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Judgment
Hon''ble Justice Jyotirmay Bhattacharya
A dishonest builder, who raises construction without any sanction plan, cannot be treated at par with an honest builder who, in the process of raising construction with a sanctioned plan, makes minor deviation unintentionally. So far as the dishonest builder is concerned, no leniency should be shown to him and/or the illegal construction raised by him and in case such construction is raised by such a builder with profit earning motive and/or for commercial exploitation out of such illegal construction then the Municipal Authority should not relax the Building Rules and Regulation for regularizing such illegal construction by keeping in mind that exercise of such power of relaxation is an exception to the Rule. However, such a rigid view need not be taken to regularize minor deviation which was made bonafide in the process of raising some construction with a sanctioned plan. In such cases, some laxity may be shown to regularize such minor deviation by relaxing the Building Rules or Regulations provided such construction is structurally stable and does not affect the ventilation i.e. right to air and light of the neighbouring owners and/or occupiers of the adjoining premises and safety of public life and property is not endangered by retention of such construction. In fact, the tendency of raising unauthorized construction by consuming a FAR more than the allowable limit started growing rapidly since 1980''s when construction of high rises by the dishonest builders in the cities was made at rampant. Prior to 1980''s this disease did not take the shape of epidemic. Very few builders had their carriage to raise construction without sanction plan or raise construction in deviation of the sanction plan but now a days after 1980''s unauthorized constructions are made by the dishonest builders at rampant. As such, the old Building Rules where immunity from demolition of some kind of unauthorized constructions was given after such unauthorized constructions were assessed and rates and taxes were realized for a period of twelve years, had to be changed to combat this dishonest builders by laying emphasis on public safety and public security. Thus, unless the building rules are implemented strictly the public safety and/or security and the environment in the city cannot be maintained properly.
This view has been reiterated by the Hon''ble Supreme Court as well as this Hon''ble Court repeatedly in various decisions. As such, this Court is required to consider the merit of this writ petition by keeping in mind the aforesaid settled principles of law.
Here is the case where the petitioner after demolishing the staircase leading to the third floor from the second floor level casted staircase from second floor level to the third floor level along with stair head room and thakur ghar by casting RCC Slab at the third floor level on the new construction. A water reservoir has also been constructed over the roof of the staircase. As such a demolition proceeding was initiated by the Municipal authority. The Special Officer (Building) held that various provision of Building Rules such as Rules 56, 57, 61, 109 and 110 of the Building Rules were violated by the petitioner. The requirement of maintaining compulsory site space and back space has not been complied with. The height of the building exceeds the maximum allowable height. More F.A.R. has been consumed by the petitioner in excess of the allowable limit. In such set of facts the Special Officer (Building), directed the petitioner to demolish the building at his own cost and risk within fifteen days from the communication of the said order, in default the K.M.C. authority will demolish the same at it''s the cost and risk of the person responsible for such construction. An appeal was preferred by the petitioner before the Building Tribunal for challenging the legality of the said order. The said appeal was also dismissed by the Appellate Tribunal on contest by affirming the order of the Special Officer (Building). Even the application for review filed by the petitioner for reviewing the said order of the Appellate Tribunal was rejected by the said Tribunal by holding inter alia that the order sought to be reviewed need not be recalled as the petitioner was found to be guilty and was convicted for committing an offence u/s 392/610 of the K.M.C. Act and he was sentenced to pay a fine of Rs. 1000/- in default to suffer S.I. for thirty days. The time for demolition of the unauthorized construction by the petitioner was extended for a period of sixty days from the date of the said order failing which the K.M.C. authority was permitted to demolish the same at the risk and cost of the person responsible for such construction. The legality and/or propriety of the said order of the Appellate Tribunal is under challenge in this writ petition.
Mr. Rupak Ghosh, learned Advocate, appearing for the petitioner, cited several decisions of this Hon''ble Court as well as of the Hon''ble Supreme Court to support his contention that the extent of the illegal construction is so negligible in the present case, such negligible unauthorized construction should have been compounded by the Municipality Authority subject to fine. The decisions which were cited by Mr. Ghosh in support of his aforesaid contention are as follows:
i) Corporation of Calcutta Vs. Mulchand Agarwalla,
ii) Purusottam Lalji and Others Vs. Ratan Lal Agarwalla and Others,
iii) In the case of Rajatha Enterprises Vs. S.K. Sharma and Others,
iv) In the case of Friends Colony Development Committee Vs. State of Orissa and Others, .
In all the aforesaid decisions it was held uniformly that in appropriate cases where it is found that there has been infraction of the rule which cannot be relaxed or which has not been relaxed, the party showing sufficient cause with the Municipal Authority, for example, that the infraction is of minor nature and has not, in any way, affected the sanitation or ventilation and the amenities of the building in question and other adjoining premises, then the Municipal authority has the discretion not to order demolition.
According to Mr. Ghosh, the present case is of such nature where there is no chance of creation any public nuisance and/or affection of the sanitation and ventilation of any adjacent premises and as such demolition of such unauthorized construction should not have been directed.
Let me now consider the said contention of Mr. Ghosh in the present set of facts.
