Calcutta High Court (Appellete Side)
Sujoy Dutta vs Howrah Municipal Corporation & ... on 20 June, 2023
17. 20.06.2023
Court No.6
Tanmoy Ghosh
MAT 715 of 2023
Sujoy Dutta
-Versus-
Howrah Municipal Corporation & Ors.
With
IA No: CAN/1/2023
Mr. Srijib Chakraborty, Adv.,
Mr. Sumitava Chakraborty, Adv.
...for the appellant.
Mr. Sandipan Banerjee, Adv.,
Mr. Ankit Sureka, Adv.,
Mr. Sobhan Majumder, Adv.
...for the Howrah Municipal
Corporation.
By consent of the appearing parties, the appeal and
the connected application are taken up together for
hearing.
A judgment and order dated April 20, 2023,
whereby WPA 9468 of 2023 was dismissed by a learned
Single Judge, is under challenge in this appeal at the
instance of the writ petitioner.
The appellant approached the learned Single Judge
challenging a demolition notice dated March 30, 2023. It
seems that there was unauthorized construction to the
extent of deviation up to the G+3-storeyed structure and
the fourth and fifth floors were without any sanction at
all.
2
On behalf of the writ petitioner, it was submitted
before the learned Single Judge that the Assistant
Engineer of Howrah Municipal Corporation (HMC), by a
letter dated August 19, 2021, called upon the writ
petitioner to submit 'as made plan'. It appears that such
'as made plan' was submitted within ten days of the said
letter. It was further submitted that HMC thereafter
mutated the respective flats in the building in the names
of the owners and assessed the same. Taxes were also
collected in respect of the flats.
After noting the submissions of the parties, the
learned Judge dismissed the writ petition with the
following observations:-
"In the present case, the builder has raised structure of
two additional floors without obtaining any sanction. Permitting
the builder to hold on to any construction made without a valid
sanction plan will be highly illegal and improper. The same is
going to send out a very wrong message to the public in general
that construction can be raised at the will of the builder and
thereafter application may be made for regularization of the
same. The very purpose of obtaining prior sanction will be
frustrated if sanction/regularization is sought for after the
construction is over. It will be a premium for the unscrupulous
and dishonest builders who take up the work of construction
without following the due process of law.
The action of the petitioner in raising construction without
any sanction plan cannot be supported by the Court. Though
the Corporation has accepted taxes in respect of the said
construction, the same does not mean that the construction is
regularized or legalized in any manner whatsoever.
The construction remains illegal despite payment of taxes
and assessment of the same. Notice has been issued for
demolition of the unauthorized construction. The Corporation
will act strictly in accordance with law and proceed with the
demolition work as scheduled."
3
Being aggrieved, the writ petitioner is before us by
way of this appeal.
We are completely in agreement with the learned
Single Judge that unauthorized constructions should
not be allowed to stand.
A person proposing to raise a construction is duty-
bound to obtain prior sanction from the permission
granting Authority.
However, admittedly in the present case, the
Assistant Engineer called upon the appellant to submit
'as made plan'. It is not in dispute that such plan was
submitted within the time period indicated by the
Assistant Engineer. It, however, appears that thereafter
no steps were taken by HMC to either regularize the
impugned construction or reject the appellant's request
for regularization. Without taking any decision on such
issue, it may not have been proper for HMC to issue the
demolition order.
Accordingly, we set aside the order under appeal as
also the demolition order which was impugned before
the learned Single Judge.
We remand the matter to the Commissioner of HMC
to consider the matter afresh and pass an order, in
accordance with law and the applicable Rules and
Regulations, after giving an opportunity of hearing to the
appellant or his authorized representative. The entire
4
exercise should be completed as expeditiously as
possible.
This order is not to be construed as putting any
stamp of approval on the impugned construction. If the
Commissioner finds that the impugned construction or
portion thereof is incapable of being regularized, the
consequences must follow, in accordance with law.
We make it clear that we have not gone into the
merits of the case at all. The Commissioner shall take an
informed decision, in accordance with law.
Since we have not called for affidavits, the
allegations in the stay petition shall be deemed not to
have been admitted by the respondents.
The appeal being MAT 715 of 2023 and the
connected application being IA No: CAN/1/2023 are
disposed of.
Let urgent photostat certified copy of this order, if
applied for, be made available to the parties, upon
compliance with all requisite formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
