Calcutta High Court (Appellete Side)
Smt. Gita Ghosal vs The Kolkata Municipal Corporation & Ors on 10 March, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
1
9.
10.03.2011.
d.d.
W. P. No.588 (W) of 2011
Smt. Gita Ghosal
Vs.
The Kolkata Municipal Corporation & Ors.
Mr. Ranjit Roy
........ For the Petitioner.
Mr. B. Basu Mallick
....... For Respondent Nos.8 to 11.
Mr. Kallol Bose ....... For Respondent No.12.
Mr. Achintya Banerjee, Ms. Era Ghose ..... For the K.M.C. In this writ application, the petitioner has sought orders directing the respondent nos.2 to 7 to demolish the illegal construction allegedly carried out by the Respondent No.12, at Premises No.16/1, Rajani Kanta Das Road, Kasba, Kolkata - 700
078. It is not in dispute that the petitioner along with other co- owners, impleaded as respondent nos.8 to 12, entered into an agreement for development of the premises in question.
In terms of the aforesaid development agreement, the cost of construction of the building was to be borne by the respondent no.12.
2In terms of the said development agreement, the respondent no.12 was to bear the cost of construction from his own resources, by raising finance from Banks and/or financial institutions and also by taking advance from intending purchasers of flats and shops.
An irrevocable Power of Attorney was admittedly executed by the petitioner along with the other co-owners authorizing the respondent no.12 to obtain sanction of a building plan and to take other requisite steps for development of the premises.
A building plan was sanctioned and construction commenced. After commencement of construction, it was found that there were certain deviations from construction of sanctioned plan. On behalf of the Municipal Commissioner, Mr. Banerjee submitted that the deviations were of such a nature that the same could be rectified by sanction of a revised building plan.
In other words, there was no infringement of any mandatory statutory requirement with regard to the building height, mandatory open space required to be maintained and the like. Except that construction was not strictly in accordance with sanction, there was no other contravention of the applicable Building Rules. On 8th September, 2010, a revised plan was submitted for sanction. The revised plan was apparently sanctioned on 4th October, 2010.
The attention of this Court has been drawn to a letter dated 19th August, 2010, from the petitioner to the respondent no.12 wherein the terms and conditions of the General Power of Attorney 3 executed in favour of the respondent no.12 have been set out and it is alleged as follows:
" Now I am finding that you are not looking my interest in accordance with the terms specified and also General Power of Attorney issued by me alongwith the aforesaid relatives in December, 2009. Under such circumstances I am withdrawing my Power from the last General Power of Attorney issued by the above. It is also to be noted that henceforth you are not my Constituent Attorney in respect of the aforesaid Premises No.65, Kalitala Main Road, Ward No.106, Kolkata-700078. "
After the revised plan was sanctioned, the petitioner executed and registered a Deed of Revocation of Power of Attorney.
By a letter dated 14th December, 2010 written to the Kolkata Municipal Corporation, the petitioner alleged unauthorized construction and on 18th December, 2010, a letter was written informing the Kolkata Municipal Corporation that the petitioner had revoked the registered irrevocable Power of Attorney by a registered Deed of Revocation.
The disputes between the petitioner and the private respondents, being the developer and the co-owners, are apparently of a private nature and the appropriate remedy, if any, of the petitioner would lie by way of a civil suit.
Under the provisions of the Kolkata Municipal Corporation Act, 1980, it is not for the Kolkata Municipal Corporation to resolve private disputes that may arise between owners and developers or to resolve private disputes that might develop between co-owners. The Kolkata Municipal Corporation is only to see whether 4 construction is carried on in accordance with a valid sanctioned plan and whether construction is otherwise in conformity with the applicable building rules.
In the writ petition, there are no particulars of the alleged deviations from sanctioned building plan. In paragraph 8, there is a sweeping averment, which is set out hereinbelow:
" the Respondent No.12 is carrying out an illegal construction on the said Premises No.16/1, Rajani Kanta Das Road, Ward No.106, P.S-Kasba, Kolkata-700078 without any knowledge of the Petitioner. Under such compelling circumstances, your petitioner draw the attention of the Respondent no.2, 5 & 7 for the illegal construction carried out by the said Respondent no.12. "
Apart from the allegations in paragraphs 8, 10 and 11, there is no other averment in the writ petition of illegal construction. The allegations of illegality in paragraphs 11 and 12 are also vague and devoid of particulars. Paragraphs 11 and 12 of the writ petition are set out hereinbelow:
" 11. That your petitioner states that on 18/12/2010 Petitioner had sent several representations to the Officer-in- Charge, Kasba Police Station, Kolkata- 700078, DG building, Kolkata Municipal Corporation and The Municipal Commissioner, Kolkata Municipal Corporation of 5, S.N. Banerjee Road, Kolkata-700013 informing the illegal construction of the building being Premises No-16/1 Rajani Kanta Das Road, Ward No- 106 of Kolkata Municipal Corporation, P.S. Kasba, Kolkata-700078. In this regard your petitioner states that the Respondent no 12 is carrying out the work against the sanction plan issued by the Municipality.
