1. The public law remedy has been sought to be invoked by filing this petition under Article 226 of the Constitution of India by structuring the same as a Public Interest Litigation (PIL). The case has a chequered history and the basic facts pertaining to the same can be put in a nutshell. This writ petition was initially filed in the Calcutta High Court and numbered as WP(C) 925/2016. However, during its pendency, a transfer petition being Transfer Petition (C) No. 1374 of 2017 was filed in the Hon’ble Supreme Court which vide an order dated 14.05.2018 was pleased to transfer the case to this High Court and on such transfer, this Court has assumed jurisdiction over the same.
2. The writ petition which was filed as a public interest litigation pertains to 2 (two) numbers of constructions carried out at the Canal East Road, Kolkata being premises no. 48 and B-43/H/4. According to the petitioner, the aforesaid two constructions are illegal as those are constructed without the due permission from the Kolkata Municipal Corporation which is the appropriate authority. According to the petitioner, the said two constructions are creating a menace in the locality posing danger to the life and limb of the general public. The petitioner tried to redress his grievance by submitting a representation dated 28.07.2016 which remained unheeded to. Thereafter, so far as the premises no. 48 was concerned, on or about 14.06.2016, one of the floors collapsed causing serious injuries to many people and also creating a fear psychosis in the entire locality and the said incident was even reported in the newspapers. As no action was seen to be forthcoming even after such occurrence, the petitioner submitted a further representation dated 16.08.2016 to the authorities which also remained un-addressed.
3. It is the case of the petitioner that though after the aforesaid collapse pertaining to premises no. 48, the construction was temporarily stopped, to the utter dismay of the petitioner, the constructions resumed leading to a state of panic amongst the people of the locality.
4. So far as the premises no. B-43/H/4 is concerned, the petitioner has alleged that the said construction is also absolutely illegal and without any due permission from the authorities. To demonstrate the existence of the two buildings, the petitioner has annexed photographs of the same.
5. It is the specific case of the petitioner that the aforesaid constructions are carried out in gross violation of the building rules framed under the Kolkata Municipal Corporation Act, 1980. The serious incident of collapse of one floor has not been taken in its proper perspective by the authorities and except of issuing “stop work notice” for a short duration, nothing tangible was seen to be done by the said Corporation except registering FIR under u/s 401A of the KMC Act, 1980 from time to time. As a corollary, it is the case of the petitioner that the very fact that stop work notice was issued makes it evident that the Kolkata Municipal Corporation was fully aware of the illegality and yet did not take any action. As per the petitioner, the premise no. B-43/H/4 has been constructed up to the roof of the 6th floor and the casting of the 7th floor was under preparation and the further representation of the petitioner dated 10.08.2016 was ignored. The petitioner had accordingly prayed for intervention by this Court in exercise of its extra ordinary powers under Article 226 of the Constitution of India by directing demolition of the two illegal structures in question.
6. When this writ petition was moved, the Calcutta High Court had passed orders dated 23.09.2016 and 25.11.2016. By the first order dated 23.09.2016, a direction was given to the Respondent Nos. 8 and 9, the owners and the stake-holders of the two premises in question restraining by way of an injunction any future construction and the Officer In-charge, Narkeldanga Police Station was directed to see that the order was strictly complied with. By the subsequent order dated 25.11.2016, taking into note the unauthorised illegal construction, it was directed that the Corporation would not supply water and sewerage connection to any of the constructions undertaken by the respondents. It was further provided that CESC would not provide any electric connection to any of the constructions undertaken by the respondents. The concerned Deputy Commissioner of Police was directed to see that the order passed by the Court was not violated in any manner.
7. At that stage, applications for impleadement of party respondents were filed by various affected parties and were allowed which include the State of West Bengal as Respondent No.10, the builder Md. Naushad as Respondent No.11 (in so far as the construction pertaining to B-43/H/4 is concerned) and the land owners as Respondent Nos. 12, 13 and 14. It is the case of the petitioner that even thereafter in spite of further orders of restraint from the Calcutta High Court, the illegal constructions were going on. The aforesaid fact was brought to the notice of the Court and the Calcutta High Court vide order dated 05.05.2015 after noticing the same had directed the personal appearance of the Respondent No.2 to explain the situation. Even thereafter, apart from seeking time to comply with the interim orders, nothing was done. The said High Court has also passed an order dated 28.04.2017 directing filing of an affidavit after a proper inspection as to the status of the demolition proceeding.
