Calcutta High Court (Appellete Side)

Ravi Goyel vs The Howrah Municipal Corporation ... on 4 April, 2022

05.04.2022
Sl. No.26
ss
                                   W.P.A. 3800 of 2022


                                   Ravi Goyel
                                      Vs.
                       The Howrah Municipal Corporation & ors.

                            Mr. Tanmoy Mukherjee
                            Mr. Souvik Das
                            Mr. Rudranil Das
                                             ... for the petitioner

                            Mr. Sandipan Banerjee
                            Mr. Ankit Sureka
                                             ... for the H. M. C.

                            Mr. Mahendra Prasad Guptas
                            Mr. D. K. Saila
                            Mr. Ayan Mitra
                            Mr. Chandan Mondal
                            Ms. Antara Panja
                                       ... for the respondent no.6

The petitioner has alleged that the respondent no.6

has made illegal construction at premises no.230/1, Netaji

Subhas Road, Police Station Shibpur, District Howrah.

According to the petitioner, a six-storeyed building

has been constructed, although the approved plan is for a

G+3 storeyed building.

Mr. Banerjee, learned Advocate appearing on behalf

of the Howrah Municipal Corporation, on instruction,

submits that several 'stop work' notices had been issued,

but the respondent no.6 has not complied with such

notices. Instead, construction has been made by the

respondent no.6, illegally.

Mr. Gupta, learned Advocate appearing on behalf of

the respondent no.6 raises a question of the maintainability

of the writ petition. He submits that the writ petition at the

instance of the petitioner, must be dismissed as the

petitioner does not have a locus to file the same. He denies

the allegation made by the Corporation with regard to

violation of the stop work notice. He submits that such

notices have never received by the respondent no.6. Mr.

Gupta also submits that the construction has been made

strictly in accordance with the sanction plan, which was

supplied to the petitioner under the Right to Information

Act. He further submits that the building was completed

long ago and third-party interests have been created.

Heard the learned Advocates for the respective

parties.

It is a matter of practice that a court invokes the writ

jurisdiction in cases where a legal wrong or a legal injury is

caused. Unauthorized constructions are against public

interest. They affect the environment and the rights of

citizens to live in a planned and organized city. Moreover,

silence of the Corporation amounts to perpetuation of such

legal wrong. The Corporation by remaining silent on

receiving such complaints, have failed to exercise their

jurisdiction under the law and all citizens, in the opinion of

the Court, who are tax payers to the Corporation, can bring

such illegalities to the notice of the writ court and pray for a

direction upon the Corporation to discharge its duties in

accordance with law. It is the bounden duty of all to follow

the regulatory laws while making constructions, even on

their private lands.

In the matter of Supertech (supra), the Hon'ble Apex

Court held as follows:-

"162. In K. Ramadas Shenoy v. Town Municipal Council, Udipi [K. Ramadas Shenoy v. Town Municipal Council, Udipi, (1974) 2 SCC 506] , A.N. Ray, C.J. speaking for a two-Judge Bench of this Court observed that the municipality functions for public benefit and when it "acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess". This Court also held : (SCC p. 513, para 27) "27.... The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. R. [Yabbicom v. R., (1899) 1 QB 444] )."

This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorised construction."

Dipak Kumar Mukherjee v. Kolkata Municipal

Corpn. reported in (2013) 5 SCC 336 is a case where a writ

petition filed before a learned single bench by an

enlightened citizen of Calcutta had been entertained and

orders of demolition was passed. The Division Bench

reversed the order of the single Judge , and the Apex Court

set aside the order of the Division Bench, entertained the

appeal filed by a third party and ordered demolition,

payment of fine etc. Thus, the question of locus was not

relevant at all, before the Hon'ble Apex Court. The relevant

paragraph is quoted below:

"10. The appellant is an enlightened resident of Kolkata. He succeeded in convincing the learned Single Judge of the Calcutta High Court to order demolition of unauthorised construction of multi- storeyed building by Respondent 7, M/s Unique Construction on the plot owned by Respondent 8, Sarjun Prasad Shaw but could not persuade the Division Bench to affirm the order of the learned Single Judge and this is the reason why he has approached this Court."

The Hon'ble Apex Court directed as follows:-

"29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorised construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the public authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer.

