Calcutta High Court (Appellete Side)
Bholanath Sahu vs The State Of West Bengal & Anr on 24 February, 2023
24.02. 2023
item No.25
n.b.
ct. no. 551 CRR 3150 of 2018
With
IA No. CRAN 4 of 2021
Bholanath Sahu
Vs.
The State of West Bengal & Anr.
Ms. Baisali Sharma,
... for the Petitioner.
Mr. Goutam Dinda,
Mr. Anindyasundar Chatterjee,
... for the K.M.C.
Mr. Saswata Gopal Mukherjee, P.P.,
Mr. Imran Ali,
Mrs. Debjani Sahu
.... For the State
State is represented.
Learned advocate for the KMC is present with the report.
Perused the report.
Learned advocate for the petitioner submits an order
passed by the Special Officer (Building) K.M.C. on 08.09.2017 in
respect of suit floor of the said building.
The instant criminal revisional application has been
preferred by the present petitioner for setting aside of the order and
judgment dated September 13, 2018 passed by the learned
Additional District & Sessions Judge, Fast Track Court No.II,
Bichar Bhawan, Calcutta in Criminal Appeal No.84 of 2016 thereby
affirming the judgment and order dated July 30, 2016 passed by
the learned Municipal Magistrate, 3rd Court, Calcutta in M.F. Case
2
No.104 of 2016 arising out of Netaji Nagar P.S. Case No.40 dated
04.02.2016
under Section 401(A) of the K.M.C. Act, 1980.
Learned advocate for the petitioner submits that he was
arrayed an accused in the said case initiated by the KMC wherein
the impugned judgment was passed by the learned Municipal
Magistrate, 3rd Court, Calcutta on 30.07.2016. After the order was
passed he preferred an appeal and during continuation of the
appeal he made necessary application before the appropriate
authority of the KMC for regularization of the same. After hearing
the petitioner, KMC had regularized the first floor of the said suit
building at Premises No.1/5A, Netaji Nagar, Kolkata - 700092. By
virtue of the said order the Special Officer (Building), K.M.C. has
ordered that:
"(B) I do not pass any order of demolition in respect of
unauthorized constructions so far done by P.R for the rest portion i.e.
ground and 1st floors but to retain and regularize the same subject to
compliance with the following pre conditions, within 15 days from
the date of the communication of this order. Those conditions are:
(1) that the P.R must produce a certificate from any KMC
paneled Structural Engineer certifying that (a) the
structural stability and the foundation of the impugned
construction are safe and sound and the materials used
as well as workmanship are as per the latest edition of
NBC of India and (b) Necessary terms of conditions as
per clause : 4 of K.M.C. (Regularization of building)
Regulations, 2015 for minor deviation have been duly
considered and
(2) that he must furnish an affidavit declaring on oath that
they will not make any construction whatsoever in the
impugned premises without prior sanction from the KMC
authority and
(3) that he must pay the necessary retention charges for
the works as stated in (B) above and necessary
infringements to the KMC as calculated by the
department in a separate sheet of paper attached and
supplied with this final order.
On non compliance of either of the conditions within the
above stated specified period the KMC authority shall
demolish the same at the cost and at the risk of the P.R.
Let the copies of this order be delivered to the parties
concerned for information and necessary action."
In compliance of the said order the petitioner also
deposited total regularization fees amounting to Rs.84,793/- on
14.06.2018. The petitioner also annexed one Stability Certificate in
respect of 1st floor of the Premises No.1/5A, Netaji Nagar, Ward
No.98, Borough - X, Kolkata - 700092. After perusing the money
receipt and order of the KMC learned advocate for the KMC raised
strong objections and submitted that by virtue of order the
petitioner has to comply with all formalities stated in the order. He
further argued that it is not clear before this Court that whether the
petitioner has already complied with the order passed by the KMC
or not.
Heard the learned advocates and perused the impugned
order passed by the Learned Municipal Magistrate. It appears that
the KMC has the provision to regularize the authorized
construction as per the provisions of law and accordingly, they
have levelled some fine upon the petitioner. The fine was duly
deposited, so at this juncture, the order passed by the Learned
Municipal Magistrate has no force and is liable to be set aside.
Considering the entire submissions, report of the KMC
and the documents regarding the order of the Special Officer
(Building), KMC and also after perusing the Stability Certificate it
appears to me that a report is necessary from the KMC to justify
whether the petitioner has complied with all the formalities as
enshrined in the order of Special Officer (Building), KMC on
18.09.2017 or not.
Learned advocate appearing on behalf of the KMC is
directed to submit a detailed report regarding the submission of
Stability Certificate and other formalities whether complied by the
petitioner or not before this Court on the returnable date, thereafter
the final order would be passed.
List the matter on March 24, 2023.
Interim order passed by this Court earlier is hereby
extended till the returnable date.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
(Subhendu Samanta, J.)