8. The Respondent No.11 herein – Nesar Ahmed, in the meantime had filed a transfer petition in the Hon’ble Supreme Court being Transfer Petition (Civil) No. 1374/2017. After such filing, the Respondent No.9 had passed away and accordingly he was deleted from the array of parties. The Hon’ble Apex Court vide order dated 14.05.2018 had finally allowed the transfer petition transferring the case from the Calcutta High Court to the Gauhati High Court pursuant to which, this Court had assumed jurisdiction over the matter, as indicated above.
9. The pleaded case of the petitioner has already been narrated above. Further in compliance with the direction of the High Court dated 28.04.2017, the Kolkata Municipal Corporation had submitted its affidavit on or about 11.05.2017 and interestingly on a perusal of the same it turned out that there are no major factual dispute in this case. The affidavit of the Kolkata Municipal Board in categorical terms states that the premises no. 48, Canal East Road (Eastern Portion) is a five storied building which has been constructed unauthorisedly for which, apart from issuing “stop work notice” under Section 401 of the Act of 1980, the concerned Narkeldanga Police Station was also informed about the same on a number of occasions for which, FIRs were registered. It has further been stated that for demolition of the unauthorised construction a squad was sent and small portion of the roof and the 5th floor was demolished but with much resistance.
10. So far as the premises no. 48, Canal East Road is concerned, it has been categorically stated that the same is a five storied unauthorised building for which, stop work notice was issued on 04.01.2003, FIR lodged and pursuant to an earlier order of the Kolkata High Court, a demolition proceeding was initiated and accordingly a final decision was required to be taken for removal of the unauthorised construction.
11. So far as the premises no. B/43/H/4 at Canal East Road is concerned certain irregularities were found in the construction, however, a building plan for construction of a G+4 storied building was duly granted. The irregularities involve construction of two additional floors without permission and certain structural deviations with regard to columns etc. Even here, stop work notice were issued and FIR lodged u/s 401A of the Act of 1980. In the said affidavit, regret has been expressed for not completing the demolition process in time. For ready reference, the relevant portion of the affidavit is quoted herein below:
“.......... Having due regard to the said solemn direction of this Hon’ble Court dated 28th April, 2017, I have duly inspected the relevant files in connection with the said premises as placed before me under my instructions and upon thereof perusal I may state as follows:
A. Premises No. 48, Cannel East Road (Eastern Portion).
a) A 5 storied unauthorized building has been constructed at Premises No. 48, Cannel East Road (Eastern Portion). The Building Department after receiving a complaint duly inspected at the said premises and found unauthorized construction in progress. The department concerned immediately issued the stop work notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 on 28th October, 2013. The Officers concerned of the Building Department dealt with the matter and submitted their respective notes and reports.
b) The Officer-in-Charge, Narkeldanga Police Station was duly intimated of making an unauthorized constructions at the said premises with necessary instructions to see that no progress of unauthorized construction was made in terms of the notice already issued. The local police station was requested to treat the said intimation of unauthorized construction of the said premises as FIR under Section 401A of the Kolkata Municipal Corporation Act, 1980. The Officer-in-Charge of the local police station was given a report as prepared during the course of inspection.
c) The officer concerned of Building Department prepared the statement of infringement of Building Rules for making such unauthorized construction and also demolition sketch plan. In fact after preparation of the infringement statement and also the demolition sketch plan, proposal was submitted before the higher authority for necessary order to dealt with the case as per provision suitable sub-section of Section 400 of the Kolkata Municipal Corporation Act, 1980.
d) Another FIR was lodged at Narkeldanga Police station on 14th June, 2016 against the person responsible namely, Md. Basuruddin, Murga Allauddin, Md. Nausad, Saheb Ali Ansari and others after collapsing of newly constructed periphery wall at eastern side of the roof level.
