Khairunnesa Bibi vs The State Of West Bengal & Ors
2023 Latest Caselaw 1276 Cal

20.02.2023
Item No. 10.
Court No.6.
    S. De
                                 M.A.T. 133 of 2023
                                         with
                                I.A. No. CAN/1/2023

                                  Khairunnesa Bibi.
                                         Vs
                           The State of West Bengal & Ors.

                     Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
                     Mr. Tanmoy Sarkar,
                     Mr. Paw2an Kr. Gupta,
                     Ms. Sofia Nessar,
                     Mr. Tanweer J. Mondal,
                     Mr. Santanu Sett,
                                       ...for the appellant.
                     Mr. Rabindra Narayan Dutta,
                     Mr. Sutanu Chakrabarti,
                                       ...for the State.
                     Mr. Sandipan Banerjee,
                     Mr. Ankit Sureka,
                     Mr. Sobhan Majumder,
                           ...for the Howrah Municipal Corporation.
                     Mr. Sarwar Jahan,
                     Mr. Jagabandhu Roy,
                     Mr. Joy Chakraborty,
                     Mr. Sandip Dinda,
                                 ...for the respondent no.5

By consent of the parties, the appeal and the

connected application are taken up together for

hearing.

A judgment and order dated January 18, 2023,

which is interim in nature, is under challenge in this

appeal. The writ petition is pending before the learned

Judge and has been directed to be listed on February

21, 2023.

The respondent no.5 herein approached the

learned Single Judge with the complaint that the

appellant herein, who had sanction for construction of

a G+2 storey building, in her favour, constructed two

additional floors. It appears that a self-demolition

order was issued and hung up on the premises in

question on November 28, 2022. The respondent

no.5/writ petitioner wanted implementation of the

demolition order.

The appellant herein submitted that an as-

made-plan has been submitted for consideration

before the Howrah Municipal Corporation.

The learned Judge observed that construction

cannot be made without a proper sanctioned plan and

the order of demolition is liable to be executed and

implemented. The Corporation was directed to ensure

that the demolition order is executed at the earliest, if

necessary, with the aid and assistance of the Police.

Being aggrieved, the private respondent in the

writ petition has come up by way of this appeal.

On behalf of the appellant it is submitted that

the appellant has made a prayer for re-sanction of the

building plan by the Corporation which, if allowed,

would in effect regularize the impugned structure. The

appellant says that in view of the available FAR and

the width of the road in front of the property, she can

make construction of two additional floors.

Learned advocate appearing for the respondent

no.5/writ petitioner strenuously disputes the

submission made on behalf of the appellant. He

further says that the application for re-sanction was

made after filing of the writ petition. He further says

that from page 69-70 of the stay petition it would

appear that the original sanction was granted by the

Corporation in 2009. Beyond five years from the date

of sanction, the plan could not be relied upon.

Learned advocate for the Corporation says that

extent of deviation from the sanctioned plan needs to

be determined by following the procedure

contemplated under Section 177 of the Howrah

Municipal Corporation Act. Apart from the additional

two floors, if deviation from the sanctioned plan is

noticed in respect of the other floors also, the same

will have to be removed as well.

Let the Corporation initiate proceedings under

Section 177 of the Howrah Municipal Corporation Act

immediately and conclude the same within four weeks

from date (March 20, 2023). The Corporation shall

give an opportunity of hearing to the appellant and the

respondent no.5 herein. Before taking any final step

for demolition, the Corporation shall dispose of the

appellant's application for re-sanction of the building

plan. Whatever decision the Corporation takes on

such application will also be after granting an

opportunity of hearing to the appellant and the

respondent no.5.

No further construction work shall be carried on

by the appellant. Needless to say if the Corporation

rejects the appellant's application for re-sanction of

building plan and finds that construction has been

made in deviation from the building plan that was

sanctioned in 2009, it will take immediate steps for

demolition of such unauthorized construction, if

necessary with the assistance of the Police. The

Officer-in-Charge of the jurisdictional Police Station is

directed to render all co-operation and assistance to

the Corporation in case of demolition of the

unauthorized structures. As a corollary, it follows that

if the impugned construction is found not to be in

deviation from the sanctioned plan, no coercive step

will be taken.

Learned advocate appearing for the appellants

submits that no useful purpose will be servied by

keeping this appeal or the writ petition pending.

The appeal being MAT 133 of 2023 is disposed of

along with the application being I.A. No. CAN/1/2023

and the writ petition being WPA 27351 of 2022.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

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