Bitam Paul vs Chandannagore Municipal ...
2023 Latest Caselaw 82 Cal

04.01.2023
 Item No.09
Court No.6.
    S. De
                                   M.A.T. 1938 of 2022
                                            with
                                   I.A. No. CAN/1/2022

                               Bitam Paul.
                                   Vs
                 Chandannagore Municipal Corporation & Ors.


                      Mr. Ashok Kumar Banerjee, Ld. Sr. Adv.
                      Mr. Sudip Ghosh Chowdhury,
                      Mr. A. Bose,
                      Ms. Bina Baidya,
                                       ...for the appellant.

                      Mr. Sandip Kumar Bhattacharyya,
                      Mr. Suman Basu,
                                      ...for the C.M.C.


                      This appeal is directed against a judgment and

              order        dated   December    1,   2022,   whereby   the

              appellant's writ petition being W.P.A. 26397 of 2022

              was dismissed.

                      The appellant/writ petitioner claims to be the

              Secretary of the Managing Committee of Pearl Rosary

              School, a Co-educational English Medium School,

              affiliated to the West Bengal Board of Secondary

              Education, situate at 540, Mankundu Station Road,

              Police Station and Post Office - Chandannagar,

              District - Hooghly, West Bengal (in short 'the school').

                      It    appears   that    the   Managing   Committee

              obtained sanction from the Chandannagar Municipal

              Corporation (in short 'CMC') for constructing a G+3
                              2




storied building.     Our attention has been drawn to

page 51 of the stay application which is a building

plan for proposed four storied (G + III) residential

building of "Pearl Rosary School". Such building plan

was sanctioned.       Construction of a G + III storied

building was made. However, instead of the building

being used for residential purpose, a school started

operating from the building. The appellant says that a

portion of the building is used also for residential

purpose to accommodate students who come from far

away.

        It is not in dispute that a fourth floor has been

constructed by the Managing Committee of the School

and a fifth floor is under construction. However, these

constructions are without any sanctioned plan from

the CMC. We are told that construction work on the

fifth floor has been stopped by the school authorities

upon receiving stop-work notice from the C.M.C.

        Proceedings were initiated by C.M.C. against the

Managing Committee of the School for unauthorized

construction.    This was preceded by several show-

causes notices which were not responded to by the

School Authorities.      Hearing took place where the

School representatives were heard.        Ultimately, an

order dated September 21, 2022, was passed by the

Commissioner of C.M.C., the operative portion whereof

reads as follows :-
                               3




          "Moreover,          the      proposal          for
   regularization cannot be considered by this
   corporation in view of the fact that the law
   does not empower & permit this authority
   to allow retention or regularization of even
   minor deviations.
          Hence,    it   is       observed        that   the
   Management of the Pearl Rosary School
   has willfully & deliberately violated in
   following issues :-
1.

There are illegal Constructions in all floor of G+III Building @ 16 Sq.ft per floor amounting to 64 Sq.ft beyond sanctioned Building plan.

2. The Building plan was sanctioned for residential purpose but being used for running a private school purpose. So, their very intention was wrong from the initial stage.

3. They have taken up further illegal constructions for 4th floor & 5th floor without obtaining any valid sanctioned Building plan @ 1912 Sq.ft per floor.

4. The Management is playing with the security of the lives of the students, teachers as well as other staff and running the school with huge no. of students where illegal constructions are simultaneously being done at the 4th & 5th floors without any valid sanctioned plan. The management is showing insensitivity and irresponsibility to the lives of the students. There are possibilities of any type of mishap as accident for such illegal construction without sanctioned building

plan and as such, the lives of the students teaching & non-teaching staff at the school are at stake.

5. The school authority did not respond to several show cause notices and orders for stop work/construction.

To stop such illegality & to make the school management more sensitive and to remove the possibility of any mishap or accident, some urgent actions are required.