e) The authority concerned decided to deal with such unauthorized construction under Section 400(8) of Kolkata Municipal Corporation Act, 1980 and in fact an order for demolition of the unauthorized construction had already been passed. The Kolkata Municipal Corporation engaged an agent/contractor with the direction upon him to demolish the unauthorized construction at the said premises as ordered. It appears that the demolition squad went to the premises in question for demolition of the said unauthorized construction and the contractor was able to demolish small portion of roof slab at 5th storied building but due to huge resistance from the local public in presence of police personnel of local police station action for demolition could not proceed further. In such circumstance a General Diary was lodged with the local police station on 12th July, 2016. The building at the said premises is fully occupied by the local residence. In any event demolition of the unaurthorized construction is required to be completed. All the relevant papers and documents in respect of the above contentions including the statement of infringement of the Building Rules and also demolition sketch plan are annexed hereto and marked with letter “R-2”.
B. Premises No. 48, Cannel East Road.
f) A 5 storied unauthorized building has been constructed at the premises in questioned. The concerned engineers of the Building Department upon receiving a complaint made an inspection at the premises in question and found unauthorized work in progress. The concerned engineers issued the stop work notice on 4th January, 2013 and necessary intimation of making such unauthorized construction at the said premises was duly made with the Narkeldanga Police Station on 5th January, 2013.
g) Since the progress of the work of the unauthorized construction was not stopped despite issuance of the notice, the concerned Engineers of the Building Department lodged FIR with local police station on two occasions against the person responsible Saheb Ali Ansari under Section 401A of the Kolkata Municipal Corporation Act, 1980 on 21st January, 2013 and 29th September, 2014 respectively.
h) A writ petition being W.P. No. 933 of 2014 was filed before this Hon’ble Court complaining inaction of the part of the authorities concerned against the unauthorized work, the Hon’ble Justice Debangsu Basak was pleased to pass an order directing the Municipal Commissioner or any of the concerned authority of the Corporation to hear out the matter as initiated.
i) Pursuant to the direction of the Hon’ble Court, the Director General (Building)-II fixed on 19th May, 2015 for hearing of the demolition case but on that date no one was present for which the hearing could not be taken.
j) In the circumstance as above, the demolition sketch plan and also statement of infringement of the Building Rules as prepared had been sent to the Director General (Building)-II for taking suitable action under Section 400 of the Kolkata Municipal Corporation Act, 1980 a final decision needs to be taken for removal of the unauthorized construction in accordance with the law.
C. Premises N. B/43/H/4, Cannel East Road
k) A Building Plan for construction of G+IV stories building at premises No. B/43/H/4, Cannel East Road was obtained but the person responsible has made two additional floors unauthorizedly. The person responsible, while making construction of the building after obtaining building sanction plan, shifted two columns position. The person responsible has, in fact, made construction in deviation of the building sanctioned plan and there has been encroachment of mandatory open space because of shifting of the columns position in one side. It is on record that the building plan was sanctioned vide B.S. No. 2010030086 dated 4th January, 2011 which was re-validated on 14th October, 2015.
l) The department concerned when detected the progress of the unauthorized construction issued stop work notice on 11th May, 2016 under section 401 of the Kolkata Municipal Corporation Act, 1980. The Narkeldanga Police station was also intimated for making of such unauthorized construction on 11th May, 2016. The FIR was lodged with the local police station on three occasions against Shakina Bibi, Anwari Begum, Khainonessa and Amina Khatoon on 16th June, 2016, 6th September, 2016 and 15th October, 2016 respectively under Section 401A of the Kolkata Municipal Corporation Act, 1980.
It is stated and submitted that after taking certain actions as stated above, there has been no further progress in the matter. In fact the decision should have been taken in the mean time to take steps against unauthorized construction either under Section 400(1) of 400(8) of the Kolkata Municipal Corporation Act, 1980. Having considered the gravity of the unauthorized construction, I sincerely regret that the matter has not been dealt with all diligence and sincerity and the demolition proceeding should have been completed by this time to take up further steps in the matter. I, have therefore, instructed the Building Department to put up a respective files to obtain views and decisions of the Mayor-in-Council (in short MIC) without any further delay.”
