Calcutta High Court
Arvind Kumar Jhunjhunwala vs Kolkata Municipal Corporation & Ors on 17 June, 2013
Author: I.P.Mukerji
Bench: I. P. Mukerji
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WP No. 5 of 2011
ARVIND KUMAR JHUNJHUNWALA
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
WP No. 235 of 2011
ARVIND KUMAR JHUNJHUNWALA
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 17th June, 2013.
Appearance:
Mr. B.Bhattacharya, Sr. Advocate Mr. Jishnu Saha, Advocate Mr. A.Banerjee, Advocate Mr. Asis Mukherjee, Advocate Ms. Arpita Saha, Advocate Mr. Achinta Banerjee, Advocate Mr. Gopal Chandra Das, Advocate Mr. Jayanta Mitra, Sr. Advocate Mr. Alok Kr. Ghosh, Advocate Mr. A.N.Mukherjee, Advocate Mr. D.N.Mukherjee, Advocate The Court: Both these writ applications are disposed of by this common order.
It appears from the order of the Special Officer (Building), Kolkata Municipal Corporation, dated 6th January, 2011, that he has found the construction in question to be unauthorised and illegal. It was so because it was made without a sanctioned plan. However, if a plan for such construction had been submitted, it would have been 2 sanctioned by the Kolkata Municipal Corporation. Hence the construction would have been an authorised one. Although there was a violation of law, "the deviated unauthorised construction does not infringe any vital building rules save and except rules 133 and 134 which deal in structural stability and quality of materials used", the order stated.
I am not satisfied with the reasons given in the order. Once it was said by the Special Officer that although the building was illegal or unauthorised, yet he was treating it as "regularised", he ought to have indicated the legal provisions under which such a building erected unauthorisedly could be treated as such. He should have justified his notion that if a building plan of the construction in question was furnished for sanction at the material point of time, it would have been sanctioned as there was no illegality in the building proposal. So, although the building when erected was without a sanctioned plan and illegal, it could be regularised or treated as regular.
Some reasons have been provided in the order, but in my opinion, these reasons are inadequate. Furthermore, it has been pointed out by Mr. Jayanta Mitra, learned Senior Advocate, that the proper remedy is before the appellate forum, against this kind of an order, created by the Kolkata Municipal Corporation Act 1980, because there is no infirmity in the order as a consequence of which a writ court could be approached.
To this, learned counsel for the writ petitioner submitted that a writ had been entertained in this Court (WP No.5 of 2011) alleges bias against the Special Officer. In that writ, no interim order was passed but the officer against whom bias was alleged was directed to 3 proceed with the matter and the writ kept pending. Since the officer has subsequently passed the order, the writ court should hear the matter as it has retained its jurisdiction, it was submitted.
That is not exactly the case because I find that a subsequent writ application was filed by the same writ petitioner challenging the said determination of the Special Officer (Building) dated 6th January, 2011. Since a fresh writ application has been filed, the writ petitioner could have well gone to the appellate forum. Moreover, in my opinion, disputed questions of fact are involved regarding legality of the building, deviation and so on.
Under those circumstances, both these writ applications are disposed of by directing the writ petitioner to approach the appellate forum for redress on the self same cause of action. If the writ petitioner prefers an appeal, the appellate forum will admit such appeal by condoning the delay, if any. The appellate forum will also decide the question of law referred to in this order, if raised by any party. All other questions raised in the writ applications are kept open before the appellate forum.
All parties concerned to act on a signed photocopy of this order upon the usual undertakings.
(I.P.MUKERJI, J.) G/