Calcutta High Court (Appellete Side)

Swami Santadas Institute Of ... vs Kolkata Municipal Corporation & ... on 20 July, 2022

                                        1


                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION

                               APPELLATE SIDE




                           W.P.A. 5763 of 2016
              IA No. CAN 1 of 2017 (Old No. CAN 2467/2017)
              IA No. CAN 2 of 2017 (Old No. CAN 7510/2017)
              IA No. CAN 3 of 2019 (Old No. CAN 8783/2019)



               Swami Santadas Institute of Culture & Ors.

                                     Versus

                      Kolkata Municipal Corporation & Ors.




For the Petitioners        : Mr. Raghunath Chakraborty, Adv.
                            Mr. Bratin Kr. Dey, Adv.
                            Mr. Pradeep Pandey, Adv.


For the KMC                : Mr. Alok Kr. Ghosh, Adv.
                            Mr. Swapan Kr. Debnath, Adv.


For the Respondent Nos.

7&8                        : Mr. Partha Sarathi Deb Barman, Adv.
                            Mr. Amit Gupta, Adv.
                            Mr. Dwaipayan Basu Mallick, Adv.
                            Mr. Swarajit Dey, Adv.
                            Mr. Subhadeep Basak, Adv.


Hearing concluded on : 13.07.2022.



Judgment On              : 20.07.2022


Saugata Bhattacharyya, J.:

This writ petition centers around nature of construction carried out in

premises no. 101, Dr. Meghnad Saha Sarani, Kolkata - 700029, under the

jurisdiction of Kolkata Municipal Corporation.

It has been submitted by Mr. Raghunath Chakraborty, learned

advocate representing the petitioners a notice under section 400 (1) of The

Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the "said

Act of 1980") was issued to the petitioner no. 2 on 2nd April, 2012.

Subsequently, the matter was considered by Joint Municipal Commissioner

(REV) and an order was passed on 2nd August, 2012 wherein it has been

held that entire construction at the 2nd floor and 3rd floor of the said

premises is unauthorized as per the structures marked in the D-Sketch. It

was also found by the said Joint Municipal Commissioner that the entire

building was sanctioned for residential purpose but according to the report

the portions at the 2nd floor and 3rd floor are being used for non-residential

purpose. On finding such facts relating to erection of unauthorized

construction the Joint Municipal Commissioner passed an order directing

the Person Responsible (PR) to demolish the said unauthorized

constructions at the 2nd floor and 3rd floor of the said premises within fifteen

days. Such decision of the Joint Municipal Commissioner dated 2nd August,

2012 has been questioned by the writ petitioners by preferring an appeal

before the Municipal Building Tribunal, KMC and subsequently, the said

appeal being B.T. Appeal No. 91 of 2012 was dismissed vide order dated 25 th

February, 2016. The appellate authority being the Chairman of the

Municipal Building Tribunal, KMC while dismissing the appeal has upheld

the decision of Joint Municipal Commissioner.

The said order of the appellate authority dated 25th February, 2016

upholding the decision of the Joint Municipal Commissioner dated 2nd

August, 2012 whereby direction was given to demolish illegally constructed

portions at 2nd and 3rd floor of the premises in question, is under challenge

in the present writ petition.

It has been argued on behalf of the petitioners who is a tenant of the

said premises that show-cause notice dated 2nd April, 2012 did not

accompany précis and D-Sketch which violates the established procedure

and denying the right of the petitioners to present their case before the

appellate authority. It has also been submitted that the address of the

premises is 200 C.I.T. Scheme but the notice under section 400(1) of the

said Act of 1980 was issued in connection with premises no. 101, Dr.

Meghnad Saha Sarani. According to the petitioners since the address of the

said premises is 200, C.I.T. Scheme such notice in relation to premises no.

101, Dr. Meghnad Saha Sarani is not maintainable. It has further been

argued that it appears from the said notice dated 2nd April, 2012 that

though under section 400(1) notice has been issued for initiation of

demolition proceeding but there is no notice under section 416(5) of the said

Act of 1980 in relation to change of user since a case has been made out

before the concerned authorities of the municipality that a residential

building has been unauthorizedly used by the petitioners for commercial

purpose. According to the petitioners in absence of the valid notice under

section 416(5) of the said Act of 1980 the order passed by the appellate

authority dated 25th February, 2016 cannot stand. The next point taken on

behalf of the petitioners again on reference to the notice dated 2nd April,

2012 that though certain Building Rules have been referred to while issuing

notice under section 400(1) on the allegation of infringement of such

Building Rules but on perusal of the order of the appellate authority it does

not appear that while taking decision against the writ petitioners any finding

has been made based on violation of such Building Rules as indicated in the

notice dated 2nd April, 2012. Lastly, it has been argued that there is error on

the part of the KMC authorities in identifying the Person Responsible (PR)

for such unauthorized construction at the premises in question. According

to the petitioners deceased owner of the said premises namely Gita Dutta

made such unauthorized construction but the petitioners have been found

to be Person Responsible (PR) which is impermissible. Based on such

submission point of non-joinder of party has been raised to the extent of

non-participation of owner of the premises.