12. In response to the aforesaid affidavit of the Kolkata Municipal Corporation, the builder in respect of the premises no. B-43/H/4, Md. Naushad, the Respondent No.11 (describing himself to be the Respondent No. 14) has stated that as per an agreement dated 16.10.2015 with the land owners, he was entrusted for constructing a multi-storeyed building (the subject premises). However certain anti-social elements had made huge demands from him and registered a false case against him in which he had to take bail. However, he has stated that the sanction in question was obtained by the land owners and he does not have any knowledge about Civil Engineering and accordingly unable to make any comments on the deviations alleged. However, he has categorically stated that he is ready and willing to bring the constructions within the limits of the sanctioned building plan.
13. We have heard Shri S. Mukhopadhay, learned counsel for the petitioner and Shri R.C. Borpatragohain, learned counsel for Respondent Nos. 1 to 7. Also heard Ms. P. Bhattacharya, learned Counsel for Respondent No.10, Shri A.D. Choudhury, learned Counsel for Respondent No.11 and Mr. D. Das, learned Senior Counsel for Respondent Nos. 12 to 14.
14. From the pleadings before us and the materials on record it is clear that so far as the premises no. 48 is concerned, there is no permission from the competent authority and so far as the premises no. B-43/H/4 is concerned, there are deviations from the sanctioned plan by the Kolkata Municipal Corporation and a major deviation is unauthorised construction of two floors, namely, 5th and 6th which is beyond the permission of G+IV.
15. Shri S. Mukhopadhay, learned counsel for the petitioner submits that both the constructions in question are without any authority of law and accordingly liable to be demolished and since the primary authority namely, the Kolkata Municipal Corporation has failed to discharge its statutory duties, it is a fit case wherein appropriate directions be issued for demolition of the building in question by this Court under Article 226 of the Constitution of India. The learned counsel further submits that there is hardly any dispute on merits and therefore there is no impediment upon this Court to issue such directions. The learned counsel has relied upon the following provisions of the Kolkata Municipal Corporation Act, 1980: 396. Sanction or provisional sanction or refusal of building or work.-
(1) The Municipal Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-section (2) or sub-section (3) of this section or the provisions of section 405 or section 406: Provided that no such sanction shall be accorded without the prior approval of the Mayor-in-Council in case of any building, except a residential building, proposed to be erected or re-erected on a plot of '[500 square metres or less of land, or a heritage building:] Provided further that the Mayor-in-Council shall consider the recommendations of the Municipal Building Committee and those of the Heritage Conservation Committee] and shall finalize its decision after such consideration.
(2) The sanction of a building or a work may be refused on the following grounds:
(a) that the building or the work or the use of the site for the building or the work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of this Act or the rules and the regulations made thereunder or of any other law in force for the time being;
(b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the rules and the regulations made in this behalf;
(c) that any information or document required by the Municipal Commissioner under this Act or the rules or the regulations made thereunder has not been duly furnished;
(d) that in cases requiring a layout plan under section 364 or section 365 such layout plan has not been sanctioned in accordance with the provisions of this Act;
(e) that the building or the work would be an encroachment on Government land or land vested in the Corporation;
(f) That the site of the building or the work does not abut on a street or projected street and that there is no access to such building or work from any such street by any passage or pathway appertaining to such site.
(3) If, for the use of a building, a licence or permission is required from any department of Government or statutory body under any law in force for the time being, and if such licence or permission is not immediately available, a provisional sanction shall be given for the erection of such building and upon the production of such licence or permission and submission of duly authenticated copies thereof, sanction under sub-section (1) shall be given: Provided that the provisional sanction shall be subject to all other provisions of this Chapter.
(4)The Municipal Commissioner shall communicate the sanction or the provisional sanction to the person who has given the notice under section 393 or section 394; and where he refuses sanction or provisional sanction either on any of the ground specified in sub-section (2) or under section 405 or section 406; he shall record a brief statement of his reasons for such refusal and shall communicate the refusal along with the reasons thereof to the person who has given the-notice.
