Calcutta High Court (Appellete Side)
Smt. Bratati Bera vs Midnapur Municipality & Ors on 9 February, 2022
S/L 13
09.02.2022
Court. No. 19
GB
W.P.A. 675 of 2022
Smt. Bratati Bera
VS
Midnapur Municipality & Ors.
Mr. Biswaroop Bhattacharya,
Ms. Soumita Ghosh.
... for the Petitioner.
Mr. Zohaib Rauf.
... for the Respondent No.4.
Ms. Ahana Sikdar.
... for the Midnapur Municipality.
Affidavit-of-service filed in Court today be kept with the
record.
The petitioner has alleged unauthorized construction of a
multi-storeyed commercial cum residential building at
Nimtala Chawk, Ward No.15, Mouza-Bibigunj, at L.R. Plot
Nos.243, 246 and 247.
It is the specific contention of the petitioner that the
sanction plan has been issued in contravention to the rules.
Further that a part of the construction was raised by the
respondent no.4 without sanction and a part was
constructed, in violation of the sanction plan. The specific
allegation is that the sanction was granted for a G+4 storied
building, whereas a G+7 storeyed building had been
constructed, illegally.
Mr. Rauf, learned advocate appearing on behalf of the
respondent no.4 submits that a revised plan has been filed
with the authorities and the authorities may be directed to
dispose of the revised plan with regard to the other floors
which have been constructed. Reliance has been placed on a
decision of this Court in the matter of Saif Impex Pvt. Ltd.
versus Kolkata Municipal Corporation reported in
2014 SCC OnLine Cal 16044. The relevant portion of the
judgment is quoted below:
"Having regard to the fact that there is nothing
on record to show the existence of immediate threat to
public safety, I feel that the Municipal authority need
not resort to the provision contained in sub-section 8 of
Section 400 of the Kolkata Municipal Corporation Act
for immediate demolition of the construction made on
the 6th floor of the said building, particularly in view of
the fact that the petitioner's application for sanction of
the revised plan for regularising 6th floor construction
in the said building is still awaiting consideration before
the Municipal authority.
Accordingly, this court disposes of the writ
petition by directing the Municipal authority to proceed
under Section 400(1) of the Kolkata Municipal
Corporation Act instead of proceeding under sub-
section 8 of Section 400 of the Kolkata Municipal
Corporation Act in respect of the unauthorised
construction which was made by the petitioner in
deviation from the sanctioned plan. While doing so the
Municipal authority will first consider the petitioner's
application for sanction of revised plan and thereafter
take the ultimate decision regarding demolition of the
unauthorized construction allegedly made by the
petitioner in the said building in deviation from the
sanctioned plan, provided such unauthorized
construction cannot be retained as per the Building
Rules framed under the Kolkata Municipal Corporation
Act, 1980."
This Court is of the opinion that the petitioner should
avail of the provisions of Section 217 of the West Bengal
Municipal Act, 1993 with regard to the allegation that the
plan has been obtained from the municipal authorities upon
practising fraud and material misrepresentation. This court
cannot decide the said issue.
With regard to the complaint of the petitioner regarding
unauthorized construction, this Court directs that the
complaint of the petitioner as also the application of the
respondent no.4 with regard to the revised plan shall be
disposed of simultaneously and in accordance with law.
Inspection of the premises in question shall be made in the
presence of the parties. A report of the inspection shall be
supplied to the parties. The parties shall be at liberty to
proceed on the basis of such report and file their written
objections/versions to the same. Thereafter, a hearing shall
be given to the parties and a reasoned order shall be passed
and communicated to all concerned. The merits of the claims
and counter-claims of the parties are not to be decided by
this Court and the authorities shall decide the entire issue
fairly, independently and in accordance with law.
As it is specifically submitted by Mr. Rauf that his clients
are not continuing with the construction, this Court does not
pass any order of injunction. However, it is for the
municipality to ensure that no unauthorized construction
takes place until the disposal of the proceeding upon
deciding all the issues, including the question whether under
the facts and circumstances and as per the law, the revised
plan of the respondent no.4 could be accorded sanction or
not.
The entire exercise shall be completed within a period of
four months from date of communication of this order.
Accordingly, the writ petition is disposed of.
There will be however no order as to costs.
All parties are directed to act on the basis of server copy
of this order and the learned advocate's communication.
(Shampa Sarkar, J.)
