Samir Kumar Mukherjee vs Calcutta Municipal Corporation

Susanta Chatterji, J.—The writ petition has been heard along with another matter in the Appellate Side, being C.O. No. 11814 W/89 (Anil Ratan Banerjee and 12 Ors. v. The Calcutta Municipal Corporation and Ors.). This writ petition has been filed by 10 individuals and 2 private ltd. companies, namely. Khaniva Housing, (India) Pvt. Ltd. and Happy Hope (India) Pvt. Ltd., both of 9/12, Lalbazar Street, Calcutta-1. The Petitioners have prayed, inter alia, for a writ of mandamus commanding the Respondents to withdraw, cancel and/or rescind the impugned notice dated November, 21, 1990, being Annex. ''A'' to the writ petition issued by the Building Inspector, ''Calcutta Municipal Corporation, Bourough No. 13, being the Respondent No. 5 in the writ petition and for, consequential reliefs to restrain the Respondents to interfere with the lawful activities of the Petitioners to raise the building on the strength of the building plan obtained by the Petitioners in terms of the Bengal Municipal Act. In fact, the writ Petitioners have challenged the notice u/s 401 of the Calcutta Municipal Corporation Act dated November 21, 1990, issued by the Respondent No. 4, namely, the Building Inspector. Bourough No. 13 of the Calcutta Municipal Corporation. It is stated in detail that the Petitioners arc the owners of the property situated at 113/112 Diamond Harbour Road, Calcutta, and they have purchased the said plots for the purpose of building up the flats for housing accommodation. It is further placed on record that the plan was submitted on August 24, 1987, before the Municipal Authorities, namely South Suburban Municipality, and there was no refusal to sanction the plan nor any explanation was called for and as a result thereof the plan was deemed to have been sanctioned as alleged. It is further placed on record that there was a civil suit in between the Petitioners and their vendor, and there was a delay in raising the construction. The Petitioners have mainly challenged the impugned notice dated November 21, 1990, on the ground that the impugned notice is highly vague and unlawful inasmuch as, it does not at all specifically mention about the nature of violation of the conditions of sanction it is asserted that in the absence of any specific mention about the violation, it is practically impossible for a man of ordinary prudence to appreciate what are the deviations or to lake remedial steps thereto and there is no specific mention about the violation of the conditions of sanction. It is claimed that before issuing the impugned notice, the Respondents Municipal authorities ought to have inspected the construction job undertaken by the Petitioners to see that the job carried on by the Petitioners are anything contrary to and inconsistent with the provision of law. Developing all these points the Petitioners have sought the relief as indicated above.

The writ petition is seriously contested by the Respondents the Calcutta Municipal Corporation authorities by filing a comprehensive. affidavit in opposition sworn by one Basudeb Roy, Disl., Building. Surveyor. It is placed on record that one Sri D.R.K. Karnani, the owner of the premises No. 113/112, Diamond. Harbour, Road, Calcutta applied on or about February 22, 1985, to the Calcutta Municipal Corporation, South Suburban Unit, Behala, for erection of eight storeyed building (6 blocks) with underground basement and the said plan was sanctioned being No. 27050 dated April 22, 1985. The said sanction was ac corded under the provision of Bengal Municipal Act, 1932. It is further stated that u/s 319A of the Bengal Municipal Act, 1932, it is mandatory on the part of the owner of the building to give a written notice of commencement to erect the building within seven days to the Commissioner, specifying the date on which he proposes to commence the work, but in the instant case the recorded owner did not serve any notice in compliance with the aforesaid provision of the statute. Accordingly, there was no valid sanction after April 22, 1987. There was no prayer for renewal of the said plan by D.R.K. Karnani. Instead, he submitted a fresh plan for addition of another four stories, namely of 12 storeyed building on August 24, 1987, after expiry of two years. A fresh plan was received by the Engineer, Calcutta Municipal Corporation, for a 12 storeyed building on a plot of land of 3 bighas cottahs 9 sq. ft. The Municipal authorities found several irregularities in the said plan. Previously a writ petition was moved before M.N. Mullick, J. (as His lordship then was) and the said matter is pending in the Appellate Side being Co. 11814(W) of 1989. The other allegations of the writ Petitioners have been controverted. The subject matter as to the sanction of the building plan by way of deeming provision has been elaborated in the writ petition pending in the Appellate Side. In the present writ petition the main challenge is against the impugned notice u/s 401 of the Calcutta Municipal Corporation Act.

In course of hearing it was submitted before this Court that the writ Petitioners have already constructed in deviation of the sanctioned building plan and the building has been raised with spurious materials and the building is likely to be crumbled down and steps are required to demolish the unauthorised building. Considering the submissions made on behalf of the writ Petitioners and the Calcutta Municipal Corporation authorities, this Court appointed the Head of the Department of Faculty of Engineering and Technology and of Civil Engineering of Jadavpur University and also a practising Advocate of this Court has Joint Special Officers to visit the site and to file reports as to the nature of the construction made by the Petitioners in view of the serious allegations that steps have been Taken to raise construction in deviation of the sanctioned plan and that there is likelihood of collapse of the building for not conforming with the technical details of raising the building without any valid sanctioned plan: Special Officers were directed to visit this site upon notice to the parties and cause inspection in terms of the Court''s order.