(5)The sanction or the provisional sanction or the refusal to the erection of a building or the execution of a work shall be communicated in such manner as may be specified in the rules and the regulations made in this behalf and, in the case of sanction or provisional sanction to the erection of a building, the occupancy or use group shall be specifically stated in such sanction.
(6) Notwithstanding anything contained in the foregoing provisions of this section, sanction or refusal of sanction of building plan submitted through online under section 393A shall be communicated through on-line in such manner and in such form as may be prescribed.
400. Order of demolition and stoppage of buildings and works in certain cases and appeal.- (1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3).
Explanation.—In this Chapter, the person at whose instance" shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions if any, or does it by himself.
(2)The Municipal Commissioner may make an order under sub-seciion (1), notwithstanding the fact that the assessment of such building has been made for the levy of the '[property tax] on lands and buildings.'
(3)Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415.
(4) Where an appeal is preferred under sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, and for such period, as it may think fit: Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-section (1), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5) Save as provided in this section, no Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(6) Every order made by the Municipal Building Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-section (1) shall be final and conclusive.
(7) Where no appeal has been preferred against an order made by the Municipal Commissioner under sub-section (1) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8)Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith.
401. Order of stoppage of buildings or works in certain cases.- (1) Where the demolition of any heritage building or the erection or any building or the execution of any work has been commenced or is being carried on without or contrary to the sanction referred to in section 396 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or the rules or the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, by order, require the person at whose instance the building or the work has been commenced or is being carried on to stop the same forthwith.
(1A) (a) Notwithstanding anything contained elsewhere in this Act or in any rules or regulations made thereunder, no owner of any building, and no person engaged in the construction of any building on behalf of the owner thereof shall allow storage or stagnation of water in the site for the construction of such building. Every such owner or every such person, as the case may be, shall completely empty all collections of such water at least once in a week.
(b) Where the construction of a building is carried on in contravention of the provisions of clause (a), the Municipal Commissioner may, in addition to any other action that may be taken under this Act, by a written order, require the person at whose instance such storage or stagnation of water in the site for the construction of the building is made to stop forthwith any further construction or the building, and such order shall remain in force till the person as aforesaid complies with the requirements of the order as aforesaid to the satisfaction of the Municipal Commissioner. –
(IB) If an order made by the Municipal Commissioner under clause (b) of sub-section (1A) directing any person to stop the construction of any building is not complied with, the Municipal Commissioner may take such measures as he deems fit or may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified by the Municipal Commissioner and such police officer shall comply with such requirement.
(2) No Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance or the provisions of this section.
(3) If an order, made by the Municipal Commissioner under section 400 or under sub-section (1) of this section directing any person to stop the erection of any building or the execution of any work, is not complied with, the Municipal Commissioner may take such measures as he deems fit or may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified by the Municipal Commissioner and such police officer shall comply with such requirement.
(4) After the requirement under sub-section (3) has been complied with, the Municipal Commissioner may, if he thinks fit, depute, by a written order, a police officer or an officer or other employees of the Corporation to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued. 'Sub-sections (I A) and (IB) were inserted by s. 30(2) of the Calcutta Municipal
(5) Where a police officer or an officer or other employee of the Corporation has been deputed under sub-section (4) to watch the premises, the cost or such deputation to be determined by the Corporation by regulations shall be paid by the person at whose instance such erection or execution is being continued or to whom notice under sub-section (1) has been given and shall be recoverable from such person as an arrear of tax under this Act.
16. Shri R.C. Borpatragohain, the learned Counsel appearing for the Kolkata Municipal Corporation however questions the locus and bona fide of the petitioner. The learned Counsel has submitted that there is no candid disclosure of the facts pertaining to the case and the writ petition suffers from suppression of material facts. Defending the action of the Corporation, the learned counsel submits that due action has been taken on the complaints and demolition order for the two unauthorised floors, namely 5th and 6th floors so far as the premises no. B-43/H/4 was issued pursuant to which there has been demolition. As regards the other premises, it is only upon resistance and obstructions that the demolition has not been able to be done. In support of his submission, the learned Counsel relied upon the judgment of the Hon’ble Supreme Court passed in the case of K.D. Sharma v. Steel Authorities of India Ltd., reported in 2008 (12) SCC 481 and Balwant Singh Chaufal v. State of Uttaranchal, reported in (2010) 3 SCC 402 .