In support of the case made out in the writ petition following

judgments have been relied upon by the petitioners:-

i) (2011) 6 SCC 570 (J.S. Yadav vs. State of Uttar Pradesh And

Another); paragraph 31;

ii) 2015 (3) CHN (Cal) 637 (Bhagirath Pasari vs. Municipal

Commissioner, Kolkata Municipal Corporation); paragraph 15;

iii) 2011 (2) CHN (Cal) 36 (Padrone Marketing vs. Controller of

Thika Tenancy); paragraph 31;

iv) 2006 (4) CHN 136 (Laddu Gopal Bajoria & Anr. vs. Kolkata

Municipal Corporation & Ors.); paragraph 52;

v) Unreported judgment of coordinate Bench on writ petition being

WPA 647 of 2017 (M/s. Anjanli Jewellers Vs. Kolkata Municipal

Corporation and Ors.);

Mr. Alok Kumar Ghosh, learned advocate is representing the Kolkata

Municipal Corporation has defended the decisions first taken by Joint

Municipal Commissioner dated 2nd August, 2012 and subsequently by the

Chairman, Municipal Building Tribunal being the appellate authority dated

25th February, 2016. It has been submitted on behalf of the KMC that there

is no error on the part of the appellate authority in identifying the

petitioners as Person Responsible (PR) and has drawn attention of this Court

to the relevant part of the decision of the appellate authority dated 25th

February, 2016 wherein the appellate authority made the finding that Gita

Dutta being the owner of the said premises may have made the construction

on the 2nd and 3rd floor of the said premises unauthorizedly but the

petitioners are beneficiaries to such unauthorized construction and the

expense of such construction was borne by the petitioners. It has been

submitted that the appellate authority has rightly found the petitioners

being Person Responsible (PR) for carrying out such unauthorized

construction in the premises in question. It has further been submitted on

behalf of the KMC that the said premises was originally numbered as 200,

C.I.T. Scheme and subsequently renumbered as 101, Southern Avenue and

lastly renumbered as 101, Dr. Meghnad Saha Sarani. Therefore, there is no

flaw as it has been submitted in issuing notice in connection with premises

no. 101, Dr. Meghnad Saha Sarani under section 400(1) of the said Act of

1980 to the petitioner no. 2.

It has also been submitted on behalf of the KMC that two proceedings

were initiated against the petitioners one under section 400(1) for making

unauthorized construction and another for change of user since the

premises was scheduled to be used for residential purpose but without

obtaining any necessary permission from the concerned authority of the

KMC the said premises was used for commercial purposes for which a

proceeding under section 416 of the said Act of 1980 was also contemplated.

On relying upon the notice dated 2nd April, 2012 it has been argued for the

KMC that this is not only a notice under section 400 at the same time this

notice ought to be construed also under section 416 since it has been stated

in the said notice itself that there is an infringement of provision under

section 416. Submissions have been made that there is no express bar in

issuing joint notice under section 400 and section 416 of the said Act of

1980. Lastly it has also been submitted on the point taken by the petitioners

on absence of notice under section 416 that even if the said notice dated 2 nd

April, 2012 to be construed to be a notice only under section 400 and if the

proceeding initiated under section 416 is abandoned by no stretch of

imagination petitioners can be permitted to use and enjoy the construction

made on the 2nd and 3rd floor of the said premises in question since such

construction has been made without obtaining sanctioned plan from the

KMC as it has been found by the appellate authority while passing order

dated 25th February, 2016.

Private respondent nos. 7 and 8 are represented by Mr. Partha Sarathi

Deb Barman, learned advocate who has submitted that Gita Dutta since

deceased was a trustee and premises in question is a trust property.

Subsequently, respondent nos. 7 and 8 have been inducted as trustees.

Respondent no. 7 has participated in the proceeding as it appears from the

order dated 2nd August, 2012 passed by the Joint Municipal Commissioner

which reveals that respondent no. 7 made written complaint against such

unauthorized construction made by the Person Responsible (PR) without

obtaining sanctioned plan from the concerned authorities of KMC.

