HARAN GHOSH Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(1.) In the writ petition, the petitioner has challenged the order dated 7th August, 2013 passed by the Executive Engineer (C) Building Department, Kolkata Municipal Corporation allowing the private respondent Nos. 7 to 12 to retain the unauthorized construction made by them in the car parking space on the ground floor at premises No. 74A, B.T. Road, Kolkata which was in deviation of the sanctioned plan on the ground that it is ultra vires the provisions of the Kolkata Municipal Corporation Act, 1980 (for short 'the Act') and the Kolkata Municipal Corporation Building Rules, 1990 ('Rules' for short). Prayer is for a direction on the Corporation to demolish the unauthorized construction and to restore the car parking space. After the matter was taken up, the learned advocate for the petitioner had filed a supplementary affidavit enclosing the order dated 24th May, 2012 passed in Demolition Case No. 44-D/1/11-12, Ward No. 005, Borough No. 1 (Kolkata Municipal Corporation vs. J.P. Chowdhury) by the Joint Municipal Commissioner (Revenue and Supply), authorized by the Mayor-in-Council to function as Special Officer (Building), whereby he had directed "for retention and regularization of all the impugned unauthorized construction including shortfall of car parking spaces as mentioned in the precis" on payment of fees/charges. It is submitted by the learned advocate for the petitioner that since the Act and the Building Rules do not confer authority or jurisdiction on the officials of the Corporation to pass an order of retention and regularization of an unauthorised construction on payment of money, the order may be directed to be set aside.

(2.) Learned advocate appearing on behalf of the respondent No. 11 submits that without going into the controversy an order may be passed directing the Director General (Building-II), Kolkata Municipal Corporation, the respondent No. 5 to sanction the revised plan which is pending.

(3.) Learned advocate appearing on behalf of the respondent No. 12 submits that the writ petition is not maintainable since the petitioner should have availed himself of the alternative remedy under section 415 of the Act by preferring appeal before the Municipal Building Tribunal. Submission is since civil suit has been filed and an interim order has been passed, no order may be passed.