Rekha Swarnakar vs State Of West Bengal & Ors

The respondent no. 7 in W.P. 3550 (W) of 2016 is the appellant before us. She is aggrieved by the judgment and order dated September 4, 2018 passed by a learned Judge of this Court disposing of a writ petition [W.P. 3550 (W) of 2016] filed by the respondents 7 to 9 herein (hereafter the writ petitioners).

CAN 9119 of 2018 is an application for stay, filed in the appeal.

While hearing the stay application, we have heard the parties on the merits of the appeal. We propose to dispose of the appeal here and now treating it as on day's list and dispensing with all formalities.

By presenting the writ petition, out of which this appeal arises, the writ petitioners sought for a direction upon the authorities of Howrah Municipal Corporation (hereafter the Corporation) to demolish an illegal building constructed by the appellant.

We consider it fit and proper to quote below the relevant findings returned by the learned Judge:

"Apparently, the private respondent undertook a construction at the subject premises after obtaining a sanction for reconstruction. The sanction granted by Howrah Municipal Corporation was to allow the private respondent to construct one additional floor over the existing structure. The private respondent proceeded to demolish the existing structure and construct a two storied building at the premises concerned. The entirety of the new construction has to be held as illegal and the new construction is, therefore, unauthorized. Permission for such construction was not obtained from the Howrah Municipal Corporation as disclosed in the affidavit-in-opposition. However, Howrah Municipal Corporation in its affidavit has taken a stand that, despite such new construction being made, it can be allowed to be retained on payment of retention fees.

In my view, the retention granted by Howrah Municipal Corporation is not permissible. The entire construction is unauthorized. A person cannot obtain sanction for construction on the basis represented and then alter the same without the permission of Howrah Municipal Corporation. As noted above, the permission was for construction of an additional floor on the existing structure. The petitioners did not make additional construction on the existing structure. It proceeded to demolish the existing structure and then construct thereon. That, with respect, cannot be treated as a minor variation from the original sanctioned plan warranting retention to be allowed. ** ** ** **

In the present case, I am not in a position to return a finding that, the construction consists of deviation, which can be termed to be minor. Demolishing an existing structure and making a fresh structure cannot be said to be minor deviation. Significantly, if the petitioners had asked for construction after demolition of the existing structure, it would have had a lessor area to construct on. It cannot be allowed to take advantage of its own wrong. In such circumstances, the impugned order of retention granted by Howrah Municipal Corporation is set aside.

It is the contention of the private respondent that, the order of retention is not under challenge in the present writ petition. Therefore, the Writ Court should not quash such order of retention.

With respect, the petitioners complain of unauthorised construction at the subject premises. The order of retention was disclosed in the affidavit-in-opposition filed by Howrah Municipal Corporation. As noted above, such order of retention cannot be allowed to remain.** ** **"

This was followed by a direction upon the Corporation to initiate proceedings under section 177 of the Howrah Municipal Corporation Act, 1980 (hereafter the Act), against the appellant within a period of a fortnight from date and to make an endeavour to complete the same within a period of twelve weeks thereafter.

Mr. Banerjee, learned advocate appearing for the appellant, had contested the finding returned by the Corporation.

In our order dated July 2, 2019, we had recorded what the allegation against the appellant precisely was: that although she was permitted to raise construction of an additional floor over the existing ground floor structure, she demolished the ground floor structure and raised a two-storied new building.

Thereafter, we had granted the appellant an opportunity to support her case by producing relevant evidence before us on the next date.

Although a supplementary affidavit was filed by the appellant, nothing substantial transpired therefrom.

We had then asked the appellant to produce pictures of the old structure as well as the new building. Such pictures have been placed before us by Mr. Banerjee today. On the basis of our visual impression of such pictures, we have no hesitation in holding that the allegation against the appellant levelled by the writ petitioners, and as found by the Corporation, is absolutely correct. An old one storied pucca structure, which hitherto before stood on the concerned plot of land, was demolished to make way for a new two-storied building.

Having regard to such state of affairs, we are of the considered opinion that the learned Judge was perfectly justified in His Lordship's interference with the order of the Corporation allowing retention of such illegal construction.

Although provisions have been introduced with effect from September 20, 2017 by way of a proviso to section 177 of the Act permitting the Commissioner of the Corporation to regularize 'minor unauthorized erection', or 'execution of any minor work without sanction under the Act', or 'minor deviation from the sanctioned plan' or 'execution of any minor erection or work in contravention of any sanctioned plan' thereunder, the terms "minor unauthorised erection, minor work, or minor deviation" were required to be determined by regulations framed under the Act; however, such regulations are yet to see the light of the day.

In that view of the matter, the Corporation was not at all justified in allowing retention of the unauthorized construction raised by the appellant. The learned Judge, in our view, visualized the controversy in the proper perspective and made directions which, interests of justice, demanded.

We find no reason to interfere with the judgment and order under challenge.

The appeal as well as the stay application stand dismissed. There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties as expeditiously as possible.