Calcutta High Court
Ashok Singh Rajput & Anr vs The Kolkata Municipal ... on 21 November, 2022
OD-5 ORDER SHEET
WPO No. 2916 of 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
ASHOK SINGH RAJPUT & ANR.
VS.
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date: 21st November, 2022.
Appearance:
Mr. Raghunath Chakraborty, Mrs. Sonali Ghosh Basu,
Mrs. Sonali Sengupta, Advocates for the Petitioners.
Mr. R. Chatterjee , Mr. Arijit Dey, Advocates for KMC.
The Court:-The immediate cause of action for filing the present
writ petition is a communication dated 14th October, 2022 by the
Executive Engineer (Civil)/ Building, Borough Nos. XIII & IV, Kolkata
Municipal Corporation, intimating the petitioners that as per order
passed by the Municipal Building Tribunal vide No.56 dated 30th
May, 2022, the order passed by the Special Officer (Building) dated
21st December, 2013 is to be carried out failing which necessary
action will be taken.
The matter relates to the premises No.63, Mitra Colony, Ward
No.121, Borough No. XIII under the jurisdiction of the Kolkata
Municipal Corporation. In respect of the aforesaid premises, a
Demolition Case being No.39-D/XIV/2012-13 was initiated.
The person responsible was directed to demolish the
unauthorized construction of the office rooms on the western portion.
The person responsible made unauthorized construction at the
ground floor by converting the car parking space into an office space.
At the time of consideration of the demolition proceedings, the person
responsible filed an application for regularisation of the unauthorized
construction.
The Special Officer (Building), Kolkata Municipal Corporation by
an order dated 21st December, 2013 clearly mentions that no order
can be passed for change or for regularisation of any unauthorized
construction on the plea that the person responsible/promoters and
the flat owners have arrived at an agreement in the meantime.
The Special Officer (Building), Kolkata Municipal Corporation held
that the person responsible cannot be allowed to convert any car
parking space into an office and the provision of the car parking
space as required according to the plan cannot be allowed to be
converted.
Being aggrieved by the order passed by the Special Officer
(Building), Kolkata Municipal Corporation, the person responsible
approached the learned Municipal Building Tribunal by preferring
appeal being B.T.A. No.34 of 2014. The appeal was fixed for judgment
on 30th May, 2022.
On the said date, the appellant filed a petition praying for
withdrawal of the appeal. Learned Municipal Building Tribunal
recorded in the order dated 30th May, 2022 that the judgment is
ready but the appellant does not want to proceed with the appeal any
further. Passing of the judgment stood postponed. The appellant was
permitted to withdraw the appeal at his own risk with a direction not
to re-file the appeal further in future against the order before the
learned Municipal Building Tribunal. All the interim orders passed by
the Tribunal stood recalled.
The petitioners claim that they were not aware of the demolition
proceeding and accordingly, they did not approach the learned
Municipal Building Tribunal for relief.
After the service of the letter dated 14th October, 2022, the
petitioners claim to have got knowledge of the demolition proceedings
and seek leave before this Court to challenge the order passed by the
Special Officer (Building), Kolkata Municipal Corporation.
It has been submitted that the promoters/the person responsible
did not intimate the petitioners with regard to pendency of the
demolition proceeding and the petitioners were in complete dark
about the same.
Prayer has been made to permit the petitioners to challenge the
order passed by the Special Officer (Building), Kolkata Municipal
Corporation.
The prayers of the petitioners have been opposed by the learned
advocate representing the Kolkata Municipal Corporation.
It appears from the submissions made on behalf of the parties
and upon perusal of the materials on record that the petitioners
purchased the property in August, 2013. The demolition case is of
the year 2012-2013. The order of demolition was passed by the
Special Officer (Building), Kolkata Municipal Corporation way back
on 21st December, 2013.
Admittedly, the portion which the petitioners purchased is an
unauthorized one. The same is a car parking space converted to an
office space and sold out to the petitioners as bedroom. The schedule
of the deed of sale of the petitioners does not mention about any
office room. It speaks about a self contained flat of the super built-up
area 900 sq. ft. consisting of two bedrooms, one kitchen-cum-dinning
space and one toilet in the ground floor. The office space is not
mentioned at all.
The petitioners prior to purchasing the property and before
execution of the sale deed, ought to have taken proper information as
to whether the property in question has been constructed in
accordance with the provision of law or not. Purchasing a property
constructed illegally, facing an order of demolition, does not entitle
the petitioners to hold on to the same.
The Court does not accept the contention of the petitioners that
they were not aware of the demolition proceeding. The said
proceeding continued for nearly ten years before the Special Officer
(Building) and thereafter before the Municipal Building Tribunal. The
petitioners never took steps to be impleaded or add themselves as
parties to present their case before the appellate forum.
Assuming that the petitioners were not made aware of the
demolition proceedings, even then the petitioners cannot be
permitted to enjoy the portion which has been constructed illegally
and is facing an order of demolition. If the prayer of the petitioners is
accepted, the builders who raise construction in violation of the
sanctioned plan, will always try to enjoy the unauthorized portion by
adopting all sorts of illegal tactics and resorting to technical issues.
The ploy of the petitioners to retain the portion constructed
illegally by converting car parking space to either bedroom or office
space cannot be accepted at all.
The order of demolition passed by the Special Officer (Building),
Kolkata Municipal Corporation has attained finality and is liable to be
complied with at the earliest.
The Court is not inclined to exercise jurisdiction in the matter.
The writ petition fails and is hereby dismissed.
Affidavit of service filed in Court today is taken on record.
Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance of all legal formalities.
(AMRITA SINHA, J.)
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