Calcutta High Court
Subrata Poddar vs The Kolkata Municipal ... on 3 August, 2023
OD-2
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO/108/2023
with
WPO/1433/2023
GA/1/2023
SUBRATA PODDAR.
VERSUS
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
And
The Hon'ble JUSTICE APURBA SINHA RAY
Date : August 3, 2023.
Appearance:
Mr. Raghunath Chakraborty, Adv.
Mr. Supratik Syamal, Adv.
Ms.Sabarnee Chatterjee, Adv.
..for the appellants
Mr. Gopal Chandra Das Adv.
Mr. Dwijadas Chakraborty, Adv.
.for the KMC
The Court: A judgment and order dated July 24, 2023
whereby the appellant's writ petition being WPO/1433/2023 was
dismissed by a learned single Judge of this Court, is the subject
matter of challenge in this appeal.
It appears that the appellant/writ petitioner obtained
sanction of a plan from Kolkata Municipal Corporation for raising
a three storied residential building. It further appears that the
appellant and other co-tenants constructed two additional floors
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in deviation from the sanctioned plan. KMC issued stop work
notice and thereafter initiated steps for dealing with
unauthorized portion of the construction. The appellant, on July
17, 2023, made an application for regularization of the
unauthorized portion of the construction.
It appears that people from Corporation, visited the
property in question and asked the appellant and other tenants
to remove the unauthorized portion. At this stage, the appellant
approached learned single Judge with the instant writ
application.
The learned Judge observed that there is no law which
supports the contention of the writ petitioner that a construction
made without obtaining prior sanction from the sanctioning
authority, may be regularized subsequently. The learned Judge
also observed that the application for regularization was made on
July 17, 2023 and apprehending initiation of demolition
proceeding, the writ petition was affirmed on July 19, 2023 and
the writ petition does not appear to be a bonafide one. With the
aforesaid observations, the learned Judge dismissed the writ
petition. Hence, this appeal.
We have heard learned Counsel for the parties.
Apparently, we find no infirmity in the order under appeal.
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However, since the third proviso to Section 400(1) has been
introduced in the KMC Act and relevant rules have been framed
in 2015, it may not harm anybody if the Corporation first takes a
decision on the appellant's application for regularization before
proceeding to demolish the unauthorized portion.
Accordingly we direct the Municipal Commissioner or
his delegatee in KMC to take a reasoned decision on the
appellant's application for regularization of the impugned
structure, in accordance with law and the applicable rules,
within a period of 3 weeks from the date of communication of
this order to the Municipal Commissioner or his delegatee, after
granting an opportunity of hearing to the appellant or his
authorized representative and any other concerned party.
Needless to say, if the appellant's application for
regularization is allowed, the question of demolition may not
arise. However, if such application is rejected by the Municipal
Commissioner or his delegatee, KMC shall proceed to demolish
the impugned structure in accordance with law.
We clarify that we have not gone into the merits of the
case at all. We are not binding the hands of the Municipal
Commissioner or his delegatee in KMC to decide the appellant's
application in any particular manner. He will decide the
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application in accordance with the relevant rules and
regulations.
The order under appeal is set aside to the extent
indicate above.
Both the appeal and the application are disposed of.
Since the respondents have not filed any affidavit-in-
opposition, the allegations made are deemed not to have been
admitted by the respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY J.)
dg/