Pursuant to the directions of the Court, Professor Niloy Chowdhury, Ph.D, Head of the Department of Civil Engineering, Jadavpur University, has filed two sets of report. Sri Subroto Mukherjee, an Advocate, appointed as another Special Officer, has also filed a separate report. From the admitted reports filed before this Court, it transpires that the area at premises No. 113/112, Diamond Harbour Road, measures 3 bighas 7 cottahs 9 chittacks 5 sq. ft. equivalent to 4,467.40 sq. meters is protected on all sides by 13 cm. thick brick wall of 1.9 m. high. There are no permanent structures built thus far as would be seen from the photographs attached with the report filed by said Dr. Niloy Chowdhury by a forwarding letter dated September 18, 1991. This Special Officer has observed that there are certain temporary structures for storing construction materials and to allow the chowkider to take shelter. The second report filed by said Dr. Niloy Chowdhury on October 14, 1991, indicates, inter alia. that there are 7 rooms, excluding the one used as toilet, built inside the premises out of which 6 appear to be new. The brick walls of the rooms are built upto the roof. But the roofing is of temporary nature being G.C.I. sheet roof. These 6 rooms are alleged to be built pursuant to order dated November 8, 1990, by U.C. Banerjee J. and order dated December 27, 1990, passed by Mukul Gopal Mukherjee J. These 6 rooms have been built exactly at locations where the 6 corner rooms of 6 main blocks proposed to be constructed as per sanctioned plan would indicate. If the roof could have been cast with reinforced Cement Concrete those could very well fit with the sanctioned plan. It is stated that the second report should be read along with the first report. The attention of the Court has been drawn to the order dated December 29, 1990, passed by Mukul Gopal Mukherjee, J. as His lordship was considering the matter and the Petitioners were allowed to make construction up to the ground floor level in supersession of the notice dated December 29, 1990, as issued by the District Building Surveyor u/s 401 of the Calcutta Municipal Corporation Act in respect of the premises No. 113/112 Diamond Harbour Road. By another order dated December 6, 1990, passed by Mukul Gopal Mukherjee, J. there is indication of granting leave to the Calcutta Municipal Corporation to post guards to prevent further construction.

From the report filed by Sri Subroto Mukherjee, Advocate, Special Officer, dated September 30, 1991, it transpires that he visited the premises in presence of the representatives of both sides and found that there existed temporary structure for storing materials and to allow the chowkidar to take shelter, and there is no building in deviation of the sanctioned plan and the question of raising construction which is likely to be crumbled down is absolutely erroneous A photo has also been attached with the said report.

From the averments made in the writ petition, in affidavit-in-opposition and from the reports of the special officers, it appears that till now no constructions have been raised in terms of the alleged building plan sanctioned and or till to be sanctioned. Since there is no construction, the apprehension of the Calcutta Municipal Corporation Authorities that unauthorised constructions have been raised with spurious building materials and with erroneous technical device is without any merit. It is to be examined now as to whether there is any justiciability to serve notice u/s 401 of the Calcutta Municipal Corporation Act.

Section 401 of the Calcutta Municipal Corporation Act, 1980, envisages, inter alia Section 401. Order of stoppage of buildings or works in certain cases

(1) Where the erection of any building or the execution of any work has been commenced or is being carried on without or contrary to the sanction referred to in Section 396 or in contravention of any, condition subject to which such sanction has been accorded or in contravention of any provisions of this, Act or the rules or the regulation made thereunder, the Municipal Commissioner may in addition to any other action that may be taken under this Act, by order, require the person at whose instance the building or the-work has been commenced or is being carried on to stop the same forthwith.

(2) No Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of t his section.

(3) If an order, made by the Municipal Commissioner u/s 400 or under Sub-section (1) of this section directing any person to slop the erection of any building or the execution of any work is not complied with, the Municipal Commissioner may take such measures as he deems fit or may require any Police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified by the Municipal Commissioner and such Police officer shall comply with such requirement.

(4) After the requirement under Sub-section (3) has been complied with, the Municipal Commissioner may, if he thinks fit, depute by a written order a Police officer or an officer or other employees of the Corporation to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued.

(5) Where a Police officer or an officer or other employee of the Corporation has been deputed under Sub-section (4) to watch the premises, the cost of such deputation to be determined by the Corporation by regulations shall be paid by the person at whose instance such erection or execution is being continued or to whom notice under Sub-section (1) has been given and shall be recoverable from such person as an arrear of tax under this Act.

This section gives the Municipal Commissioner a special power for passing an order of stoppage of building or works in certain cases. When it appears to the Municipal Commissioner that the erection of any building or execution of any work has commenced or is being carried on without sanction or contrary to the sanction applied for u/s 396 of the Act or in contravention of the terms and conditions of the sanction or in contravention of any provision of the Act or the rules and regulations made thereunder, the Municipal Commissioner by order may stop the work of building or the execution of the work forthwith. This action may be taken by him in addition to the other steps which he may take for the prevention of unauthorised construction. It is well-settled that a notice u/s 401 should not be vague, indefinite and for the purpose of unnecessary interference. The Municipal Commissioner has to apply his mind to cause issuance of such notice in an appropriate case. This Court has scrutinised the said notice u/s 401 of the Calcutta Municipal Corporation Act which has since been challenged in the instant case and this Court is convinced that the impugned notice has been issued without application of mind and without consideration of all the facts and circumstances of the case. Since the Petitioners have riot at all raised any construction in terms of the building plan and since there is already a case of claim that a building plan is deemed to have been sanctioned the impugned notice suffers from inherent defects. Moreover, submissions were made before this Court that the construe-lions have already been raised in deviation of the sanctioned plan and the constructions were likely to be crumbled down for technical defects and for use of spurious building materials. Such allegations appear to be wholly unwarranted and uncalled for. This Court does not find any merit to sustain the impugned notice u/s 401 of the Calcutta Municipal Corporation Act, which is the subject-matter of the present writ petition. For the aforesaid reasons this Court finds sufficient merit in the contention of the writ Petitioners and, accordingly, the writ petition is allowed by quashing the impugned notice dated November 21, 1990, issued by the Building Inspector, the Calcutta Municipal Corporation, Borough No. 13.

There is no order as to costs.

Application allowed, notice quashed.