Calcutta High Court
Dr. Mrs. Sarmila Chandra vs The Kolkata Municipal ... on 9 February, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
WPO 906 of 2022
DR. MRS. SARMILA CHANDRA
VS.
THE KOLKATA MUNICIPAL CORPORATION & ORS.
For the writ petitioners :- Mr. Raghunath Chakraborty, Adv.
For the KMC :- Mr. Biswajit Mukherjee, Adv.
Ms. Manisha Nath, Adv.
For the State :- Mr. Naba Kumar Das, Adv.
Hearing concluded on :- 09.02.2023
Judgment on :- 09.02.2023
Amrita Sinha, J.:-
The Court:-The writ petition is in connection with illegal and unauthorized
construction at 66, Biplabi Rash Behari Bose Road, Kolkata-700 001.
According to the petitioner, there has been massive unauthorized construction
at the subject premises. In an earlier writ petition filed by the petitioner being WPO
No.161 of 2021, the Court, by order dated 13.04.2021, directed the men and agents
of the Kolkata Municipal Corporation to conduct an inspection of the premises
upon prior notice to all the parties. If any unauthorized construction is detected,
then necessary steps were to be taken to deal with the same.
Report of inspection conducted in compliance of the aforesaid order mentions
that the department observed that there is an existing four storied structure, old
enough and no new construction is in progress. The said report has been signed by
three engineers of the Corporation on 3rd November, 2021.
A further writ petition was filed by the petitioner being WPO No.1150 of 2021
challenging the said report and alleging that the same does not disclose any
unauthorized construction complained of.
2
The private respondent, who was impleaded in the said writ petition, denied
taking responsibility of the alleged construction. The Court was of the opinion that
the inspection report dated 3rd November, 2021 is of no consequence and by order
dated 24th November, 2021 directed further inspection to be conducted upon notice
and the proceeding to reach its logical conclusion.
Further inspection was conducted upon notice. The inspection report signed
by the Executive Engineer [Civil]/Building Department on 24th December, 2021
mentions that the inspection revealed an existing partly five and partly six storied,
old building at the site and no new construction was detected. The building is fully
occupied and used for commercial purpose in a congested area.
The petitioner refers to the schedule of a deed of lease executed on 04.02.1982
in respect of the said property wherein the property is described as a two storied
building with open, vacant third floor roof.
The learned advocate appearing on behalf of the petitioner submits that in the
year 1982 when the lease deed was executed, the structure was a two storied
building with vacant third floor roof whereas on 03.11.2021 when the building was
inspected, it was found that there is an existing four storied structure with no new
construction work. Inspection report dated 24th December, 2021 reveals that the
structure is partly five and partly six storied.
The petitioner contends that in the absence of proper sanctioned plan, no
construction can be said to be authorized and irrespective of the fact that the
construction is an old one, the same is liable to be demolished in terms of the
Kolkata Municipal Corporation Act, 1980.
The petitioner relies upon the provisions of Sections 29K, 40, 400 and 402 of
the Act. Reference has also been made to the judgment delivered by this Court in
Mohanlal Mitra & Anr. Vs. Kolkata Municipal Corporation, reported in 2005(3) CHN
282 paragraphs 17 and 19, wherein the Court held that under the Kolkata
Municipal Corporation Act there is no prescribed period of limitation with regard to
taking action against unauthorized construction by the Kolkata Municipal
Corporation. Construction of an additional floor without any sanctioned plan
cannot be termed as mere deviation of minor nature.
Learned advocate representing the Kolkata Municipal Corporation submits
that the occupiers of the subject premises is not at all cooperating in the process of
enquiry and the department does not have any records of the sanctioned plan of the
subject premises. The construction in question is an old one and fully occupied.
The Corporation is not in a position to take a decision as to whether the said
construction is an authorized one or not. Notices were affixed at various places in
the walls of the subject building seeking details of the construction made, but there
has been no response from any person.