Hence, it is hereby ordered that :-

1. The management (Represented by : 1. Bitan Paul, the present Secretary of the Managing Committee of the School. 2. Ranjana Chakraborty, the Head Mistress of the School. 3. Piyali Chatterjee, the Asst. Head Mistress of the Pearl Rosary School shall demolish all the illegal constructions at their own cost of the said building within 14 (Fourteen) days from the date of receipt of the copy of this order failing which Chandernagore Municipal corporation reserves the right to demolish the illegal constructions and all the expenditures of demolition work will be charged upon the Management of the Institution i.e. the said Pearl Rosary School.

2. The G+III storied building can only be used for residential purpose, not at all for running a school/or any work of commercial nature.

3. The Corporation shall lodge a police complaint against the management for taking steps so that the management can

be restrained from playing with the lives of the students, teaching & non-teaching staff of the school.

               All        concerned             be        informed
       accordingly."

The aforesaid order of the Commissioner of

C.M.C. was the subject matter of challenge before the

learned Single Judge.

Before the learned Single Judge, the appellant

argued that the Commissioner did not have authority

to issue the demolition order. The learned Judge

observed and rightly so, that under the West Bengal

Municipal Corporation Act, 2006, the Commissioner is

the competent authority to issue order for demolition

of illegal/unauthorized construction.

The learned Judge also noticed that a School

was being run from the said premises without

obtaining Completion Certificate.

The learned Judge dismissed the writ petitioner

with the following observations :-

"From the documents annexed to the writ petition and on perusal of the impugned order of demolition, it appears that the said order was passed upon giving opportunity of hearing to the representatives of the school. The names of three of the representatives of the managing committee of the school who

were present in the hearing are mentioned in the impugned order.

The school authority was given several show cause notices and orders for stopping the construction work; none were responded by the school.

The Corporation lodged FIR before the police. The Commissioner being apprehensive of mishap or accident passed the order of demolition.

The school is admittedly making construction without the proper sanctioned plan and is occupying and using the building without a completion certificate. Both are impermissible in law.

According to the provisions of law, construction can be made only after obtaining permission/sanction and not prior thereto. Construction always follows the sanction which is granted and it is not the other way round when construction is made prior to sanction being granted.

Any interference with the order of demolition will send out a very wrong message to the students of the school, the teachers and the public at large that regularization may be sought for of the construction which has been made without obtaining a prior sanction plan.

The Commissioner being the competent authority issued the order of demolition after complying with the principle of natural justice. There is no apparent error in the order impugned requiring interference."

Being aggrieved, the writ petitioner is before us

by way of this appeal.

Appearing for the appellant, Mr. Ashok Kumar

Banerjee, learned senior counsel argued that the

demolition order has been passed in breach of the

principles of natural justice. He submitted that the

proceedings for demolition culminating in the

demolition order, were initiated pursuant to

complaints lodged by local people. However, copies of

such complaints were not made available to the School

authorities. This would amount to breach of the

salutary principle of natural justice vitiating the entire

proceedings resulting in the demolition order. We are

unable to agree with Mr. Banerjee. It is not in dispute

that unauthorized construction has been made by the

School authorities. Whether the C.M.C. authorities

initiated action and ultimately issued demolition order

pursuant to complaints made by local people or suo

motu, is completely irrelevant. It is the duty of C.M.C.,

which is a statutory Corporation, to ensure that no

construction is made without obtaining prior sanction

and if any illegal construction is made, the same

should be demolished. There has been no violation of

the principles of natural justice in this case. To the

extent, such principles apply, they have been

observed. The School authorities were heard

sufficiently by the C.M.C. authorities and only then

the demolition order was passed.

Mr. Banerjee then submitted that after

completion of each floor, the C.M.C. authorities were

satisfied that the same were in accordance with the

sanctioned plan. Now the authorities cannot take a

contrary stand. We are also unable to appreciate this

submission. The major controversy is with respect to

the fourth floor and the partially constructed fifth

floor. The C.M.C. authorities never sanctioned such

construction. As regards the excess construction on

the other floors, we cannot and should not restrain

C.M.C. from carrying out its statutory duties. Even if

they did not object to the excess construction in the

ground, first, second and third floors, that does not

mean that they are precluded from declaring such

excess construction as authorized or illegal.