30. In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by Respondent 7 is pulled down without delay, we issue the following directions:

30.1. Within three months from today, Respondent 7 shall pay the price of the flats, etc. to the purchasers with interest @ 18% per annum from the date of payment.

30.2. The occupiers of illegal/unauthorised construction shall vacate such portions of the building within the next one month.

30.3. Within the next one month, the Corporation shall demolish unauthorised construction after taking adequate precautionary measures. 30.4. Respondent 7 shall pay costs of Rs 25,00,000 for brazen violation of the sanctioned plan and continuance of illegal construction despite "stop- work notice". The amount of cost shall be deposited

with the Kolkata State Legal Service Authority within three months and the same be utilised for providing legal aid in deserving cases.

31. Reports showing compliance with the aforesaid directions be filed by the Corporation and Respondent 7 in the Registry of the Calcutta High Court within six months. Thereafter, the matter be placed before the learned Single Judge who had passed the order dated 28-7-2010 [Dipak Kumar Mukherjee v. Kolkata Municipal Corpn., WP No. 13815 of 2010, order dated 28-7-2010 (Cal)] . If the learned Single Judge finds that any of the aforesaid directions has not been implemented then he shall initiate proceedings against the defaulting officers and/or Respondent 7 under the Contempt of Courts Act, 1971 and pass appropriate order."

The law has undergone a sea-change in view of the

several judicial pronouncements of the Hon'ble Apex

Court. Moreover, a person who is the resident of an area,

where constructions have been made in violation of the

law, has every right to point out such illegality.

Unauthorised construction is an environmental hazard. It

is a burden on the civic amenities provided by the

municipal authorities and also spoils the planning and

design of a developed area. Any person who is a resident of

the locality, can be affected in some way, by the

unauthorised construction. Moreover, a tax payer has

every right to challenge inaction on the part of the

Corporation. The allegation is that the Howrah Municipal

Corporation has failed to discharge its statutory obligation

by not dealing with a complaint filed by the petitioner.

Thus, the objection with regard to locus is not accepted.

As the petitioner has already filed a complaint before

the Corporation, the same shall be disposed of in

accordance with law, upon granting adequate opportunity

to the petitioner, the respondent no.6 and the occupants, if

any, residing in the premises in question.

In this case, no further third party interest will be

created, till the disposal of the matter by the Corporation.

The Officer-in-Charge of Shibpur Police Station, is a

party to the proceeding and the prayer of the Corporation

that the police authorities may be directed to provide

assistance, is granted.

As there are allegations of unauthorised

construction, the competent authority of Howrah

Municipal Corporation shall consider the complaint

lodged by the petitioner and reach the same to its

logical conclusion, in accordance with law. While

doing so, the following procedure shall be adopted:-

a) An inspection of the premises shall be conducted.

Such inspection shall be held in the presence of

the petitioner and the respondent no.6, and the

occupants, if any, who are residing in the premises

in question, within three weeks. Advance notice of

the inspection shall be served upon the petitioner

and the respondent no.6. If the parties are not

available to accept notice, the authorities shall

affix the notices of hearing and inspection at

conspicuous places in their respective premises.

b) In case, it is found on preliminary inspection that

there may be reasons to believe that the

construction was without permission and was

continuing, the authorities may take interim

measures by stopping such construction.

c) A report of such inspection shall be prepared along

with the sketch map, indicating the extent and

nature of unauthorized construction, if any.

d) Such report, if prepared, shall be handed over to

the parties.

e) A hearing shall be given to the petitioner and the

respondent no.6 and the representatives of the

occupants, if any, who are residing in the premises

in question. The parties must also be allowed to

furnish their written objection/version to the said

report and adduce oral and documentary evidence

in support of their contentions, before the

competent authority. All points raised by the

parties shall be decided. All documents filed by the

parties, if any, shall be exchanged.

f) A reasoned order shall be passed and

communicated to the parties. On the basis of what

transpires at the hearing and during inspection,

the proceedings shall be reached to its logical

conclusion, in terms of the statute.

The court has not gone into the merits of the claims

and counter-claims of the parties and the issues involved

shall be decided independently. The question of title,

boundary dispute and allegation of encroachment shall not

be gone into.

The entire exercise shall be completed within a period

of four months from the date of communication of this

order.

This order shall be affixed at the premises in question

by the petitioner and also by the Corporation. Such order

will operate as a notice to all the interested parties to be

present before the Corporation at the time of inspection