Calcutta High Court (Appellete Side)
Sanskari House & Anr vs The State Of West Bengal & Ors on 18 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 5
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. 1113 of 2024
(CAN 1 of 2024)
(CAN 2 of 2024)
Sanskari House & Anr.
-Vs-
The State of West Bengal & Ors.
For the Appellants : Mr. Ramkrishna Bhattacharya, Adv.
Mr. Biswajit Roy, Adv.
Mr. Koushik Chowdhury, Adv.
Ms. Shreya Hazra, Adv.
Heard on : 18.09.2024
Judgment on : 18.09.2024
Joymalya Bagchi, J. :-
Re : C. A. N. 1 of 2024
1. The application has been filed under Section 5 of the Limitation
Act for condonation of delay.
2. Having considered the averments made in the application for
condonation of delay and being satisfied with the explanation given, we
are inclined to condone the delay in preferring the appeal.
2
3. The application being CAN 1 of 2024 is allowed.
Re : M. A. T. 1113 of 2024
4. The question which crops up in the appeal is :-
Can a person erect a new building without a sanctioned plan when
the building already standing on the plot collapses while making repairs?
5. Appellants state a dilapidated building was standing on the plot.
Municipal Commissioner issued notice under Section 410 of the Kolkata
Municipal Corporation Act, 1980 calling the owner of the building to
make alterations so as to ensure its structural stability. A plan for making
repairs was sanctioned under Rule 3(ii)(e) of the Kolkata Municipal
Corporation Building Rules, 2009 (hereinafter referred to as 'Building
Rules of 2009'). When repair work was in progress, it is contended entire
building collapsed. Thereupon without obtaining sanction plan, a two
storied RCC structure was built on the plot. At that stage, stop work
notice was issued.
6. Complaining about erection of the illegal structure, private
respondent no.8 approached this court in WPA 1536 of 2023 and the
matter was remanded to the Director General (Building), Kolkata
Municipal Corporation to pass appropriate order.
7. Director General (Building) by the impugned order dated
25.01.2024, inter alia, observed as follows :-
"From the status report submitted by the concerned Executive
Engineer (Bldg.) Br-IV & V dated 19/01/2024, it is understood
that the existing four storied building has been totally demolished
and construction work has been started from foundation, which is
totally in deviation from sanctioned reconstruction plan vide no.
024/Br-V/2023-24 dated 19/06/2023 under Rule 3(2)(e) of the
Kolkata Municipal Corporation Building Rules, 2009 & under
Section 410 of the Kolkata Municipal Corporation Act, 1980. At
present there is a two storied unauthorised RCC framed structure.
In this regard, stop work notice under Section 401 of the Kolkata
Municipal Corporation Act, 1980 was served on 26/06/2023 and
police intimation notice sent to Amherst Street Police Station on the
same day. An FIR under Section 401A of the KMC Act, 1980 was
also lodged to Amherst Street Police Station on 11/07/2023 to stop
continuation of further illegal construction.
Order
After hearing the representation of both the parties and officials of
Borough - V and after going through the copy of the representation
of the petitioner dated 03/08/2023 and report submitted by
Executive Engineer (Bldg.), Br-IV & V dated 19/01/2024, I am
inclined to pass the following order
1) The owner of the premises is directed to demolish the construction
made at Premises No. 80/3 Mahatma Gandhi Road, Ward 040,
Borough - V as the construction has been made in gross violation
of sanctioned plan.
2) After demolition of the construction made at Premises No. 80/3
Mahatma Gandhi Road, Ward 040, Borough - V, the owner of the
premises may apply afresh to Kolkata Municipal Corporation
through a Licensed Building Surveyor (LBS)/Architect empanelled
with Kolkata Municipal Corporation to obtain sanction plan
complying the Kolkata Municipal Corporation Act, 1980 & Kolkata
Municipal Corporation Building Rules, 2009."
8. This order came to be challenged by the appellants-promoters in
WPA 7373 of 2024. Private respondent no.8 viz. Dr. Asoke Kumar Datta
also filed a writ petition being WPO 257 of 2024 praying for
implementation of the orders.
9. Both the matters came to be disposed of by the impugned
judgment wherein the Hon'ble Single Judge dismissed the writ petition of
the appellants and directed implementation of the order passed by the
Director General (Building).
10. Learned Advocate for the appellants contends repairs had been
undertaken in terms of the plan sanctioned under Rule 3(ii)(e) of the
Building Rules of 2009. During repair work the dilapidated structure
collapsed. A new structure was being rebuilt in terms of the extant
building rules and a prayer for regularisation of the said structure is
pending consideration. However, the Director General's order notes the
existing structure was demolished in deviation of the plan sanctioned for
repairs.
11. Even if the appellant's version is accepted, it is clear no sanction
was obtained for erecting the new structure after the old structure had
collapsed.
12. Under such circumstances, Director General (Building) rightly
observed the new construction is in deviation of the plan sanctioned for
repairs under Rule 3(ii)(e) of the Building Rules of 2009 and passed
demolition order. We do not find any illegality in the said order.
13. As a last bid effort it is argued a prayer for regularisation of the
unauthorised structure is pending.
14. Hon'ble Single Judge rightly observed there is no scope to
regularise a wholly unauthorised structure which had been built without
a sanction plan. The argument of the appellants that the building was
rebuilt in terms of the extant building rules is wholly fallacious.
15. Section 392 of the Kolkata Municipal Corporation Act, 1980
prohibits a person from commencing erection of any building except
without previous sanction of the Municipal Commissioner and in
accordance with the provisions of the Act, Rules and Regulations framed
thereunder. Section 393 of the said Act provides every person who
intends to erect a building shall apply for sanction by giving notice in
writing to the Municipal Commissioner in such form along with fees as
may be prescribed.
16. In absence of a valid sanctioned plan the construction undertaken
is wholly unauthorised and there is no scope of regularisation which may
be availed in cases of minor deviations from a valid sanctioned plan.
17. In such light of the matter, we find no reason to interfere with the
impugned order.
18. Appeal is accordingly, dismissed.
19. In view of dismissal of the appeal, connected application being
CAN 2 of 2024 is also disposed of.
20. There shall be no order as to costs.
21. 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