Therefore, it has been contended that the point of non-joinder of parties as

taken by the petitioners in the context of demise of Gita Dutta who made the

illegal construction as argued by the petitioners cannot stand since the

respondent nos. 7 and 8 have stepped into the shoes of said Late Gita Dutta

on being inducted as trustees and the proceeding may not fail on the ground

of non-joinder of necessary/proper parties.

It has also been submitted on behalf of the private respondent nos. 7

and 8 that two proceedings one under section 400 and another under

section 416 have been initiated against the petitioners and according to the

said private respondents the notice dated 2nd April, 2012 is a combination of

notice under section 400 as well as under section 416 of the said Act of

1980. In reference to the relevant provisions of the said Act of 1980 it has

also been submitted that there is no express bar in issuing combined notice

one under section 400 and another under section 416. Therefore, according

to the respondent nos. 7 and 8 the said notice dated 2nd April, 2012 cannot

be faulted.

Furthermore, on placing reliance on the order passed by the

Chairman, Municipal Building Tribunal dated 25th February, 2016 it has

been submitted that all the points taken by the petitioners in order to throw

challenge to such decisions have been taken care of by the appellate

authority while confirming the decision of the Joint Municipal Commissioner

dated 2nd August, 2012. Therefore, it has been submitted that the decision

of the appellate authority may not be interfered with.

This Court has heard the learned advocates representing the parties

and perused the relevant materials available on records.

Considering submissions made on behalf of the petitioners while

throwing challenge to the decision of the appellate authority dated 25th

February, 2016 it has been argued that notice did not accompany précis

and D-Sketch which violates principle of natural justice. If this Court

presumes that D-Sketch plan and précis were not supplied along with the

said notice but how does it prejudice the petitioners in defending their case

before the concerned authorities of KMC has not been demonstrated before

this Court in spite of posing query to the learned advocate representing the

petitioners. The relevant part of the order of the appellate authority goes to

show that the D-Sketch plan contained the signature of Assistant Engineer

(Civil) which is part of the case record however, it has been fairly admitted

by the respondents that such D-Sketch plan though was signed by the

Assistant Engineer (Civil) does not bear date. It has also been stipulated

therein that there is no other D-Sketch plan apart from the same which

forms the part of the case record. There is nothing on record which goes to

show that the petitioners made an approach to the authorities for supply of

D-Sketch plan and it has not been demonstrated before this Court that how

non-supply of D-Sketch plan and précis had prejudiced the petitioners. It

has also been duly recorded in the order of appellate authority that the

petitioners filed written submission dated 11th May, 2012/10th May, 2012

through the learned advocate and was given opportunity of being heard.

Another aspect which has to be taken into consideration while

adjudicating the issue involved in this writ petition is whether permission

was obtained from the concerned authority of Kolkata Municipal

Corporation while erecting construction at the 2nd and 3rd floor of the said

premises in question. This Court has perused the relevant documents

including orders passed by the appellate authority as well as the Joint

Municipal Commissioner wherefrom it does not appear that there is grant of

sanction plan in favour of the petitioners or trustee of the said premises or

the then trustee of the said premises namely, Gita Dutta since deceased. In

absence of sanction plan being accorded in favour of the petitioners or

erstwhile trustee nothing turns on non-supply of D-Sketch plan and précis

to the petitioners and it does not appear to this Court that the outcome of

the proceeding initiated under section 400 would have been different had

the petitioners been permitted to deal with the said D-Sketch plan and

précis. Fact remains that petitioners were given opportunity to participate in

the proceeding and accordingly they participated and in the said proceeding

the concerned authority of KMC found that the construction made by the

erstwhile trustee/ owner of the said premises which was financed by the

petitioners cannot be maintained in absence of necessary permission.

In this context this Court is tasked to consider other points taken on

behalf of the petitioners. It has been argued by the petitioners that

combined notice under section 416(5) and section 400(1) is not permissible

but on perusal of relevant provision of the said Act of 1980 it does not

appear that there is any express bar in issuing such notice. In addition

thereto if it is presumed that the proceeding initiated under section 416 is

abandoned in that event also petitioners cannot be permitted to use the

construction made at the 2nd and 3rd floor of the premises in question since

the same was erected without obtaining necessary sanction plan. Therefore,

in appreciation of the facts it appears to this Court that the proceeding

initiated under section 400(1) was required to be brought to logical

conclusion.