It has been submitted that an initial writ petition was filed by the petitioner
seeking regularization of the construction made but thereafter the said writ petition
stood withdrawn by the petitioner.
Learned advocate for the petitioner has clarified that the petitioner never
sought for regularization of any structure made unauthorizedly, but at the same
time, being the co-owners of the subject premises, the petitioner does not take
responsibility of any structure that has been constructed unauthorizedly, without
obtaining any sanction from the Corporation.
From the inspection report annexed to the writ petition, it appears that the
engineers of the Corporation inspected the site on 07.09.2021 and again on
22.09.2021 but failed to detect any new construction work in the existing four
storied building. In the inspection report signed by the Executive Engineer on
24.12.2021, it has been mentioned that the structure in question is partly five and
partly six storied. The engineers of the Corporation failed to detect that between
September, 2021 and December, 2021 the existing four storied structure has been
raised to partly five and partly six storied structure.
It is quite surprising that two additional floors were constructed within a short
span of three months only and even then the engineers of the Corporation failed to
detect any construction work. It has been submitted in Court that the Corporation
does not have any records of the sanctioned plan of the building. None of the
occupiers have come forward to take responsibility of the construction that has
been made. The person who was impleaded as private respondent in the earlier writ
petition filed by the petitioner being WPO No.1150 of 2021 has clearly shirked off
responsibility with regard to the alleged construction and submitted that he has
been unnecessarily dragged in the proceeding.
According to the petitioner, the person who was impleaded as respondent no.9
in the earlier proceeding, is the person responsible for making construction but as
he openly refused to accept liability of the construction made, the petitioner did not
implead him as party in the present proceeding. Deed annexed by the petitioner of
the year 1982 mentions about a two storied building with vacant roof in the third
floor.
The said structure is presently partly five and partly six storied building. The
Kolkata Municipal Corporation Act came into effect on 4th January, 1984 and this
Court in Mohanlal Mitra [supra] clearly laid down that in the KMC Act, 1980 there
is no prescribed time period for taking steps against unauthorized construction by
the Corporation. The fact that no plan has been found in the records maintained by
the Corporation in respect of the subject property suggests that no plan was
sanctioned for making construction at the subject premises after the execution of
the deed of lease in 1982.
As the Corporation asserts that there is no sanctioned plan in respect of the
subject premises, then steps ought to have been taken by the Corporation to
demolish the portion constructed without obtaining sanction from the Corporation.
The Corporation is not required to bother with the fact as to whether the structure
is an old one or not. Back to back inspection reports of the Kolkata Municipal
Corporation suggest that the construction took place in the year 2021. The said
construction can certainly not be said to be an old one. Any construction which has
been made without obtaining sanction is liable to be demolished.
In view of the above, the instant writ petition is disposed of by directing the
Municipal Commissioner or his delegate the Director General of Building to take
steps for demolition of any unauthorized construction at the subject premises
without being swayed by the fact that the unauthorized portions are occupied and
may have become old due to passage of time.
The Deputy Commissioner of Police, Kolkata and the Officer-in-Charge,
Burrabazar Police Station are directed to take steps for rendering all necessary
assistance to the men and agents of the Kolkata Municipal Corporation at the time
of demolition of the unauthorized construction, if sought for.
Steps shall be taken in the matter in accordance with law, at the earliest, but
positively within a period of twelve weeks from the date of communication of this
order.
The notice of demolition shall be addressed to the owner of the property and in
favour of the person(s) whose names are recorded in the Assessment/Inspection
Book maintained by the Kolkata Municipal Corporation.
Cost of demolition shall be recovered in accordance with the provisions of
Section 400(7) of the Kolkata Municipal Corporation Act, 1980.
Report dated 17.02.2022 filed by the Officer-in-Charge, Burrabazar Police
Station in Court today is retained with the record.
Affidavit-in-opposition and affidavit-in-reply thereto filed in Court today are
taken on record.
The writ petition stands disposed of.
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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