Calcutta High Court (Appellete Side)
Sk. Nizamuddin vs Principal Secretary on 23 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 75
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
FMA 775 of 2024
Sk. Nizamuddin
Vs.
Principal Secretary, & Ors.
For the Appellant : Mr. Bhagbat Chaudhuri
For the State : Mr. Indranil Roy
Mr. Tapas Ballav Mandal
For respondent no. 9 : Mr. Debabrata Saha Roy
Mr. Debasrati Chakraborti
For Howrah Zilla Parishad : Ms. Mekhla sinha
Ms. Malabika Roy Dey
Heard on : 17.09.2024 & 23.09.2024
Judgment on : 23.09.2024
Joymalya Bagchi, J.:-
1. Appellant had approached the Hon'ble Single Judge, inter alia,
praying for setting aside order dated 5.6.2023 whereby the district
engineer had rejected his prayer for demolition of a G+4 building
which had been constructed in violation of the sanction plan and
relevant building rules. Appellant has also assailed the order of
regularisation of Howrah Zilla Parishad with regard to the said
deviation. Relying on the report of the engineer, Hon'ble Single
Judge held the deviations are minor and had been regularised.
Accordingly, the writ petition was dismissed.
2. Learned counsel for the appellant contends Hon'ble Single Judge
failed to consider the regularisation order had been assailed in the
writ petition.
3. Learned counsel for the private respondent submits regularisation
was done as per Rule 15 of the Howrah Zilla Parishad Bye laws,
2005.
4. We have considered the submissions of the parties in light of the
materials on record. Appellant/writ petitioner had approached this
court in WPA 21934 of 2022 challenging inaction of the respondent
authorities to take steps against the illegal construction of a G+4
structure without valid permission. Hon'ble Single Judge directed
the matter to be considered by the district engineer, Howrah Zilla
Parishad. Pursuant thereto, inspection was held at the premises
and report of the assistant engineer, Howrah Zilla Parishad was
placed on record. After considering the report and giving
opportunity of hearing to the parties, the district engineer held the
deviations beyond the sanction plan are minor and the said
deviations had been regularised under Rule 15 of the Howrah Zilla
Parishad Bye laws, 2005. Hon'ble Single Judge refused to interfere
with the decision of the district engineer, inter alia, on the ground
the regularisation order dated 23.9.2022 had not been assailed by
the appellant. However, in prayer (b) of the writ petition, the
appellant had assailed the regularisation order. It is also pertinent
to note the report of the assistant engineer does not mention the
nature and extent of deviation of the construction vis-a-vis the
sanctioned plan with regard to Floor Area Ratio (FAR) etc. which is
said to have been regularised.
5. In such view of the matter we consider it prudent to remand the
matter before the Hon'ble judge having jurisdiction to consider the
writ petition afresh particularly in respect of prayer (b) in the writ
petition. In order to adjudicate the regularisation order, Hon'ble
Single Judge shall be at liberty to direct fresh inspection of the
premises, if necessary, to determine the nature and extent of
eviations which had been regularised. Respondents are at liberty to
file affidavit-in- opposition to the writ petition within one week after
vacation. Reply if any, be filed one week thereafter.
6. With these directions, appeal is disposed of.
7. There shall be no order as to costs.
8. Urgent Photostat certified copy of judgment, order if applied for be
given to the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
tkm
