held that the expression "municipal commissioner may" undoubtedly vests discretion in the commissioner to order regularisation of unauthorised construction outside the scope of a sanctioned plan by permitting rectification albeit on conditions.
Counsel for the Corporation would argue as held by Justice G.P. Singh (retd.) in his book of Principles of Statutory Interpretation at p.220 of the said book as follows:-
"As already noticed, use of same words in similar connection in a later statute gives rise to a presumption that they are intended to convey the same meaning as in the earlier statute. On the same logic when words in an earlier statue have received an authoritative exposition by a superior court, use of same words in similar context in a later Act will give rise to a presumption that Parliament intends that the same interpretation should also be followed for construction of those words in the later statute. The rule as stated by Griffith, C.J. and approved by the Privy Council (Lord Halsbury) is: "When a particular form of legislative enactment, which has received authoritative interpretation whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them. The rule in the form stated by James, L.J. and approved by Lord Buckmaster is as follows: "When once certain words in an Act of Parliament have received a judicial construction I one of the superior courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them."
In view of the aforesaid observations of Justice G.P. Singh (retd.), I have no hesitation in my mind to hold that the interpretation of section 400 of the 1980 Act must be made similar to the interpretation given by the full Bench of this court in Purusottam Lalji's case (supra) to section 414 of he 1956 Act thereby meaning that Municipal Commissioner under the KMC Act, 1980 and authorities thereunder have the discretion to, in lieu of demolition, order rectification land/or changes.
In the case of Dipak Mukherje (supra) the Hon'ble Supreme Court had the occasion to consider both sections 400 and 401 of the KMC Act, 1980 and rule 25 of the Rules of 1990. While the Supreme court upheld the discretion for regularisation vested with the Corporation, it was laid down following settled principles of law on the scope of exercise of discretion by administrative authorities, that the same must be exercised on the basis of available facts and with sound reasons. A view similar to that one taken by the full Bench of this court in Purusuttam Lalji's case (supra) was taken earlier by the full Bench in the case of Renuka Patel v. S.C. Guha reported in AIR 1978 SC 457, particularly at para.16 of the judgment.
The Purusottam Lalji's case (supra) as well Dipak Mukherjee's case (supra) came to be considered by a co-ordinate Bench of this court in the case of Dhriti Kanta Lahiri Chowdhury v. Kolkata Municipal Corporation & Ors. being a judgement dated October 31, 2014 delivered in WP No.17155(W) of 2013. While analysing inter alia the two decisions (supra) of the Hon'ble Supreme Court, the co-ordinate Bench reiterated the position that discretion is in fact vested in the municipal commissioner either to order demolition of unauthorised and illegal construction or regularise the same for sufficient reasons.
Counsel for the private respondent also has relied upon a decision of a co- ordinate Bench of this court in the case of Keshab Prasad Shaw v. South Dum Dum Municipality & Ors. reported in 2012 SCC online Cal. 7324. In the said case the court was seized of a matter where after deviation from an existing plan a revised plan was submitted in terms of rule 31 of the 1990 rules aforesaid. It is in that light that the matter came to be remanded back to the Board of Councillors for decision afresh in the matter.
The facts of the instant case are substantially different. In each of the cases referred to by the parties there was an existing sanction plan issued by the Municipal Corporation and deviations occurred unauthorisedly thereafter. In the instant case when the original plan was sanctioned and the building was constructed in the year 1949 or thereabouts when the private respondent was most even likely not even born. Having purchased the property in the year 2004, the private respondent unilaterally surreptitiously and without obtaining any sanction whatsoever for additional construction flagrantly went on to make substantial changes in the said premises. The said act by itself is grossly illegal and warranted major penalties available under the 1980 Act.
The municipal authorities, since there was no sanctioned plan whatsoever also came to lodge a complaint with the local police authorities against the private respondent. It was also argued that there was also violation of a stop- work notice issued under Section 401 of the 1980 Act. However, there is no clear evidence before this court in that regard, this court does not wish to enter into such question. The audacity, impunity and blatant disregard for law demonstrated by the private respondent is shocking and cannot be ignored by this court.
