Calcutta High Court (Appellete Side)

Amit Ghosh vs The Howrah Municipal Corporation ... on 17 May, 2022

                                        1


                    IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                             WPA 20323 of 2016

                                 Amit Ghosh

                                    Versus

                The Howrah Municipal Corporation & Ors.



            Mr. Supriyo Chattopadhyay
                                                   .....For the Petitioner
            Mr. Sandipan Banerjee
            Mr. Ankit Surekha
            Ms. Utsa Dutta
                                                    .....For the HMC
            Mr. Uday Narayan Betal
            Mr. Bhaskar Hutait
                                     ......For the Respondent Nos. 5,6,7,8 & 9

Heard on                 : 07.04.2022

Judgment on              : 17.05.2022

Krishna Rao, J.: A Deed of Sale of a residential flat with car parking space

was entered between the Respondents no. 5 to 9 and the petitioner herein

on 21st April, 2014 with respect of one flat covering an area of 1279 sq.ft

inclusive of super built up area in the third floor of the building consisting of

three bed rooms being flat no. 304 in the District of Howrah. The private

respondents have supplied with the relevant documents including sanction

plan of the said building. The building plan was sanctioned for G+III floor.

The petitioner came to know that the respondents no. 5 to 9 have

started further construction over G+III without any sanction plan and

accordingly, the petitioner had made several enquiry but the petitioner was

not provided with any documents.

The Counsel for the petitioner submits that if the Howrah Municipal

Corporation granted additional sanction building plan beyond G+III, the

question of legality of such sanctioned of additional building plan is required

to be looked into as the same was granted by supressing the material fact

that at present the petitioner has become the owner of the proportionate

share of the land.

The Counsel for the petitioner further submits that the respondent

authorities are duty bound to verify as to whether there was material

misrepresentation or any fradulent act committed by the respondent nos. 5

to 9. It is further submitted that the Commissioner of the Howrah

Municipal Corporation is empowered to cancel any building permit.

The Counsel for the petitioner referring Section 177 of the Howrah

Municipal Corporation Act, 1980 submits that if any building is constructed

in contrary to the sanction building plan or in contravention of any

provisions of the act, the Commissioner may make an order to stop the work

or to demolish such illegal construction.

The Counsel for the petitioner prays for an enquiry whether any

sanction plan was lawfully granted beyond G+III in respect of 33/4/3, Kashi

Nath Chatterjee Lane, Howrah and for demolition of the unauthorized

portion of construction of the said building.

The Ld. Counsel for the respondent nos. 5 to 9 submits that initially

building plan was granted only for G+III. The petitioner is one of the flat

owner as per the Sale Deed dt. 21.04.2014. The Counsel for the respondent

nos. 5 to 9 had referred Clauses 12 and 13 of the Sale Deed and submitted

that as per the said clause the respondents have the right to raise further

construction after getting sanction from the Municipal Authorities.

The counsel for the respondent nos. 5 to 9 further relied upon clause

18 of the agreement entered between the petitioner and the respondents on

30.11.2013, prior to the execution of sale deed and as per clause 18, the

petitioner had agreed that the petitioner will not raise any objection for

construction of further storied upon the building . The Counsel for the

respondents no. 5 to 9 further submits that there are several private dispute

between the parties and the petitioner had also filed civil suit and the same

is pending before the Ld. Court of Civil Judge, Junior Division at Howrah.

The Counsel for the respondent nos. 5 to 9 further submits that the

respondent have got the sanctioned plan beyond G+III level from the

Municipal authorities on 22.06.2015 and also started booking of the flats

beyond G+III and thus third party right have been accrued and the

petitioner has not made them as party in the instant case.

The Counsel for the Howrah Municipal Corporation submits that

initially building plan was sanctioned to the extent of G+III in the year 2010.

The private respondents then raised construction above the said premises

and submitted an "As Made Plan" before the respondent authorities for

sanction of structure thereon beyond G+III level upto G+VI level. After

inspection with regard to structural stability of the said building above

G+III, plan was accorded.

Considered the rival submissions of the parties, pleadings and

documents available on record.

Admittedly initially there was a sanction plan only with respect of

G+III level. Before execution of sale deed between the petitioner and the

respondent nos. 5 to 9 with respect of one flat at third floor, the petitioner

entered into an agreement on 30th November, 2013 and clause 18 of the said

agreement reads as follows :

"Clause 18:- The 3rd party (the petitioner herein) shall have no objection if the first and second party would raise further stories upon the building of which the flat in Schedule "B" is a part nor would the third party shall stand in opposition, if the first and second party would extend the building to adjacent land of the land in Schedule A and further the third party shall have no objection if the roof top of the building or any extended building would be commercially exploited by the first and second party by leasing the same to mobile phone company or any cable supply company."

A sale deed was executed on 21st April, 2014 in between the

petitioner and the respondent nos. 5 to 9 with respect of one flat at third

floor and in the sale deed Clause 12 and Clause 13 reads as follows :

"Clause 12:- That, the roof of the building shall remain in occupation of the vendor and the confirming party and the same shall be used by the flat owners only for the purpose of fixing their TV antennas.

Clause 13- That, the vendor and the confirming party shall have the right to raise further construction upon the roof of the building in question upon getting sanction from the Municipal authorities and ultimately the vendor and confirming party can set up mobile tower without causing any injury to the structures of the building and the flat owners or any other person in possession of the building shall have no right to oppose the vendor and confirming party to do as such."

The respondent nos. 5 to 9 have raised further construction upon

G+III structure and "as made" plan was submitted before the authorities

and the authorities have granted plan for further three floors.

Vide order dated 28.01.2022, this Court had directed the Municipal

Authority to file supplementary affidavit by enclosing all documents

including stability certificate and sanction plan of the building and

accordingly the Municipal Authorities have filed the stability certificate and

the sanctioned plan.

The structural certificate issued by the Structural Engineer on

12.08.2014 reads as follows :

"Ref. Holding No. 33/4/3 Kashinath Chatterjee Lane, Ward No.-33 under Howrah Municipal Corporation, Dist-Howrah.

This is to certify that the construction of 3 No of floor above the existing G+3 building at Holding No. 33/4/3 Kashinath Chatterjee Lane, Ward No- 33 under Howrah Municipal Corporation, Dist- Howrah. Will execute the construction work under my supervision and structure of said building will be strong and all the relevant code will be followed for designing the structure of the building. This is to certify that the construction of 3 No of floor above the existing G+3 storied structure of the building of above project is designed so as to have Earthquake Resistance and the foundation is designed according to safe bearing capacity of soil."

On perusal of the structural certificate, the Howrah Municipal

Corporation had directed the private respondent to deposit the retention fees

of further three floors as per the order passed by the Mayor and on receipt of

the retention fee the Municipal Authorities have granted plan upto G+VI i.e.

partly 3rd floor and three floors above the G+III structure for retain the

structure.

As per the Clauses of the Agreement and Sale Deed the petitioner had

agreed that the respondent nos. 5 to 9 have the right to raise further

construction upon the roof of the building upon getting sanction from the

Municipal Authority and as per record the Municipal authority has granted

plan to the respondent nos. 5 to 9 for construction of further three floor i.e.

G+VI after considering the structural stability certificate and thus this Court