Calcutta High Court
M/S. Madan Gopal Board House Private ... vs The Kolkata Municipal Corporation & Ors on 10 May, 2024
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
WPO 170 of 2024
M/s. Madan Gopal Board House Private Limited & Anr.
Vs.
The Kolkata Municipal Corporation & Ors.
For the writ petitioners :- Mr. Biswajit Mukherjee, Adv.
Mr. Supratick Shyamal, Adv.
Ms. Sabarnee Chatterjee, Adv.
For KMC :- Mr. Alak Kumar Ghosh, Adv.
Mr. Fazlul Haque, Adv.
Mr. Dwijadas Chakraborty, Adv.
Hearing concluded on :- 01.05.2024
Judgment on :- 10.05.2024
Amrita Sinha, J.:-
The petitioner no. 1 is a private limited company and the petitioner no.
2 is the director thereof. The company is a tenant in respect of a godown
measuring about 900 sq. ft. approximately in the ground and mezzanine
floor of premises no. 9, Antony Bagan Lane under the private respondent
nos. 7-9. The tenanted premises is used for commercial purpose.
The petitioners claim that after the cyclone Amphan the roof of the
godown of the petitioners got severely damaged but due to paucity of funds,
the petitioners were not in a position to repair the roof immediately. The
petitioners obtained permission from the landlords for repairing the existing
roof with concrete slab above the asbestos roof. The petitioners have averred
in the writ petition that the old and ruinous asbestos shed were replaced
with RCC slab in the ground floor for the purpose of safety from rain and
various other natural calamities.
The petitioners allege that the men and agents of the Kolkata
Municipal Corporation ('KMC' for short) visited the subject premises on 2nd
January, 2024 and demolished the concrete roof as well as asbestos shed of
the godown of the petitioners. The petitioners, on enquiry, came to learn that
a complaint was lodged against the repairing work done by the petitioners
and an intimation to the concerned police station was filed. Notice under
Sections 544 and 546 of the Kolkata Municipal Corporation Act, 1980
(hereinafter referred to as 'the Act') was issued for complying the order of
demolition dated 13th May, 2023 passed under Section 400(1) of the Act.
It has been submitted that the demolition proceeding was initiated
against one Mantu Saha. KMC did not issue any notice of the demolition
proceeding either on the owners or the person responsible for making
construction. The said Mantu Saha is neither a tenant nor occupier or
owner of the said premises. The petitioners claim that they do not have any
relationship with the aforesaid Mantu Saha and submits that there is no
person by the aforesaid name in the subject premises.
It has been submitted that the petitioners intimated the Corporation
in advance about the repairing work that was sought to be done by them.
Without considering the said prior intimation made by the petitioners, KMC
ought not to have conducted the proceeding and further ought not to have
executed the order of demolition that was passed ex parte. The petitioners
applied before KMC seeking repairing of the roof and restoring it to its
original state.
Prayer has been made for directing KMC to repair the demolished roof
of the godown and to restore the same to its original form. Further prayer
has been made to set aside and/or cancel the demolition order dated 13th
May, 2023 passed under Section 400(1) of the KMC Act, 1980 and the
subsequent notice issued under Sections 544 and 546 of the KMC Act, 1980
dated 29th December, 2023.
Learned advocate representing KMC opposes the prayer of the
petitioners by filing an affidavit. It has been submitted that in the instant
case a telephonic complaint was received informing unauthorised
construction being made at the subject premises. The Sub-Assistant
Engineer of the borough visited the premises and found that several number
of RCC beams had been constructed over the existing brick built structure
and RCC slab was cast over the constructed RCC beams.
During inspection several persons were found involved with the
construction work. The persons present at the spot were asked to produce
valid documents in support of the construction. One of the persons
identified himself as Mantu Saha and the Sub-Assistant Engineer, on bona
fide understanding, that the said Mantu Saha with others was causing the
erection, initiated proceeding under Section 400 against him. The said
Mantu Saha was treated as the person responsible for making construction.