As already indicated hereinabove that a statutory authority vested with discretion must exercise the same with suitable materials available before it and a discretionary order must equally demonstrate reasonableness and propriety. The first authority's failure in this regard is clear and evident from the use of the expression "sympathetic consideration" and "humanitarian considerations" while allowing rectification and condoning a gross illegality. The said Special Officer (Building) went on to allow rectification even after holding that the unauthorized construction cannot be deemed as minor. Sympathetic consideration have no place while exercising discretion conferred by any statute that too a statute regulating construction activity in a municipal area.
The authorities cannot ignore the dicta of the Supreme Court in Dipak Mukherjee's case laid down in para 8.
"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 laws are enforced only against poor and all compromises are made by the State machinery when it is require to deal with those who have money power or unholy nexus with the power corridors."
The sketch plan prepared of the illegal construction that was existing for over sixty years may definitely be dangerous and may cause obstruction to persons residing in the immediate vicinity. It is however equally true that new buildings come up in place of old structures. Such buildings are permitted to meet the burgeoning demand for housing in the city of Kolkata. It is for this purpose that a proper prior sanction is all the more important in such cases. The obstruction to light and air raised by the writ petitioners therefore must be assessed in the context of the rules of the Corporation. Admittedly, in the instant case, a new staircase is constructed in place of old spiral staircase that too increasing in height from the first floor all the way to the second floor. The construction of the room on the roof is a new construction.
In the light of the above, I have no hesitation to hold that the two authorities below have completely misdirected themselves in passing the orders. The considerations set out therefor are preposterous and baffling.
It is important to note that some new pillars have been constructed which the first authority found to be new, to which the Tribunal surprisingly found to be existing. The difference in the factual findings between the two authorities is not supported by any reason. If the tribunal found that the Special Officer (Building) had marked a pillar in red showing that it was an unauthorised construction, the tribunal ought to have remanded the matter back to the first authority for fresh findings before turning around and stating that the said red marked pillar was not unauthorised. These striking facts are only a few instances indicated warranting interference by this Court with the orders of the Tribunal as well as the Special Officer (Building). A rectification of a mistake is conceived of and discretion conferred on the authorities under the 1980 Act but here is a case where a structure standing in the year 1949 or thereabouts has been changed in a major way without even a sanction plan. There are serious consequences on the building that may occur by reason of such changes. The two authorities in their misplaced and misconceived magnanimity have chosen to put blinkers in their eyes, in respect of the above.
For the reasons stated above, the order of the Building Tribunal are set aside. The order of the Special Officer (Building) is also set aside. The municipal authorities are directed to start afresh the process of assessing each and every fresh construction made including the pillars, staircase, walls, semi permanent structures and permanent structures in the said premises. After a sketch map is prepared in this regard by a committee comprising at least two persons, namely the Executive Engineer and the Chief Engineer (Building), the same shall be placed before the Special Officer (Building) for a suitable decision as regards whether the structure ought to be demolished or could be rectified suitably after strictly complying with all provisions of the KMC Act 1980 and the Rule of 1990.
Learned counsel for the private respondent submits that a sanctioned plan has been obtained after the order passed by the Special Officer (Building). The same was not placed before the Tribunal as is evident from its order. The Municipal Commissioner shall forthwith investigate into the mater as to how a sanctioned plan was granted in respect of an admittedly unauthorised construction and more so when legality of the construction made there being considered by two authorities under the Act. Suitable measures shall be taken in accordance with law by the municipal commissioner in this regard within two months from the date of communication of this order.
Since this court has found flagrant violation of law by the private respondent, a new owner of the premises in question, costs assessed at Rs.25,000 shall be paid by the said respondent to the writ petitioner.
The writ petition is allowed and disposed of.
Certified website copy of this order, if applied for, shall be given to the parties.
(Rajajsekhar Mantha, J) Subrata