Here is the case where this Court finds that the petitioner raised the unauthorized construction without obtaining any sanction plan. He admitted his guilt for raising such unauthorized construction in the criminal proceeding. Penalty was imposed upon him. He deposited the fine. Thus, raising of unauthorized construction in the premises was admitted by him. Though the petitioner claims that the extent of such unauthorized construction is negligible one and as such the Municipal authority should have compounded the said unauthorized construction but this Court, after considering the nature of the violation made by the petitioner in raising such unauthorized constriction, cannot agree with the submission of the learned Advocate of the petitioner. May be the extent of such construction is not so extensive but the violations of the building rules are serious in nature. The compulsory site space and back space have not been left. The height of the building exceeds the permissible limit. The FAR consumed also exceeds the allowable FAR. The stability of the building which is a very old one and located in a very congested area of the city, cannot be easily ascertained. No certificate of fitness is forthcoming from any side. Thus, retention of such unauthorized construction, in my view, may endanger public life and safety. Extent of unauthorized construction may not be very extensive but such minor unauthorized construction raised in deviation of the building rule on a very old building located in a congested area of the city, may endanger the public life and safety. As such, smallness of the unauthorized construction cannot always be a ground for refusal to demolish the unauthorized construction in every case. If it is found that such construction may endanger public life and safety demolition should be directed notwithstanding the extent of unauthorized construction is very minor in nature. When the expert body after considering the nature of the violation made by the petitioner in raising such unauthorized construction, refused to exercise its discretion by regularizing such unauthorized construction and when such finding of the expert body was also affirmed in appeal by the Appellate Tribunal, this Court, sitting in writ jurisdiction, does not think it fit and proper to interfere with such discretionary order passed by the Special Officer (Building) when there is nothing on record to show that the concerned authority refused to exercise discretion in favour of the petitioner malafide.
Though Mr. Ghosh led much stress on the decision of the Hon''ble Court in M/s. Rajatha Enterprise vs. S.K. Sharma & Ors. reported in AIR 1989 SC 860, wherein the consumed floor area in excess of the allowable floor area was saved from demolition by observing that in the absence of any evidence of public safety being, in any manner, endangered or the public or a section of the public being, in any manner, inconvenienced by reason of such unauthorized construction, the illegal construction should not be directed to be demolished but after giving anxious consideration to the said judgment of the Hon''ble Supreme Court, this Court finds that in the said case the extent of illegal construction was only 742 sq. feet out of the total constructed area of 45974 odd sq. feet. Thus, the Hon''ble Supreme Court found that the area of deviation beyond the permissible compoundable limit was very minor and negligible. The Hon''ble Supreme Court also found that when there was no evidence of public safety being, in any manner, endangered or the public or a section of a public being, in any manner, inconvenienced by reason of such unauthorized construction, such unauthorized construction cannot be directed to be demolished particularly when there was no evidence, whatsoever of dishonesty or fraud or negligence on the part of the builder.
Even the Full Bench decision of this Hon''ble Court which was cited by Mr. Ghosh is distinguishable in the facts of the instant case as that was a case where only the tiled shed roof on the staircase was replaced by a concrete roof by raising the walls slightly but in the present case, the extent of such construction is not so negligible and that apart giving additional load on such an old building in a congested area of the city, is not at all desirable as the possibility of accident cannot be ruled out entirely by taking note of the violation of various provisions of the Building Rules, made by the petitioner in the instant case.
Thus, this Court holds that the principle which was laid down by the Hon''ble Supreme Court and/or the Full Bench of this Court in those decisions, cannot be applied in the instant case and the portion which was directed to be demolished cannot be saved by relaxing the Building Rules in the present case as the Municipal authority expressed its inability to ascertain the structural strength of the said old building on which such additional load was given by such additional construction. The findings regarding the instability of such building and/or its retention capacity of the additional load as held by the Municipal authority remains uncontroverted. As such, this Court holds that this is not a fit and proper case where the discretion exercised by the Municipal authority against retention of such unauthorized construction, needs interference. This Conclusion is arrived at by this Court by relying upon the following subsequent decisions of the Hon''ble Supreme Court:
(i) In the case of Royal Parasdise Hotel (P) Ltd. Vs. State of Haryana and Others,
(ii) In the case of State of Rajasthan and Another Vs. H.V. Hotels Pvt. Ltd. and Another,
(iii) In the case of M.I. Builders Pvt. Ltd. Vs. Sadhey Shyam Sahu & Ors. Reported in (1999) 6 supreme court cases 464.
Wherein it was uniformly held that power of exemption is not to be exercised freely as exercise of such power to relax a Building Rule, Regulation or Requirement is an exception to the Rule and it is to be used with caution and to justify or condone minimum bonafide, violation or deviation. It was further held therein that no authority administering municipal laws can encourage such violation and in cases where violations are deliberate, designed, reckless or motivated, compounding of such unauthorized construction should not be done. It was further held therein that only marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of law can alone qualify for regularization which is not the Rule, but a rare exception.
Thus, if the aforesaid principle of law is applied in the instant case this Court has no hesitation to hold that the portion which was directed to be demolished by the Special Officer (Building), and was confirmed in appeal by the Appellate Forum, cannot be saved as claimed by the petitioner in the instant writ petition.
The writ petition, thus, deserves no merit for consideration. The writ petition, thus, stands rejected. Time for removing the unauthorized construction as per the direction of the Special Officer (Building) which was confirmed by the Appellate Authority, by the petitioner is extended for a period of four weeks from date failing which the Municipal Authority will demolish the same and realise the cost of such demolition from the petitioner as per law.
The writ petition is, thus, disposed of. Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.