Calcutta High Court
Md. Issa Hussain vs Kolkata Municipal Corporation And Ors on 6 March, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APO 11 of 2025 WITH
WPO 841 OF 2023
IA GA 1 of 2024
MD. ISSA HUSSAIN
Versus
KOLKATA MUNICIPAL CORPORATION AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant: Mr. Raghunath Chakraborty, Adv.
Ms. Tanusree Das, Adv.
Ms. Mohona Das, Adv.
For the KMC : Mr. Alak Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
For the State : Mr. D. Mukherjee, Adv.
Ms. Kalpita Paul, Adv.
HEARD ON : 06.03.2025
DELIVERED ON : 06.03.2025
2
DEBANGSU BASAK, J.:-
1.
The appeal is at the behest of the writ petitioner and directed against
the dismissal of the writ petition by the judgment and order dated
April 12, 2024 passed in WPO 841 of 2023.
2. The order of the Municipal Building Tribunal dated November 4,
2022 in BT Appeal No. 52 of 2021 is the subject matter of the writ
petition at the behest of the appellant. The appellant is one of the
tenants at the premises concerned. The contentions of the appellant
is that there are unauthorized construction in the building.
3. Learned advocate for the appellant submits that the fact that there
exists unauthorized construction stands established by reason of
such finding by the Special Officer (Building) and concurred in
appeal. He submits however both the Special Officer (Building) and
the Building Tribunal were overindulged in considering such
unauthorized construction to be minor deviation and proceeded to
regularize the same. He draws the attention of the Court to the
finding of the Special Officer (Building). He also draws the attention
of the Court to the two orders passed in the writ petition in the
earlier round of litigation and the review of such order.
4. Learned advocate for the appellant relies upon Kolkata Municipal
Corporation (Regularization of Building) Regulations, 2015 and
submits that, the objection raised by any local inhabitant of the
construction in question in terms of Regulation 4, was not taken into
consideration. According to him, in view of the objection raised,
regularization cannot be made for the unauthorized construction.
5. Learned advocate appearing for the Kolkata Municipal Corporation
(KMC) submits that, the so-called unauthorized construction is a set
of corrugated sheets covering an existing Varandah. He submits that
such construction can be regularized in terms of the Regulation of
2015.
6. The appellant is one of the tenants in an immovable property.
Appellant alleges unauthorized construction existing at such
property. Appellant approached the Writ Court also by way of WP
739 of 2017 claiming that there subsists an order for demolition and
that such order should be implemented. It was disposed of by an
order dated May 4, 2018. Such order, directed the Special Officer
(Building) of the KMC to complete the demolition proceeding in terms
of the notice dated January 4, 2017 in accordance with law.
7. An application for review was filed. On review, the High Court by
the order dated January 18, 2019 modified the order dated May 4,
2018. KMC Authorities were directed to hear every person
responsible for the unauthorized construction in accordance with
law, including the owner of the premises concerned. Authorities were
permitted to arrive at such finding as the fact scenario demands.
8. Again as noted above the writ petition being WP 739 of 2017 in
which the order dated May 4, 2018 was passed and the review
thereafter, in RVWO 2 of 2019 in which the order dated January 18,
2019 was passed, the appellant before us was a party thereof.
9. Parties acted in terms of the order dated January 18, 2019.
Special Officer (Building) upon hearing all persons concerned, found
that the quantum of unauthorized construction was 4.366 sq. mts.
Special Officer (Building) was of the view that such authorized
construction can be treated as minor unauthorized construction of
work as defined under Rule 3(1)(c) of the Regulation of 2015.
Consequently, Special Officer (Building) directed such unauthorized
construction to be regularized and retained under Rule 4 of the
Regulation of 2015 subject to the fulfillment of the pre-conditions
laid down therein.
10. Special Officer (Building) in his order dated October 24, 2019 laid
down three conditions such as the person responsible must furnish
a certificate from a KMC empanelled structural engineer certifying
that the stability and the foundation of the impugned constructions
are safe and sound and the materials used in accordance with law
for such construction. The other condition being that the person
responsible must pay fees for retention of the regularized
construction within 30 days from the receipt of the calculation sheet
and the third condition being the person responsible must furnish
an affidavit declaring on oath that he will not make any construction
whatsoever in the impugned premises without prior sanction from
the KMC Authority.
11. The appellant before us being aggrieved by the order dated October
24, 2019 passed by the Special Officer (Building) filed a writ petition
being WP 270 of 2020. Such writ petition was disposed of on
January 19, 2021 by permitting the appellant before us to avail of
the statutory alternative remedy of appeal.
12. The appellant before us preferred an appeal directed against the
order dated January 19, 2021 passed by the Writ Court in WP 270
of 2020. Such appeal being APOT 77 of 2021 was disposed of by the
Appellate Court on November 11, 2021.
13. Appellant preferred an appeal before the Building Tribunal being
BT 52 of 2021. Building Tribunal after hearing the respective parties
including the appellant concurred with the view of the Special Officer
(Building).
14. Being aggrieved by the order dated November 4, 2022 passed by
the Municipal Building Tribunal, the appellant filed a writ petition
being 841 of 2023 resulting in the impugned judgment and order
dated April 12, 2024.
15. Learned Single Judge, by the impugned judgment and order dated
April 12, 2024 noted the factual matrix of the construction allowed
to be retained. Learned Single Judge found that the Court is not
concerned with small and trifling manner. Learned Single Judge
refused to exercise jurisdiction on such ground.
16. The construction of 4.366 sq. mts. of corrugated tin sheet over an
existing Varandah was held to be unauthorized and permitted to be
regularized subject to the compliance of the terms and conditions
laid down by the Building Tribunal. Finding of the Special Officer
(Building) is not established to be perverse. Such finding of the
Special Officer (Building) was assailed in appeal and concurred to by
the Building Tribunal. Again the concurrence order of the Building
Tribunal dated November 4, 2022 is not established to be perverse.
17. Learned Single Judge therefore, correctly arrived at a finding that
the unauthorized construction cannot be regularized in terms of the
Regulation 2015 or that the discretion for regularization was
improperly exercised.
18. The contention that, objection of an inhabitant of the construction in
question ipso facto denudes the jurisdiction for regularization, is
unacceptable. Regulation 4 of 2015 notes the parameters which
should be taken into consideration while considering the request for
regularization. One of the parameters is objection raised by any local
inhabitant of the construction in question. Appellant no doubt falls
within the jurisdiction of inhabitant as contemplated under
Regulation 4. It is not the case of the appellant that his objections
were not taken into consideration. Mere raising of an objection ipso
facto does not denude the jurisdiction to regularize or for the Special
Officer (Building) and the Building Tribunal to deal with the
objection raised by the appellant towards regularization.
19. Again as noted above, such exercise of discretion is not established
to be perverse.
20. In such circumstances, we find no merit in the present appeal and
the same is dismissed along with all connected applications, without
any order as to costs.
(DEBANGSU BASAK, J.)
21. I agree.
(MD. SHABBAR RASHIDI, J.)
TR/
