BADAL DHARA Vs. CALCUTTA MUNICIPAL CORPORATION

JUDGEMENT

(1.) This is an appeal directed against an order passed by the learned single Judge dated 7th March, 2002 whereby the learned single Judge has allowed the writ petition and directed that the Corporation shall give at least two months' time to the private respondents to remove such unauthorised constructions and in default it shall take such steps to remove the same at the cost of the private respondents. It is further directed that if it is held that part sanction of the construction can be granted, the Corporation shall accordingly grant such part sanction and direct the private respondents to remove the remaining part of the erection made within a period of one month, in default, it shall be the obligation of the Corporation to remove the same at the cost of the private respondents. Aggrieved against this order the present appeal has been filed by the appellant.

(2.) The brief facts which are necessary for disposal of the appeal are that the private respondents though wanted to add an additional floor to their existing building, they made an application under Rule 3(2) of Calcutta Municipal Corporation (Building) Rules, 1990 (hereinafter referred to as the Rules) and therein sought permission to effect repairs and construction. Such permission was granted. The private respondents started making construction. The writ petitioners (respondent No. 1 and 2 who are the owners of neighbouring premises) approached this Court by filing a writ petition. The writ petition was summarily dismissed. The writ petitioners preferred an appeal against the order of dismissal. The Division Bench held that having regard to the mandate contained in the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the Act), the nature of construction that the private respondents intended to make could not be permitted under Rule 3(2) of the Rules. The Appeal Court held that the construction already effected was without sanction. However, the Appeal Court remanded the matter back to the Corporation to determine whether the construction were within the parameter of the sanction applied for. On remand the matter was decided by the Special Officer (Building) (delegate of the Municipal Commissioner) by his order dated 15th September, 2000 and in that it was held that the application made by the applicant. Badal Dhara is not entitled to get any valid sanction from the Calcutta Municipal Corporation in respect of his prayer for re-erection of the building in the premises under the existing provisions of Act and the Rules. The Special Officer held that in view of the order passed by the Division Bench in MAT No. 2274 of 2000 dated 2nd July, 2000 in which the sanction given by the Corporation under Rule 3(2) was declared nullity, the construction made on the basis of same was held to be unauthorised and directed the Corporation to take steps under section 400 of the Act after observing all formalities against such unauthorised construction in no time. Thereafter the matter was again taken up on 12th July, 2001 for demolition. Parties were heard and the Special Officer who was exercising delegated powers of the Municipal Commissioner held the construction to be unauthorised, though same arguments were repeated during the proceeding under section 400 which was negated by the Special Officer and the map was drawn in which he found a portion to be illegally constructed and he found that Rule 51 was violated as the height of the building is 7.40 meters whereas the width of the means of access to it is 0.888 meter. Similarly, he found that the building violates Rule 56(1), according to which every building not exceeding 8 meters in height shall have a rear open space at ground along the entire width of the building forming an integral part of the site of a minimum width of 2 meters. Here only 0.75 meter back space has been left instead of 2 meters. However, in view of the various decisions of this Court he observed the Municipal Commissioner has a discretion in the matter and it is not necessary that the Municipal Commissioner should order for demolition in each and every case of unauthorised construction, but the discretion has to be exercised rationally and not arbitrarily. He further observed that the forum was exercising the powers of the Municipal Commissioner as delegated under section 48(3)(b) of the Act and he is entitled to exercise the same discretion. He further observed that the case is a tragedy of errors and found that there were errors made by the Corporation as well as by the private respondents. Therefore, after considering the rival submissions he opined that it is not correct that the private respondents have constructed the first floor as per the sanctioned plan which, of course, now does not survive (in toto). The pillars at the first floor at its present state were not made as per the so called sanctioned plan. It kept some isolated bit columns at the first floor which are not safe on engineering point of view. There are deviations. He directed the private respondents to shift back the slab on the first floor at the eastern side from its present position keeping a clear opening space of 1.20 meters open to sky along the entire length of the buildings as per Rule 57 and to remove the first floor pillars which if allowed to retain may allow the private respondents to make further unauthorised construction. On making such shifting of slab and keeping the 1.20 meters wide space absolutely clear and open to the sky, then there will be no more blockage of the western side of the complainant's premises and their will be hardly any obstruction of air, light and ventilation of the complainant's premises from the side. He held that the rest of the unauthorised construction may be permitted to be retained by the private respondents subject to complying with certain preconditions which, in the opinion of the Special Officer, will meet the ends of justice. Accordingly, order under section 400 was passed. Aggrieved against this order an appeal has been filed before the Municipal Building Tribunal and the Tribunal has granted a stay order. Meanwhile, the writ petitioners (complainants) approached this Court by filing the present writ petition challenging the same order. The learned single Judge after hearing the parties allowed the writ petition and directed as aforesaid. Hence the present appeal by the respondents in the writ petition.

(3.) Learned counsel for the appellant strenuously urged before us that the appellants have filed a statutory appeal under section 400(3) before the Municipal Building Tribunal and the Tribunal is seized of the matter, therefore, the learned single Judge should not have exercised the discretionary power by interfering with this order. As against this, Mr. Bhattacharjee, learned counsel for the respondent writ petitioners, submitted that once the order passed by he Municipal Commissioner dated 15th September, 2000 has become final and which is not the subject matter of challenge before any forum, therefore, no further determination is required with regard to unauthorised construction, except to pass a demolition order. Learned counsel further submitted that illegal construction if it could be regularised then it can be so done under the orders of Municipal Commissioner for which learned judge has already directed. Therefore, it is not necessary for the appellants to have approached the Tribunal. It is true that whatever construction has been declared as unauthorised by the Special Officer who was exercising the delegated power of the Municipal Commissioner, that order having become final there was only question left for the Special Officer under section 400 is to effect demolition. But, at the same time, this Court has held that there is a discretion with the Municipal Commissioner to sanction any unauthorised construction in accordance with law. Reference in this connection has been made to Commissioner, Corporation of Calcutta v. Salendra Nath Banerjee reported in 1977(2) CLJ 505. This decision relied on an earlier Full Bench decision of this Court in Purusottam Lalji v. Ratanlal Agarwalla reported in AIR 1972 Cal 459. Therefore, in this context the learned counsel for the appellant submitted that since discretion has been vested in the Municipal Commissioner and that power is delegated to the Special Officer and the Special Officer has exercised the same under section 400 of the Act directing part demolition and part regularisation in accordance with law by order dated 12th July, 2001 and against that order the appellant/respondent has a right of statutory appeal under section 400(3) and which has been exercised by him and the appeal is pending before the Tribunal; at this stage, in the writ petition filed by the writ petitioner, the learned single Judge should not have interfered.