17. In the case of K.D. Sharma, the Hon’ble Supreme Court has laid down that candid disclosure of material facts is a condition precedent for invoking the writ jurisdiction under Article 226 of the Constitution of India. Further, prerogative writs are not to be issued in a routine manner and for mere asking. In the case of Balwant Singh Chaufal, the Hon’ble Apex Court has laid down the guidelines of entertaining of public interest litigation and in fact, based upon the said judgement, the Gauhati High Court has framed the Rules pertaining to PIL.
18. Though the aforesaid judgments are relevant, since this petition was already admitted for final hearing, the question of maintainability may not arise at this stage. The further fact which has persuaded us to decide the case on merits is because of the admitted facts by the rival parties.
19. Shri D. Das, the learned Senior Counsel appearing on behalf of the land owners pertaining to the premises no. B-43/H/4, in his usual flair submits that as the land owners, they are ready and willing to rectify the deviations pertaining to the building in question. Referring to the application for vacating the interim orders, Shri Das, the learned Senior Counsel has relied upon the permissions of the Kolkata Municipal Corporation both for the structural plan and the building plan and submits that the contention made in the writ petition of illegal construction is not factually correct. However, so far as deviations in unauthorisedly constructing the 5th and 6th floor is concerned, the learned counsel submits that the same has already been demolished and has also placed photographs showing such demolition. He further submits that the side walls and beams however have not been demolished as the same would adversely affect the structural strength of the building.
20. Shri A.D. Choudhury, learned Counsel for Md. Naushad (Respondent No.11) who is the builder in respect of the premises no. B-43/H/4 submits that his client is not aware of the building permission. However, pursuant to the orders of demolition, the roof of the 5th and 6th floor have already been demolished and further he is ready and willing to rectify the other defects. The learned counsel however submits that the entire building is still vacant because of the proceeding for which he is suffering immense loss and inconvenience.
21. Ms. P. Bhattacharjee, learned Counsel has appeared for the State of West Bengal which was newly impleaded. The learned counsel submits that though no affidavit has been filed, the State would adopt the submissions of the Respondent no. 1 – The Kolkata Municipal Corporation.
22. Shri S. Mukhopadhay, the learned Counsel for the petitioner in his rejoinder submits that so far as the premises no. 48 is concerned, in view of the prayer and categorical stand of the Kolkata Municipal Corporation and failure to rebut by the concerned affected parties in spite of service of notice coupled with the helplessness expressed by the Corporation, it is a fit case for directing demolition by this Court.
23. Further, as regards the other building, namely premises no. B-43/H/4, the learned counsel for the petitioner submits that the land in question is “Thika” land in which the maximum building permission can be of G+II. Therefore the permission in question exceeding such prescription is illegal and therefore the entire building is liable to be demolished.
24. The rival submissions of the respective counsels for the parties have been duly considered and the materials on record have been carefully examined.
25. This Court, in the course of hearing had passed an order dated 27.08.2018 directing the Kolkata Municipal Corporation to submit a fresh report regarding the present status of the buildings of the two premises. In compliance with the aforesaid direction, the Corporation had submitted a report dated 04.09.2018 virtually admitting that premises no. 43/H/4 has two unauthorised floors, namely, 5th and 6th whereas premises no. 48 is absolutely unauthorised as the same is without any sanction plan. It would be useful to quote the extracts of the report in the judgment which is as follows:
IN THE GAUHATI HIGH COURT
THE Kolkata Municipal Corporation & Others
In compliance with the order of the Hon’ble GAUHATI HIGH COURT dated 27/08.2018 the fresh report regarding present status of buildings of two premises in question are furnished below-
1. Building at Premises No. 43/H/4, Canal East Road –
A plan was sanctioned by Kolkata Municipal Corporation (K.M.C.) for a five storied residential building of height 15m on a plot of land of 491 Sq.m. vide Building Sanction No. 2010030086 dated 04.01.2011 and subsequently revalidated for 5 years with effect from 14.10.2015. But during construction the owners have made unauthorized construction by constructing another two stories over the five storied sanctioned building by covering the mandatory open space deviating from the sanctioned plant. At present height of the building is 21.5m.
