Sk. Ahid Ali vs The State Of West Bengal & Ors
2023 Latest Caselaw 1267 Cal

08.   20.02.2023
      Ct. No.6
      Tanmoy


                                        MAT 84 of 2023

                                        Sk. Ahid Ali
                                          -Versus-
                              The State of West Bengal & Ors.

                                             With
                                     IA No: CAN/1/2023


                       Mr. Nilanjan Bhattacharjee, Adv.,
                       Mr. Abhilash Chatterjee, Adv.,
                       Mr. Saikat Dey, Adv.
                                                    ...for the appellant.
                       Mr. Manas Kundu, Adv.,
                       Mr. Debabrata Mondal, Adv.
                                                    ...for the State.
                       .

Ms. Mekhla Sinha, Adv.

...for the Howrah Zilla Parishad.

Mr. Animesh Paul, Adv.

...for the respondent no.7.

By consent of parties, the appeal and the connected

application are taken up together for hearing.

A judgment and order dated January 10, 2023,

whereby the appellant's writ petition being WPA 28524

of 2022, was in effect dismissed, is the subject matter of

challenge in this appeal.

The respondent no.7 had on an earlier occasion

approached a learned Single Judge of this Court alleging

that the appellant herein had made unauthorized

construction without obtaining sanction from the

concerned Zilla Parishad as also without converting the

land from 'danga' to 'Bastu'. That writ petition was

disposed of by directing the District Engineer of the Zilla

Parishad to consider the representation of the

respondent no.7 and dispose of the same by a reasoned

order after observing the principles of natural justice. It

was further directed that if the District Engineer found

that the construction had been made either in violation

of a plan or without any sanctioned plan, necessary

steps shall be taken in accordance with law with regard

to the unauthorized construction.

It appears that the District Engineer, in compliance

of such order, held an inspection and after giving

opportunity of hearing to the concerned parties, passed

a reasoned order to the effect that there was an

unfinished structure of around 900 sq.ft. with nine

columns and the roof. Since the appellant admitted that

there was no sanctioned Building Plan, the appellant

was directed to demolish the structure. Aggrieved by

such order, the appellant approached the learned Single

Judge in the present round of litigation.

The learned Judge referred to the decisions of the

Hon'ble Supreme Court in the cases of Dipak Kumar

Mukherjee v. Kolkata Municipal Corpn. reported in

(2013) 5 SCC 336; Supertech Ltd. v. Emerald Court

Owner Resident Welfare Assn., reported in (2021) 10

SCC 1; Friends Colony Development Committee v.

State of Orissa reported in (2004) 8 SCC 733;

Priyanka Estates International (P) Ltd. v. State of

Assam reported in (2010) 2 SCC 27; Esha Apartments

Coop. Housing Society Ltd. v. Municipal Corpn. of

Mumbai reported in (2013) 5 SCC 357 and came to the

conclusion that since prior sanction was not obtained by

the writ petitioner from the concerned Authority, the

unauthorized construction cannot be permitted to

remain. Accordingly, the learned Judge directed

implementation of the demolition order.

Learned Advocate for the appellant says that

presently the land in question stands converted from

'danga' to 'Bastu'. Further, the Bye Law 2005 of the

Howrah Zilla Parishad and in particular, Chapter IV,

Rule 15, permits regularization of a building which has

been constructed without obtaining sanction from the

Zilla Parishad. Rule 15 reads as follows:-

"If any building is being constructed without Sanction from this Parishad before this byelaw comes into force or without any permission from Panchayat level, the applicant may regularize the said case from this Parishad by submitting as made plan with development fees or fines or both, as below.

(a) For residential building @ Rs.30/- m2 (fine only)

(b) Industrial or Commercial building @ Rs. 50/- m2 with a fine of Rs.60/- m2.

If deviation is made in construction as stated in byelaws (F.A.R. clearance etc.) after coming into force of this byelaw, a fine of Rs.600/- m2 is to be imposed on deviated portion (i.e. F.A.R., clearance) etc. If any residential building is contructed without sanction from this Parishad after implementation of this byelaw, a development fee of Rs.30/- m2 with a fine of Rs.30/- m2 is to be paid by the applicant."

Learned Advocate for the appellant says that on

November 10, 2022, the appellant made an application

online for regularization of the impugned structure.

Subsequently, after the order of the learned Single Judge

was passed, a further application was made on January

13, 2023, wherein reliance was specifically placed on the

aforesaid Rule 15. Learned Advocate says that all that

the appellant is praying is that prior to implementation

of the demolition order the application for regularization

should be disposed of.

Learned Advocate for the respondent no.7 says that

Rule 15 would not come to the aid of the appellant. The

said Rule would apply only to constructions which were

made before the Bye Law came into force. Insofar as

construction of a residential building after

implementation of the Bye Law is concerned, according

to learned Advocate, Rule 15 only contemplates payment

of fine and not regularization.

We are unable to agree with learned Advocate for

the respondent no.7 insofar as his interpretation of Rule

15 is concerned. Reading the Rule as a whole, it is clear

that the Zilla Parishad has the power under the said

Rule to regularize constructions made without sanction,

whether before or after coming into force of the 2005 Bye

Laws.

Since a representation has been made, good, bad or

indifferent, it may be appropriate for the Zilla Parishad to

dispose of the representation before implementing the

demolition order.

Accordingly, we direct the Zilla Parishad to dispose

of the appellant's representation for regularization of the

impugned structure by passing a reasoned order, in

accordance with law and the applicable Rules and

Regulations, within a period of four (4) weeks from the

date of communication of this order by the appellant to

the Competent Authority in the Zilla Parishad, after

granting an opportunity of hearing to the appellant,

respondent no.7 and any other concerned party or their

authorized representatives. If the Zilla Parishad rejects

the appellant's representation, it will forthwith proceed

to implement the demolition order. Naturally, if the Zilla

Parishad allows the appellant's representation to any

extent, to such extent the demolition order will not be

carried out.

The Zilla Parishad, while disposing of the

appellant's representation for regularization, will not be

influenced or bound by any observation in this order

including our observation pertaining to Rule 15 of the

2005 Bye Laws.

We make it clear that we have not gone into the

merits of the case. However, we express our general

disapproval of anybody making construction without

obtaining prior sanction from the appropriate Authority.

The order of the learned Single Judge is set aside.

Since we have not called for affidavits, the

allegations in the stay petition shall be deemed not to

have been admitted by the respondents.

The appeal being MAT 84 of 2023 and the

connected application being IA No: CAN/1/2023 are

disposed of.

Let urgent photostat certified copy of this order, if

applied for, be made available to the parties, upon

compliance with all necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)