As in terms of Section 400 of the Act it was found that Mantu Saha
was the person responsible for making construction, accordingly, all notices
were sought to be served upon the said person. As the aforesaid Mantu Saha
refused to sign the notice under Section 400(1) of the Act, accordingly, the
notice Section 400(1) of the Act was affixed on the wall of the unauthorised
construction for information of all concerned. As none appeared at the time
of hearing of the demolition proceeding, the Executive Engineer passed order
on 12th August, 2023 and pasted the order of demolition on the outer wall of
the structure for information of all concerned. As the time period within
which the self demolition was directed to be carried out expired, accordingly,
notice under Sections 544 and 546 of the Act was issued and demolition
took place on the scheduled date.
The aforesaid facts came to the knowledge of the Executive Engineer
(Civil)/Building/Borough - IV and V who is currently holding the said post
from the materials available on record. The erstwhile Executive Engineer is
no longer holding the subject post.
The notice under Section 401 of the Act, the complaint lodged by the
Assistant Engineer (Civil)/ Building Department, Borough - IV and V before
the Officer-in-Charge, Amherst Street police station on 5th June, 2023
intimating about the unauthorised construction, the service return notice
dated 5th June, 2023, the notice under Section 400(1) of the Act, the show
cause notice under Section 400(1) of the Act dated 7th August, 2023 along
with the infringement statement dated 7th August, 2023 and the demolition
order under Section 400(1) of the Act have been annexed with the affidavit
filed on behalf of KMC.
It has been submitted that there was no mala fide intention on the
part of KMC while passing the interim order of demolition. KMC on good
faith and bona fide intention served the notice upon the person found at the
spot at the time of inspection and continued the proceeding in the name of
the said person. Admittedly, the petitioners failed to produce any sanction
prior to casting the RCC roof. Casting of the RCC beams and roof slab
without any sanction from the Corporation is impermissible in law and as
such the order of demolition was passed and subsequently executed.
Prayer has been made for dismissal of the writ petition.
I have heard and considered the submissions made on behalf of both
the parties.
The petitioners contend to have made construction relying on an
intimation served upon KMC to repair the damaged roof at the subject
premises. The petitioners have admitted in the writ petition that the roof was
an asbestos shed which got demolished with the passage of time and also
because of the Amphan cyclone. The petitioners further admit that for safety
reasons the asbestos shed was replaced with RCC slab. Apart from the
intimation served in the borough office of KMC the petitioners have not been
able to produce any evidence to show that permission was actually granted
to the petitioners for replacing the asbestos shed with RCC slab.
As per Rule 3(2)(e) of the KMC Building Rules, 2009 permission is not
required if minor repairs and re-flooring of an existing damaged roof is done
without changing the character and dimension of such roof. The first proviso
to the aforesaid Rule mentions that the character of a damaged roof may be
allowed to be changed and its reconstruction permitted by permission in
writing of the Commissioner on such terms as he may consider fit upon
application being made to him along with three copies of plan on payment of
requisite fees and on submission of structural stability certificate from the
structural engineer, architect or a Licensed Building Surveyor as the case
may be.
The second proviso to the aforesaid Rule mentions that no work
referred to in clause (e) shall be undertaken without giving the Municipal
Commissioner fifteen days' notice in writing stating the nature of work
proposed to be undertaken.
There is nothing on record to suggest that application was made
before the Commissioner to obtain permission to change the character of the
roof. Mere intimation that repairing work will be done does not imply that
the character of the roof can be changed without obtaining permission.
Hence, it can be concluded that replacing the asbestos shed with that of
RCC slab, without permission, amounts to unauthorised construction liable
to be dealt with in accordance with the provisions of law.
The next issue that has been raised by the petitioners is that no notice
of the proceeding to deal with the unauthorised construction was ever
served upon either the owner or the person responsible for making
construction. In the present case the petitioners claim that the private
respondent nos. 7-9 are the owners of the subject premises. It has, however,
been admitted by the petitioners that the record of the Corporation does not
contain the names of the aforesaid respondents as owners. On the contrary,
the property in question has been recorded in the names of persons who
have not been impleaded as parties in the writ petition. The persons, who
the petitioners claim to be the owners, are not represented in the instant
writ proceeding.
