RAJU CHANDA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ application the petitioners have prayed for a direction on the respondents particularly on the Chairman, Habra Municipality, the respondent no.3 (for short the said respondent) to act in accordance with law and to hand over the original building plan relating to the construction of the second and third floors (hereinafter referred as the additional construction) at premises no. 1/1 Kanchari Para Road, Habra, North 24 Parganas (for short the "said premises") treating it to be as sanctioned since requisite fees have been paid and to withdraw the decision of the said respondent cancelling the Certificate of Enlistment regarding the business carried on by them in the name and style of M/s. Meena Bazar at the said premises since it was passed without their knowledge. Prayer has also been made for a direction upon the Board of Councillors of the Habra Municipality, the respondent no.2, and the said respondent to regularise the construction in excess of permissible floor area ratio for which fine has been paid and to cancel the notices dated 8th October, 2009 and 9th October, 2009 issued by the said respondent. Prayer has been made for a writ in the nature of Certiorari for production of the papers, records and documents.

(2.) The facts as stated in the petition are that the petitioner no.1 stated to be the owner of said premises submitted a site plan for construction of the ground floor and first floor ("G+1" for short) with the municipal authorities which was sanctioned on 6th January, 2009. THEreafter, G+1 construction was made. After completion of the first floor, the petitioner carried out additional construction by constructing the second and the third floor and the chile-kotha admittedly without any sanctioned plan. According to the petitioners, though there might have been minor deviations, the area and the height of the building did not exceed as mentioned in the site plan which could be regularised by payment of fine. Incidentally, on 17th April 2009 the petitioner submitted the site plan for additional construction along with the requisite fees. According to them, for the unauthorised construction the municipal authorities imposed a fine or penalty of Rs. 21,000/- which was deposited on 2nd May, 2009. On 8th May, 2009 the building plan for additional construction was furnished. Fee of Rs. 5,400/- was deposited. It has been stated that the petitioners, who are business partners, started business on the said premises after obtaining Certificate of Enlistment for the year 2009-10 and have been carrying on the business. However, on 21st September, 2009 the petitioners came to learn that on 8th September, 2009 the said respondent had published a notice in a local weekly newspaper cancelling the Certificate of Enlistment as the construction was allegedly made without following the due procedure of law. Being aggrieved by such cancellation, on 23rd September, 2009 a representation was made before the said respondent and prayer was made to hand over the original sanctioned building plan for the additional construction including the chile-kotha. THEreafter, the said respondent issued the impugned notice dated 8th October, 2009 directing the petitioner no.1 to appear on 21st October, 2009 before her regarding the alleged illegal construction. On receiving the said notice, a letter dated 15th October, 2009 was issued on behalf of the petitioner intimating, inter alia, that the actions were illegal, unlawful and were in violation of the principles of natural justice. THE matter was moved on 30th October, 2009 when besides issuing the directions for filing of affidavits, submission of the municipality was also recorded in the order that the Trade Licence though kept in abeyance was not yet cancelled. Pursuant to the directions affidavits have been exchanged and are on record.

(3.) Submission was pursuant to the letter dated 21st August, 2009 by the petitioner no.1, the said respondent by her letter dated 28th August, 2009 requested him to appear on 11th September, 2009 for showing cause as to why suitable steps should not be taken for carrying out illegal construction, which was refused. Subsequently, a similar letter dated 8th October, 2009 was issued requesting the petitioner no.1 to appear on 21st October, 2009 for hearing. Thereafter, by letter dated 9th October, 2009, Officer-in-Charge, Habra Police Station was requested by the said respondent to provide police help on 14th October, 2009 during inspection of the premises regarding unauthorised construction. According to the Municipality the letters dated 8th October, 2009 and 9th October, 2009 were in consonance with sections 16(5) and 220 of the Act. According to him since additional constructions have been carried out on the premises unauthorisedly by the petitioners wherein business is being carried on by them, the said respondent was justified in keeping the Certificate of Enlistment in abeyance.