Xerox copy of the representations dated 18/12/2010 along with the photographs are collectively annexed herewith and marked as Annexure as "p - 6".5
12. That the petitioners state that the Respondent No. 2 to 7 are silent over the issue of such illegal construction. As such your petitioner is suffering vehemently. "
Mr. Roy, appearing on behalf of the petitioner, cited the judgment of the Supreme Court in Shanti Sports Club and Anr. Vs. Union of India (UOI) and Ors., reported in AIR 2010 SC 433 = (2009) 15 SCC 705. Paragraph 52 of the judgment relied upon by Mr. Roy is set out hereinbelow:
" Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial.
In contrast, scenario in the developing countries like ours is substantial different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye- laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and 6 other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who constructs buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plant or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer skin diseases of different types, asthma, allergies and even more dreaded diseases like cancers. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi MANU/SC/0082/1974 : 1974 (2) SCC 506; Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762; M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu MANU/SC/0999/1999 : 1999 (6) SCC 464; Friends Colony Development Committee v. State of Orissa MANU/SC/0933/2004 : 2004 (8) SCC 733; M.C. Mehta v. Union of India MANU/SC/8028/2006 : 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka MANU/SC/8005/2006 : 2006 (3) SCC 208. "7
It is difficult to appreciate how the observations are applicable in the facts and circumstances of the instant case. There is no allegation in the writ petition of contravention of any pollution norms or of contravention of any municipal or town planning laws, master plans, urban development plans. No case of infringement of any mandatory Building Rule has been made out. The allegations of contravention of building plan are also delightfully vague.
Mr. Roy also cited the judgment of the Supreme Court in the case of Municipal Corporation, Ludhiana Vs. Inderjit Singh and Anr., reported in AIR 2009 SC 195 = (2008) 13 SCC 506. In the aforesaid case, the Supreme Court held that if a proper show-cause notice been served upon the first respondent, in that case, he could have shown that the alleged violation of the provisions of the act was of negligible character which did not warrant an order of demolition. The judgment was rendered in the particular facts of the case and it is difficult to understand how the judgment is of assistance to the petitioner. Rather it supports the contention that minor deviations might be regularized.
Mr. Banerjee, appearing on behalf of the Municipal Corporation, asserts that the deviations have been regularized by sanction of a revised plan. The revised plan has been sanctioned as per the applicable building rules. The revised building plan, that has been sanctioned, does not infringe the applicable Building Rules. .
Whether the developer is, in fact, carrying out construction in accordance with the building plan, now sanctioned, or in contravention thereof, is a factual issue which cannot be decided upon affidavits by this Court exercising jurisdiction under Article 8 226 of the Constitution of India. The Kolkata Municipal Corporation is bound to ensure that the construction is strictly as per the revised building plan as sanctioned. Mr. Banerjee submits that unless the construction is strictly in accordance with the sanctioned plan, Completion Certificate would not be issued. Any construction in deviation of sanctioned plan would thus be at the developer's risk.
As observed above, the dispute of whether construction is in accordance with the building plan or not, cannot be decided by the Writ Court. Moreover, as observed above, in terms of the development agreement, the respondent no.12 was authorized to raise funds by obtaining finance from banks and financial institutions and also by taking advance from intending purchasers. Orders, as prayed for in the writ petition, would seriously prejudice bona fide purchasers, who might have paid advance for flats and/or shops intended to be purchased.
The writ application is disposed of by directing the Municipal Commissioner, Buildings and/or his authorized officer to ensure that there is no deviation from the sanctioned revised building plan. In the event any deviation from sanctioned plan is detected, appropriate action shall be taken in accordance with law.
Affidavits, not having been called for, the allegations in the writ petition shall be deemed not to have been admitted.
A copy of the revised sanctioned plan shall be made over to the petitioner by the Respondent No.12.
9Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Indira Banerjee, J )