Calcutta High Court (Appellete Side)
Joydip Paul & Anr vs The State Of West Bengal & Others on 6 February, 2023
06.02.2023
Item No.7
Court No.6.
AB
M.A.T. 1947 of 2022
With
I A CAN 1 of 2022
Joydip Paul & Anr.
Vs
The State of West Bengal & Others
Mr. Arjun Mukherjee,
Mr. Sanjay Saha,
Mr. Subhasish Bhattacharya
...for the Appellants.
Mr. Manoj Malhotra,
Ms. Debarati Sen (Bose)....for the State.
By consent of the parties, the appeal and the
application are taken up for hearing together.
This appeal is directed against a judgment and
order dated September 23, 2022, whereby the writ
petition of the appellants being WPA No.14574 of 2022
was dismissed.
The appellants approached the learned Single
Judge challenging an order dated June 14, 2022,
passed by the Chairman of the Madhyamgram
Municipality, rejecting the appellants' prayer for
amalgamation of two adjacent premises that
undisputedly belong to the appellants.
It appears that the appellants had obtained two
separate building plans for constructing two buildings
on the adjoining plots of land. After making such
construction, they joined the roofs of the two
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buildings. They say that since their request for
amalgamation was kept pending by the Municipality,
they proceeded to obtain two separate building plans
and raised two buildings.
Thereafter, the Municipality considered the
application for amalgamation and rejected the same on
the ground that there is no law permitting
amalgamation after sanctioning two separate building
plans where construction is complete by joining the
roofs of two buildings without permission and without
leaving requisite side space.
By an order dated September 6, 2022, the
learned Judge directed the Municipality to consider
whether the act of the appellants in joining the
adjoining roofs may be regularized. The Municipality
was granted liberty to conduct a spot enquiry. Such
inspection was held. The Assistant Engineer,
Madhyamgram Municipality addressed a
communication dated September 19, 2022 to the
Chairman of the Municipality, which reads as follows:
"After verification of all sorts of documents it is
found that two no. building plan have been approved
in holding no.363/1/49 and 363/49/1 in the name of
Joydip Pal and Smt Sumana Pal with two no separate
stair case providing 22 (twenty two) no. column
totally.
But it has been constructed a single building
with 14 (fourteen) no. column. It is impossible carry
the combined load of building by 14 no. column
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instead of 22 no. column. It may be failed at the time
of settlement. It is completely an unauthorized
building. It has been violated the building rules in
different ways. Hence, BOC meeting can produce the
building rules u/s 32 of building rules 2007."
When the matter came up again before the
learned Single Judge on September 23, 2022, the
learned Judge considered the aforesaid
communication. The learned Judge dismissed the writ
petition with the following observation:
"The report also mentions that two separate
building plans were approved with separate
staircase but the petitioners constructed in deviation
of the plan sanctioned. The Municipality never
permitted the petitioners to join the roof of the two
buildings. It appears from the report of the
Municipality that the building in question is an
unsafe one and accident may cause in future.
In view of the above, the Court is not inclined to
exercise jurisdiction in the matter."
We have heard learned Counsel for the
appellants. He says that the issue regarding
unauthorized construction is pending before the
learned District Judge, Barasat. The Municipality had
passed a demolition order, which has been carried in
appeal by the appellants herein before the learned
District Judge, Barasat. Learned Advocate says that
the issue of amalgamation and the issue of
unauthorized construction are separate issues. Even
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assuming that the appellants have raised
unauthorized construction, the same should not stand
in the way of the Municipality allowing the appellants'
prayer for amalgamation.
Learned Counsel further draws our attention to
Rule 47 of the West Bengal Municipal (Building) Rules,
2007, in support of his submission that the Rules
clearly contemplate amalgamation of two or more
premises. The view of the Municipality that the law
does not envisage amalgamation, is patently incorrect.
Undisputedly, unauthorized construction has
been raised by the appellants, which is in deviation
from the sanctioned plan. The said issue is pending in
appeal before the learned District Judge, Barasat. The
learned Single Judge noticed that the appellants have
made illegal construction. We have also seen from the
communication addressed by the Assistant Engineer
to the Chairman of the Municipality, which has been
extracted above, that the building is in extremely
unsafe condition. In the opinion of the Assistant
Engineer, building may collapse at any time.
In view of the conduct of the appellants, we are
not inclined to exercise the high prerogative writ
jurisdiction to grant any equitable relief to the
appellants. We are in agreement with the learned
Single Judge that this is not a fit case for exercising
writ jurisdiction in favour of the appellants.
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Since we have not called for affidavits, the
allegations in the stay application are deemed not to
be admitted by the respondents.
M.A.T. No.1947 of 2022 is, accordingly,
dismissed along with IA CAN 1 of 2022, without any
order as to costs.
Nothing in this order shall have any bearing on
the proceedings pending before the learned District
Judge, Barasat. In the event, the unauthorized
constriction is regularized or it is held by the
competent forum that there is no unauthorized
construction, the appellants will be at liberty to apply
afresh for amalgamation of the two premises in
question.
Urgent photostat certified copy of this order, if
applied for, be supplied expeditiously after compliance
with all the necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