Departmental Action –
This department had issued stop work notice on 11.05.2016 U/s 401 of KMC Act 1980. Intimated the Narkeldanga Police station on 11.05.2016. Lodged F.I.R three (3) times against owners Saikina Bibi, Anwari Begum, Khainonessa & Amina Khatoon on 16.06.2016, 06.09.2016 and 05.10.2016 respectively at Narkeldanga Police Station U/S 401A of KMC Act 1980 as the unauthorized construction continued defying stop work notice U/S 401 of KMC Act 1980.
Several joint inspections with Narkeldanga Police Station were done. Two letters were sent to Additional Commissioner of Police (1) dated 23.06.2016 & 19.10.2016 from Director General (Building)-II to prevent such unauthorized construction. Round-O-Clock police watch posting also imposed to stop progress of any work as provided in section 401(4) of the KMC Act 1980 on 22.05.2017.
Demolition sketch plan along with building rules infringement statement were prepared and sent on 18.09.2016 to Director General (Building)-II through Dy. Chief Engineer (Building/North) for taking appropriate action U/S 400 of KMC Act 1980.
As per order of higher authority a demolition programme U/S 400(8) of KMC Act 1980 was carried out on 19.04.2018 with the help of demolition personnel of Kolkata Municipal Corporation and Police Personnel of Narkeldanga Police Station.
A portion of upper two floors have already been demolished by this department except column & beam and outer walls as that will hamper the structural stability of the building as lower rest portion of the building was sanctioned.
At present no further constructional works is going on at above mentioned premises.
2. i) Building at Premises No.48, Canal East Road –
This is any unauthorised construction of a five storied residential building with has been made with R.C.C. columns, beams and brick work without sanction plan. The height of the building is 15.10m. After verifying records it is come to the knowledge of Assessment Department of the Kolkata Municipal Corporation that recorded owner in respect of the assessee number 110290100082 i.e. 48, Canal East Road is Collector 24 Parganas.
Departmental action –
This department had issued stop work notice U/S 401 of KMC Act 1980 on 04.01.2013. Intimated the Narkeldanga Police Station on 05.01.2013. Lodged FIR two (2) times against person responsible Sahib Ansari U/S 401A of KMC Act 1980 on 22.01.2013 & 29.09.2014 respectively as unauthorized construction continue defying stop work notice. In the mean time a case was initiated vide W.P. No. 933 of 2014 at the Hon’ble Justice Debangsu Basak in the High Court at Calcutta dated 17.03.2015 in connection with the said W.P. No. 933 of 2014, a hearing was fixed on 19.05.2015 by Director General (Building)-II. But on that date of hearing no one was present for which the hearing could not be taken by Director General (Building)-II. The matter is under proceeding for demolishing the unauthorized construction.
At present the building is fully occupied and no further constructional works is going on at above mentioned premises.
ii) Building at Premises no.48, Canal East Road (Eastern Portion) –
This is an unauthorized construction of a five storied residential building which has been made with R.C.C. columns, beams and brick work without sanction plan. The height of the unauthorized building is 15.130m. After verifying records it is come to the knowledge of Assessment Department of the Kolkata Municipal Corporation that recorded owner in respect of the assessee number 110290100082 i.e. 48, Canal east Road is collector 24 Parganas.
Departmental Action –
This department had issued stop work notice U/S 401 of KMC Act 1980 on 28.10.2013. Intimated the Narkeldanga police station on 28.10.2013. Lodged FIR two (2) times against person responsible Md. Basiruddin U/S 401A of KMC Act 1980 on 29.11.2013 & 03.09.2014 respectively as unauthorized construction was continued defying stop work notice.
