BISWANATH GHOSE Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(1.) A dishonest builder, who raises construction without any sanction plan, cannot be treated at par with an honest builder who, in the process of raising construction with a sanctioned plan, makes minor deviation unintentionally. So far as the dishonest builder is concerned, no leniency should be shown to him and/or the illegal construction raised by him and in case such construction is raised by such a builder with profit earning motive and/or for commercial exploitation out of such illegal construction then the Municipal Authority should not relax the Building Rules and Regulation for regularizing such illegal construction by keeping in mind that exercise of such power of relaxation is an exception to the Rule. However, such a rigid view need not be taken to regularize minor deviation which was made bonafide in the process of raising some construction with a sanctioned plan. In such cases, some laxity may be shown to regularize such minor deviation by relaxing the Building Rules or Regulations provided such construction is structurally stable and does not affect the ventilation i. e. right to air and light of the neighbouring owners and/or occupiers of the adjoining premises and safety of public life and property is not endangered by retention of such construction.

(2.) In fact, the tendency of raising unauthorized construction by consuming a FAR more than the allowable limit started growing rapidly since 1980s when construction of high rises by the dishonest builders in the cities was made at rampant. Prior to 1980s this disease did not take the shape of epidemic. Very few builders had their carriage to raise construction without sanction plan or raise construction in deviation of the sanction plan but now a days after 1980's unauthorized constructions are made by the dishonest builders at rampant. As such, the old Building Rules where immunity from demolition of some kind of unauthorized constructions was given after such unauthorized constructions were assessed and rates and taxes were realized for a period of twelve years, had to be changed to combat this dishonest builders by laying emphasis on public safety and public security. Thus, unless the building rules are implemented strictly the public safety and/or security and the environment in the city cannot be maintained properly.

(3.) This view has been reiterated by the Hon'ble Supreme Court as well as this Hon'ble Court repeatedly in various decisions. As such, this Court is required to consider the merit of this writ petition by keeping in mind the aforesaid settled principles of law.