It also appears that attempt has been made on behalf of the

petitioners to the extent of issuing notice in connection with premises no.

101, Dr. Meghnad Saha Sarani which according to the petitioners is

impermissible since the premises in question was initially numbered as 200,

C.I.T. Scheme. Such issue has been deliberated upon by the appellate

authority as it appears from its order dated 25th February, 2016 wherein it

has been recorded that the premises in question was initially numbered as

200, C.I.T. Scheme and subsequently renumbered as 101, Southern Avenue

and lastly renumbered as 101, Dr. Meghnad Saha Sarani. In view of such

finding which has been made by the appellate authority on consulting its

record it does not appear that the notice issued in connection with premises

no.101, Dr. Meghnad Saha Sarani is flawed.

The argument advanced on behalf of the petitioners that there is

mistake on the part of the respondent authorities in identifying the

petitioners as Person Responsible (PR) when construction was made by

erstwhile trustee/owner Gita Dutta, is in desperation. It has been rightly

pointed out by Mr. Ghosh, learned advocate representing KMC that apart

from the petitioners being the tenant of the said premises no other persons

are coming forward in support of the construction made at the 2nd and 3rd

floor of the said premises in question which is without any sanction plan;

that goes to show that the present petitioners are only interested parties to

protect such unauthorized construction notwithstanding the exercise being

made by the appellate authority in identifying the petitioners as Person

Responsible (PR). The effort made by the petitioners by instituting the

present writ petition in order to retain the unauthorized construction goes

long way to show that it has been rightly identified by the concerned

authorities of KMC that the petitioners are the Person Responsible (PR).

In addition thereto it has also been found that present trustee being

respondent no. 7 has participated in the proceeding and the petitioners

being Person Responsible (PR) as rightly pointed out by the authorities of

KMC; petitioners failed to substantiate the point of non-joinder of parties as

argued. Therefore, paragraph 31 of J. S. Yadav (Supra) is of no help since

the proceeding initiated by the KMC authority as it is found by this Court

does not suffer from non-joinder of parties. Other aforementioned judgments

relied upon on behalf of the petitioners do not come in aid since ratio

decided therein are on different context and it is well settled that the

judgment is an authority on what it decides and not what can be deduced

therefrom.

Lastly, this Court by passing order dated 6th June, 2022 directed the

concerned authority of the KMC to inspect the premises in question and to

submit a report whether in terms of third proviso to section 400(1) of the

said Act of 1980 regularisation of alleged construction can be made or not?

Pursuant to such direction Municipal Commissioner, KMC submitted a

report dated 30th June, 2022 which was filed before this Court on 5th July,

2022. The relevant part of the said report is reproduced below:-

"From the said report as submitted by Deputy Chief Engineer (Civil)/Bldg./North it highlights that on inspection several unauthorized construction made with fibre shed as well as asbestos shed and the unauthorized structures have been constructed at ground floor, 2nd floor and 3rd floor. Furthermore, D-Sketch plan vide D-Case No. 02- D/VIII/2012-13 is found wherefrom the unauthorized construction area approximately 298.396 sq.m. The report also reflects that the condition of the said unauthorized structure are in a very much dilapidated which may cause any accidental hazards during any cyclonic storm with heavy rainfall and in the said report it is clear that the said unauthorized structure as raised cannot be regularized by

applying third proviso of section 400(1) of the KMC Act, 1980 read with Kolkata Municipal Corporation (Regularization of building) Regulation, 2015.

From the D-Sketch drawing as produced before me wherefrom it reflects that the said unauthorized construction has been raised at ground floor, 2nd floor and 3rd floor its total area admeasuring 298.396 sq.m. equivalent to 3212 sq.ft. which may not be treated as minor deviation as because the actual sanction granted in the said premises is 713.25 sq.m. equivalent to 7677 sq.ft. The percentage of unauthorized construction is 41.84% approximately."

This Court gave direction upon the concerned authority of the KMC to

submit a report whether on applying third proviso to section 400(1) of the

said Act of 1980 the alleged construction can be regularized or not instead

of giving effect to the decision of the appellate authority dated 25th February,

2016. Surprisingly on perusal of the report which indicates the magnitude of

unauthorized construction carried out by the petitioners being Person

Responsible (PR) with the help of erstwhile trustee/owner since deceased it

would be improper to pass an order which would impinge upon the said

decision of the appellate authority dated 25th February, 2016 thereby

permitting the petitioners to enjoy such unauthorised construction

perpetually.

Accordingly, this Court does not find any merit in the writ petition and