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Judgment
Party/parties are represented in the order of their name/names printed above in the cause title.
Two issues essentially confront this Court in the adjudication.
The first issue relates to conversion of the construction at the premises in issue intended to be used as car parking space on the ground floor by constructing it with masonry brick walls. The second issue relates to unauthorized construction on the 4th floor of the premises in issue.
With regard to the first issue, the attention of this Court is drawn by the learned counsel appearing for the parties to page 277, which is an order dated 5th April, 2012, passed by one Somnath Pal, Dy. Chief Engineer (Bldg.)/South, KMC in Demolition Case No.01-DIV/12-13. By the order of 5th April, 2012, the said Somnath Pal, Dy. Chief Engineer has permitted the person responsible/the developer/the present private-respondent no.7 by the stroke of a pen to convert 11 numbers of car parking space on the ground floor with masonry brick walls on payment of retention charges.
This Court is reminded by the learned counsel appearing for the petitioner that at the time when the order of 5th April, 2012 was passed, Section 400 of the KMC Act, 1980 did not enjoy the amendment as incorporated by its first proviso brought into effect from 15.1.2015 permitting the Municipal Commissioner or, his delegate to regularize minor unauthorized erection or execution of any minor work without sanction under this Act.
Therefore, with regard to the first issue it is evident that the order dated 5th April, 2012 is at the pre-amendment stage, that is without the Municipal Commissioner or his delegate holding the power to regularize minor construction. Second, this Court must, at this stage, prima facie express its surprise at the sweep of power exercised by the said Somnath Pal, Dy. Chief Engineer (Bldg.), acting as the delegate of the Municipal Commissioner by permitting the conversion and retention of 11 numbers of car parking space.
Therefore, notwithstanding the arguments in favour of a statutory appeal, this Court intends to examine in writ jurisdiction the scope of exercise of the jurisdiction vested in the office of the then delegate of the Municipal Commissioner, the said Somnath Pal on the basis of satisfactory affidavits to be filed both on behalf of the respondents/KMC and the said Somnath Pal, who shall be now impleaded as a party respondent to this writ petition.
On the second issue, this Court finds that the respondents/KMC have taken steps to issue a notice under Section 401 of the Act for stopping construction on the 4th floor. It is expected that by the next date of hearing every progress under the Section 401 notice (supra) shall be placed before Court by way of a Report on Affidavit of the respondents/KMC.
Now, turning the Court''s attention to the conduct of the petitioners, who are waking up to the alleged unauthorized construction in 2017 after orders connected thereto were passed way back in 2012 and, have been in continuous occupation of their allotted place in the premises for the past five years, this Court permits the respondents/KMC and the respondent no.7 to respond to the writ petition, including the issue of its maintainability, excepting the observations of this Court pertaining to the order dated 5th April, 2012 (supra), by way of an affidavit by the next date of hearing.
Let affidavit-in-opposition be filed within a period of three weeks from date; reply within two weeks thereafter. Liberty to mention after the period of grant to exchange affidavits is complete strictly upon notice to the other sides.
Parties shall maintain the present status quo with regard to the property in issue until further orders.
Let the Report furnished by Learned Counsel for the respondents/KMC be kept on record.