According to the first proviso of Section 400(1) of the Act, no order of
demolition shall be made unless the person at whose instance the
construction work has been commenced or is being carried on has been
given a notice of showing cause as to why such order shall not be made. The
Executive Engineer has averred in the affidavit that at the time of spot
inspection one person, who identified himself as Mantu Saha, was found
responsible for making the construction work. The said Mantu Saha did not
disclose either the name of the owner or the name of any person at whose
instance the construction work was being made. As the aforesaid Mantu
Saha was found actually responsible for making the construction work,
accordingly, notices of the proceeding were issued in his name.
It has also been averred in the affidavit that as the aforesaid Mantu
Saha refused to accept the notices, as such, the precise of the unauthorised
construction and the hearing notice was pasted on the wall of the
unauthorised construction. The order of demolition was also affixed on the
wall for knowledge of all concerned.
It appears that the notice under Section 401 of the Act to stop
construction was issued on 5th June, 2023, notice to show cause within 24
hours was issued on 7th August, 2023 and the order of demolition was
passed on 12th August, 2023. The demolition actually took place on 2nd
January, 2024. The petitioners who claim to be the tenants of the subject
premises and who accepts the responsibility of making the construction
cannot and ought not feign ignorance of the demolition proceeding as it has
been averred that all the notices were affixed on the wall of the subject
structure.
The demolition took place more than four months after the order of
demolition was passed. It may be that the petitioners were aware of the
proceeding but deliberately did not participate in the same. Practically it
cannot be accepted that the fact of visit of the engineers of the Corporation
at the site in the month of June, 2023 could have escaped their knowledge
as the men and agents of the petitioners were present at the site where
construction was being made.
Learned advocate representing the petitioners have vociferously
contended that as the details of the complainant who intimated the engineer
of the Corporation as regards the unauthorised construction were not
mentioned in the prescribed format of the complaints details as annexed to
the affidavit filed by KMC and the infringement statement does not indicate
the violations to the building Rules, accordingly, it has to be taken that the
proceeding was a defective one and no remedial steps could have been taken
relying on the same.
On a perusal of the complaint details it appears that the same is truly
an incomplete one. The infringement statement also does not mention the
relevant Rules that have been violated, but the details of the unauthorised
construction clearly mentions that 88 sq. mtr. construction has been made
by erecting several number of RCC beams and casting RCC slab in the
ground floor of the subject premises without building sanctioned plan. The
same is enough description of the unauthorised construction made by the
petitioners. Not indicating the particular Rule(s) that has/have been violated
does not vitiate the proceeding as long as the violation itself has been
identified and is described in the infringement statement.
For maintaining proper records, the details of the complainant should
have been clearly recorded; but there is no denying the fact that the
construction did take place in an unauthorized manner. Not mentioning the
proper details of the complainant does not render the proceeding fatal. The
engineer of the Corporation suo motu could have lodged complaint of
unauthorised construction and the same is permissible in law. Even
anonymous complaint is maintainable. At times identity of the complainant
is required to be kept secret for safety reasons; that does not mean that the
complaint becomes bad or the action taken in response to the same becomes
illegal.
It is an herculean task for a couple of engineers to get details of all the
constructions that are made within a borough. The public at large are the
eyes and ears of the engineers. More often than not it is from the
information received from the members of the locality that the engineers get
knowledge of the unauthorized construction that are made and the authority
acts on the basis of the said complaint. There is no bar in law to act in
response to an anonymous complainant.
The Court has not been made aware whether the entire unauthorized
construction has been demolished or not. If all the unauthorized
construction has not been pulled down as yet, then the KMC is directed to
afford an opportunity of hearing to the petitioners, being the persons
responsible for making construction, prior to carrying on any further
demolition.
The prayer made by the petitioners for directing the KMC to repair the
demolished roof stands disallowed as the Court has come to a conclusive
finding that the construction which had been demolished was an illegal and
unauthorized one.
The writ petition stands disposed of. No costs.
Urgent certified photocopy of this judgment, if applied for, be supplied
to the parties or their advocates on record expeditiously on compliance of
usual legal formalities.
(Amrita Sinha, J.)
