SUKUMAR GANGULY Vs. HOWRAH MUNICIPAL CORPORATION

JUDGEMENT

(1.) THE writ petitioner has alleged that he sold a portion of holding no. 13, Motilal Ghosh Lane, howrah, to Respondent No. 5 Shri Tulsi Ranjan Samaddar by registering a Deed of conveyance dated 16th December, 1983 for the purpose of building on the said plot of the land. The aforesaid Respondent no. 5 submitted a building plan for sanction by the Howrah Municipal corporation. The prayer for sanction was refused and on refusal, the said Respondent No. 5 submitted an appeal before the building committee. The building committee relaxed the building rules and recommended for sanction of the plan. After receiving the sanctioned plan, the Respondent No. 5 started construction illegally in deviation of the sanctioned plan and the Municipal Authority in bona fide exercise of the statutory powers served a notice under Sec. 365 (1) of the Calcutta municipal Act 1923 to stop the construction of such unauthorised portion of the construction. Inspire of service of such notice, the respondent No. 5 made illegal construction viz. two balconies side wall and unauthorised construction on the north within 4 feet of the side space in deviation from the sanctioned plan. It is also alleged that during the petitioner's traveling abroad, the Respondent No. 5 had encroached upon the petitioner's land and blocked the petitioner's passage for use of the sweeper and in such circumstances, the petitioner filed a Title Suit being T. S. No. 298/1984 in the 3rd Court of Munsif at Howrah. On 22nd December, 1984, the petitioner also wrote a letter to the then Deputy Engineer requesting him to take necessary action as the Respondent No. 5 continued with the illegal construction in deviation of the sanctioned plan. The petitioner also sent repeated letters on the said acorn. The Deputy Engineer, however, by his notice dated 2 9th February, 1985 asked the Respondent No. 5 to demolish the unauthorised portion of the building failing which the corporation would take steps of demolition. The Respondent No. 5 instead of complying with the requisitions went on to complete the building in utter deviation of the sanctioned plan. On the 12th December 1985, the respondent No. 5 also moved a writ application impleading the petitioner as a party alleging that inspire of construction made according to the sanctioned plan, the Corporation without giving him a reasonable hearing as per Provision of Section 177 of the Howrah Municipal corporation Act, 1980 had illegally served upon him a notice under Section 365 (1) of the Calcutta Municipal Act, 1923 and also a notice for demolition of alleged unauthorised construction and prayed for cancellation of the same. On 7th January, 1986, Hon'ble Mr. Justice Prabir Kr. Mazumdar after hearing the respective parties, directed the then Deputy engineer to inspect the site and to submit a report as the work done in deviation of the sanctions plan. On 3rd February, 1986, the said writ application was also disposed of directing the Municipal corporation, the Respondent No. 1 to give a hearing to the representation that might be made by the petitioner and the Respondent No. 5 and to pass orders in accordance with law. Pursuant to the said order passed by the High Court, the Howrah Municipal Corporation passed an order on 10th March, 1986, retaining all the unauthorised constructions of the three-storeyed house done in deviation of the sanctioned plan and in infringement of irreparable building rules.

(2.) BEING aggrieved by the said order, the petitioner has moved the present writ application before this court.

(3.) IT is submitted on behalf of the petitioner that the Respondent no. 5 having already once obtained sanction in relax able of relaxation building rules is not entitled to a further relaxation when the construction has been carried out in deviation of the sanctioned plan. Apart from breach of building rules the alleged construction is in direct contravention of the provisions of law and the Respondent Nos. 1-4 are not performing their statutory duties in failing to initiate proper proceeding for the demolition of the unauthorised construction made in deviation of the sanctioned plan. The wrongful sanction on the part of the Respondent No. 5 as well as the failure of the Respondent nos. 1-4 to take effective measures according to law are arbitrary and accordingly, the petitioner is entitled to relief as prayed for. The Respondent No. 5 contested the case by filing an affidavit -in- opposition. Mr. Rabindranath Chaudhury, learned advocate, appearing for the Respondent No. 5 submitted that after purchasing portion of holding no. 13, Motilal Ghosh Lane, Howrah measuring about 8 chattack 32 sq. ft. the Respondent No. 5 submitted a building plan for sanction by the Howrah Municipal Corporation. After receiving the provisional permission for construction, the Respondent No. 5 deputy Engineer by his notice dated 2 0th February, 1985, asked him to stop construction and to demolish crtain portion of the building on allegation of some deviation of the plan. The Respondent No. 5 being aggrieved moved a writ application stating, inter alia, that the corporation Authorities without giving him a reasonable hearing as per provision of Section 177 of Howrah Municipal Corporation Act, 1980 have illegally served notice on him. After hearing the parties, hon'ble Mr. Justice Prabir Kr. Mazumder was pleased to direct the deputy Engineer to give a hearing to the Respondent No. 5 and pass an order in accordance with law.