27 Aug 2023 4:30 AM GMT
The Calcutta High Court recently upheld a demolition order by the Kolkata Municipal Council (“KMC”) issued under Section 400(8) of the KMC Act against an unauthorised construction made by the petitioner who had ignored previous ‘stop-work’ notices and even an FIR filed by KMC in that regard.A division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Rayand expressed...
The Calcutta High Court recently upheld a demolition order by the Kolkata Municipal Council (“KMC”) issued under Section 400(8) of the KMC Act against an unauthorised construction made by the petitioner who had ignored previous ‘stop-work’ notices and even an FIR filed by KMC in that regard.
A division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Rayand expressed its objections on the extent of illegal constructions being initiated within the jurisdiction of the KMC without their immediate intervention.
"When a stop work notice was issued from the side of the KMC, the person responsible should have stopped the construction work and approached the KMC authority. Admittedly he was carrying on the construction without sanctioned plan in violation of the provisions as laid down in Sections 392 and 393 of the KMC Act. If the person responsible thinks that whatever be the nature and extent of his erection work, he can raise construction defying the stop work notice and defying the allegations made against him in the FIR only because that there are certain beneficial provisions for regularizing unauthorized constructions, he has committed a grave mistake and the KMC authority certainly has powers to demolish the unauthorized structure…in societal interest…even without giving him any opportunity of hearing."
It was argued by the petitioner, that he had been deprived an opportunity of hearing by the KMC, who had proceeded to take steps u/s 400(8) without letting him present his case before the Special Officer (Building) of the KMC.
The petitioner submitted that KMC had the authority to regularised certain unauthorised constructions and that although a stop-work notice had been issued, no steps were taken u/s 400(1) for a hearing on the regularisation of the alleged deviation.
The petitioners argued that the mayor-in-council of the KMC who passed the demolition order did so by ‘stereotyping’ the petitioner’s case with other similar cases without looking into the factual differences, due to a lack of hearing u/s 400(8).
Counsel for the KMC argued that if “massive unauthorised constructions” are detected, then the mayor-in-council can undertake the process u/s 400(8), and that a decision for demolition could not be equated with immediate demolition forthwith. It was further argued that the similarities between the 400(8) order against the petitioner, and those issued in other cases, were only due to the illegality committed through the impugned un-sanctioned constructions being identical and similar in nature.
It was submitted that except minor unauthorised construction work, which may be allowed to be retained in exceptional cases, all other unauthorised constructions must be dealt with u/s 400(8) of the KMC Act.
KMC argued that the petitioner cannot pray for a writ of mandamus, since he had not acquired any rights over a property created unauthorisedly, and that the Court could only exercise very limited judicial review over the decision made u/s 400(8), since no enforceable legal right of the petitioner had been infringed in the present case.
Upon hearing both parties, the Court looked at the relevant sections within the KMC Act, and held that the petitioner’s argument that the KMC could have provided him a hearing for regularisation of his “massive” unauthorised construction was unsustainable, since such an exception could only be made for a “minor deviation from the sanctioned plan.”
"Needless to mention that unauthorized construction has become a menace to our civilized society and the extent and magnitude of such unauthorized construction in every nook and corner of our country has reached an alarming proportion. The society has certainly a right against citizens; not to make any unauthorized construction, since it militates against the planned development, environmental issues and so on. As a custodian of societal interest, the municipal authorities have been empowered by the municipal laws to see and check that no such unauthorized construction is made under their respective jurisdiction so that societal interest can be preserved for the sake of the public at large."
Accordingly, the demolition order was upheld, and the appeal was dismissed with costs of Rs 50,000 payable to the KMC.
Upon passing the judgement, and in refrain, the Bench expressed reservations over the nature and extend of illegal constructions coming up within the jurisdiction of the KMC, whose duty it was to “nip such illegal constructions in the bud,” and questioned whether the KMC had been failing in discharging its statutory functions.
In framing five pointed queries to be answered by the Commissioner, KMC, pertaining to ‘illegal constructions of significant proportions being allowed to be made before any action is taken’, the Bench disposed of the plea, directing a report answering its queries to be placed before the Registrar (Original side) within 8 weeks from date.
The Court added that the gradual emergence of substantial unauthorized constructions prompts questioning about the KMC's efficacy in preventing such activities.
“Obviously, such constructions do not come up overnight or within a short span of time. A question naturally arises as to how unauthorized constructions to considerable extents are raised when it is the duty and obligation of KMC to ensure that illegal constructions are nipped in the bud? Is KMC failing to discharge its statutory functions in right earnest? There are officers in KMC who are assigned the duty of keeping vigil over constructions being made within the territorial limits of KMC and the report to the competent authority if they find any unauthorized construction. The fact that illegal constructions of significant proportions are allowed to be made, before any action is taken, if at all, raises a reasonable doubt in our mind as to the sincerity, efficiency, competence and even integrity of the concerned officers/employees of KMC who are responsible for detecting unauthorized constructions and taking prompt action in respect thereof, in accordance with law.”
Case: Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors.
Coram: Justice Arijit Banerjee and Justice Apurba Sinha Ray
Citation: 2023 LiveLaw (Cal) 238
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