Another F.I.R. was lodge at Narkeldanga Police Station on 14.06.2016 against person responsible Md. Basiruddin, Murga Alauddin, Md. Nausad, Saheb Ali Ansari and others after collapsing the portion of the newly constructed parapet walls at eastern side at roof level.
Some portions of roof slab of this five storied building have been demolished U/S 400(8) of KMC Act 1980 by the Kolkata Municipal Corp
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oration. But due to stiff resistance from occupiers of the said building and local people in presence of Police Personnel of Narkeldanga Police Station, the demolition proceedings could not be carried out further. A General Diary was lodged in the Narkeldanga Police Station on 12.07.2016 for such incidence. Again a demolition programme was fixed on July 12, 2018 and the Special Commissioner of Police – II, Kolkata Police was requested to provide sufficient police help to carry out the demolition work but due to insufficient police force the demolition proceedings could not be carried out. At present the building is fully occupied and no further constructional works is going on at above mentioned premises.” 26. The undisputed facts pertaining to this case is that so far the premises no. 48 is concerned, the same is without any permission from the competent authority and therefore the inevitable conclusion is that the same has to be demolished. In fact, this Court is of the view that since the authority itself had termed the same to be illegal, but has failed to act in accordance with law, a direction is necessary from this Court for its demolition. This Court therefore, expresses dissatisfaction on the helplessness expressed by the Kolkata Municipal Corporation in not being able to demolish the illegal construction due to “public resentment”. This Court is of the view that instead of expressing regret in the affidavit, necessary steps should have been taken to demolish the illegal structure immediately on noticing the illegality by taking assistance of State machinery. In this proceeding also, the State of West Bengal has adopted the stand of the Corporation. 27. So far as the other premises is concerned namely, B-43/H/4, the admitted fact is that the illegally constructed 5th and 6th floor have already been partially demolished. However, such demolition cannot be restricted to the roof only. We are unable to accept the submission of the learned Senior Counsel, Shri Das that demolition of the side walls and beams would weaken the structure in as much as such demolition will only be at the top two floors (5th and 6th) and not on the lower floors. Therefore, along with the roof, the beams, columns and all walls of the 5th and 6th floor are directed to be demolished except retaining parapet wall for the roof of 4th floor. 28. As regards the submission of the petitioner attempting to term the premises no. B- 43/H/4 as “Thika” property is concerned, the same cannot be countenanced on more than one count. Firstly, nowhere in the pleadings in any of the Courts, such an averment is made and in absence thereof, apart from the fact that the respondents are deprived from an opportunity of rebuttal, no occasion arises for this Court to frame and decide an issue. Though the learned counsel would submit that the use of letter “B” in describing the premises itself presumes that the same is “Thika” land, this Court is not in a position to accept such presumption in law. On the contrary, the fact that the Kolkata Municipal Corporation had granted the necessary permission for the building in question (G+IV) pre-supposes that the land is not a “Thika” land. In any case, a writ Court cannot determine the nature/status of the land in question which should require adducing of evidence. Therefore, while not entertaining the submission on this aspect of the matter, it is made clear that this Court is not expressing any opinion on merits relating to nature and tenure of the property as the issue raised is limited to unauthorised construction and the same may be the subject matter in a proceeding before an appropriate Court. 29. In view of the aforesaid facts and circumstances, this writ petition is partly allowed with the following directions: i. The premises no. 48, Canal East Road, Kolkata is declared to be illegally constructed and accordingly the same is directed to be demolished. ii. The 5th and 6th floor of the premises no. B-43/H/4 Canal East Road, Kolkata are declared to be illegally constructed which are directed to be demolished entirely including roofs, all walls (except parapet wall for roof of 4th floor), beams and columns. The aforesaid demolitions are to be completed within a period of 2 months from today. In doing so, the State of West Bengal is directed to render all necessary assistance including police force to the Kolkata Municipal Corporation facilitating such demolition. 30. The writ petition is accordingly disposed of, however, without any order as to costs.