Mr. Banerjee then submitted that his client

made an application for sanction of the fourth and

fifth floors on the e-portal of C.M.C. Such application

was never considered by the authorities. In the mean

time, Covid intervened. The School needed larger

space to accommodate the students. Hence, the

fourth floor was constructed.

We cannot accept the justification sought to be

advanced by learned senior counsel. Section 266 of

the West Bengal Municipal Corporation Act, 2006,

prohibits any construction without prior sanction of

the sanctioning authority. However pressing may have

been the need of the school authorities, they could not

have constructed additional floors without having

proper building plan sanctioned from the C.M.C.

authorities.

Mr. Banrjee relied on a decision of the Hon'ble

Supreme Court in the case of M/s. Rajatha

Enterprises -Versus- S.K. Sharma & Ors. reported

in AIR 1989 Supreme Court 860 to contend that in

an appropriate case, the Court may direct that

construction made without having sanctioned plan,

should remain and need not be necessarily

demolished. Mr. Banerjee said that the present case is

such a case. Again, with great respect, we cannot

agree. The facts of the aforesaid Supreme Court case

were completely different from the facts of this case.

On an overall consideration of the facts of that case,

the Hon'ble Court was of the view that High Court

ought not to have directed demolition of the impugned

construction. Further, the Supreme Court observed

that there was no evidence of public safety being in

any manner endangered or the public or a section of

the public being in any manner inconvenienced by

reason of the unauthorized construction. We do not

find that any declaration of law was made in that

decision.

Mr. Banerjee also referred to a decision of the

Hon'ble Supreme Court in the case of The

Comptroller & Auditor General of India, Gian

Prakash, New Delhi & Anr. Versus K.S.

Jagannathan & Anr. reported in AIR 1987 SC 537

to contend that the power of the High Court under

Article 226 of the Constitution is very wide and any

order can be passed for the ends of justice. We have

no quarrel with such proposition. However, this is not

a case where we are inclined to exercise our

jurisdiction under Article 226 of the Constitution to

grant relief to the appellant.

Finally, Mr. Banerjee, questioned the validity of

the Commissioner's demolition order on the ground

that the Chandannagar Municipal Corporation Act,

1990 was never duly published. In this connection

Mr. Banerjee referred to a decision of the Hon'ble

Supreme Court in the case of Collector of Central

Excise Versus New Tobacco Co. reported in AIR

1998 Supreme Court 668. In that case it was

decided that a Central Excise notification can be said

to have been published, except when it is provided

otherwise, only when it is so issued as to make it

known to the public. This decision was rendered in a

totally different factual scenario. The crux of the

decision was that unless the members of the public

became aware of the notification, the notification

cannot be said to have been duly published. In the

present case, nobody has contended that the members

of the public are not aware of the contents of the

Chandannagar Municipal Corporation Act, 1990 or the

West Bengal Municipal Corporation Act, 2006 which

repealed and replaced the 1990 Act. In our considered

opinion, the aforesaid Supreme Court decision has no

manner of application to the facts of the present case.

It has also been drawn to our attention by Mr.

Bhattacharyya, learned counsel appearing for

Chandannagar Municipal Corporation that page 66 of

the stay petition is an incomplete xerox copy of a

document. He has produced a xerox copy of the

complete original document which is really a show-

cause notice. The portion requiring the School

authorities to show cause has been suppressed. The

writ Court is a Court of equity. One who approaches

the writ Court must do so with clean hands. In our

view, the appellant has not done so. This is an

additional ground on which he is not entitled to any

equitable relief.

We are completely in agreement with the order of

the learned Single Judge. Persons who take law into

their own hands deserve no leniency. The regulatory

Acts like the West Bengal Municipal Corporation Act,

2006, have been promulgated with a purpose.

Reckless and unscrupulous people by putting up

unauthorized construction, seek to defeat that

purpose. They deserve no sympathy.

The appeal being MAT 1938 of 2022 is dismissed

along with the application being I.A. No. CAN 1 of

2022.

The appellant and the School authorities are

directed to ensure that before the demolition activity is

carried out, the entire building is vacated to obviate

any possible safety hazard to the children or anybody

else.

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.)