Calcutta High Court (Appellete Side)
Bhabatosh Jha vs Bidhannagar Municipal Corporation & ... on 7 August, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 3
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
M.A.T. 555 of 2024
(CAN 1 of 2024)
Bhabatosh Jha
-Vs-
Bidhannagar Municipal Corporation & Ors.
For the Appellant : Mr. Ashim Kumar Routh, Adv.
Mr. Subhayan Barik, Adv.
For the Respondent : Mr. Shaunak Ghosh, Adv.
Nos.7 & 8 Mr. Biswaroop Bhattacharya, Adv.
For the BMC : Mr. Sirsanya Bandyopadhyay, Adv.
Mr. Arka Kumar Nag, Adv.
Mr. Tirthankar Dey, Adv.
Heard on : 07.08.2024
Judgment on : 07.08.2024
Joymalya Bagchi, J. :-
1. Appellant is aggrieved by the judgment and order dated
11.03.2024 whereby the Hon'ble Single Judge upheld the order passed by
the Commissioner and directed the Commissioner to demolish portions of
the building constructed beyond the sanctioned building plan.
2. Appellant is one of the flat owners in the building which is a G+5
structure. He made representation before the respondent-Bidhannagar
Municipal Corporation alleging the car parking spaces had been
converted into residential quarters by the office bearers of the owners'
association in violation of Section 267 of the West Bengal Municipal
Corporation Act, 2006. It was also alleged unauthorised construction had
been made without prior sanction plan.
3. The representation not being acted upon, appellant approached
this court in WPA 20183 of 2022 and the matter was remanded to the
respondent-Corporation for taking appropriate decision.
4. Pursuant to the order respondent no.3 i.e. Commissioner,
Bidhannagar Municipal Corporation heard the appellant as well as the
private respondents i.e. owners' association and upon consideration of
the inspection report passed the following order :-
"(i) The petitioner and respondent submitted building plans
sanctioned by the Gopalpur-Arjunpur-III Gram Panchayat. The
authenticity of both the plans cannot be ascertained as no record
is available with us.
(ii) According to the building plan sanctioned on 28.04.93
submitted by the respondent, the building is VI storied structure
as it exists.
(iii) During inspection it has been found that a toilet block exists at
the back side beyond sanctioned building plan.
(iv) A small security gumty (1.4 x 1.4m) also exists beyond said
sanctioned plan.
(v) It is also found that a cantilever of length about 1m is projected
from 1st floor at one side of the building.
Under the facts and circumstances, it appears that an
unauthorised construction beyond the sanctioned building plan
have been erected as per inspection conducted by the officials of
this Corporation pertaining to the subject property.
It also appears that erection of structure without any sanctioned
building plan and written order permission from the Corporation
is a gross violation of the provision of the West Bengal Municipal
Act 2006 as well as West Bengal Municipal Building Rules 2007.
In view of the above the undersigned directs the private
respondents to demolish the unauthorised construction erected
without any valid sanctioned building plan within 4 (four) weeks
from the receipt of this order failing which this Corporation will be
compelled to take appropriate steps without any further reference
as per provisions of relevant rules and acts to demolish the
unauthorised constructions and recover the expenses of such
demolition from the private respondent as per provisions of West
Bengal Municipal Corporation Act, 2006. "
5. The aforesaid decision was assailed by the appellant as well as the
private respondents. Both the writ petitions were disposed of by identical
orders. While appellant has assailed the order passed in his writ petition,
no appeal has been preferred by the private respondents with regard to
the order passed on their writ petition.
6. Learned Advocate for the appellant submits a building plan
permitting the G+4 structure had been sanctioned by the Gopalpur-
Arjunpur-III Gram Panchayat. Spot inspection shows a G+5 structure
had been constructed. However, the Commissioner merely noted that a
toilet block on the backside, security gumti room and a cantilever
projecting from the first floor at one side of the building were beyond
sanctioned plan. No finding was also recorded with regard to the illegal
conversion of the car parking spaces into residential flats.
7. On the other hand, learned Advocate for the Bidhannagar
Municipal Corporation submits the Commissioner directed demolition of
all unauthorised constructions beyond sanctioned plan.
8. Learned Advocate for the private respondent nos.7 & 8 submits
the G+5 structure had been regularised. He also submits the security
gumti room is no longer in existence as the same had broken down due to
natural causes.
9. We have considered the impugned decision in the light of the
aforesaid submissions.
10. From the materials on record it appears both the parties had
submitted sanctioned building plan for a G+4 building. However, physical
inspection of the premises shows a G+5 structure standing on the plot.
Admittedly, no document showing sanction of the G+5 structure is placed
before us. Plea of regularisation of an unauthorised additional floor under
the extant building rules is inconceivable. Under such circumstances,
there is no escape from the irresistible conclusion that the sixth floor
constructed on the premises is an unauthorised one.
11. Strangely enough the impugned order does not expressly record
this fact. On the other hand, other constructions like toilet block on the
backside, small security gumti room and a cantilever projecting from the
first floor had been enumerated as unauthorised constructions beyond
the sanctioned plan. This gives an impression that the sixth floor
unauthorisedly constructed does not fall within the category of
unauthorised constructions found in the premises.
12. Moreover, the other issue viz. change of user of car parking spaces
into residential flats/shop rooms without prior permission has not at all
been addressed. The order is a laconic one and does not address the most
germane and material issue relating to unauthorised construction.
13. Under such circumstances, we remand the matter before the
Commissioner and direct him to pass appropriate order after giving
opportunity of hearing to the appellant, private respondents and affected
parties enumerating all unauthorised constructions beyond sanctioned
plan in light of the observations made in this order as well as on the
issue of illegal conversion of parking spaces into residential/residential
units/shop rooms within six weeks from the date of communication of
this order. Demolition order with regard to the unauthorised construction
so enumerated by the Commissioner shall be forthwith passed and
implemented in accordance with law.
14. With these directions, the appeal is disposed of.
15. In view of disposal of the appeal, connected application being CAN
1 of 2024 is also disposed of.
16. There shall be no order as to costs.
17. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
akd
