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2008 DIGILAW 528 (CAL)

Sandhya Bhar v. Calcutta Municipal Corporation

2008-05-13

L.NARASIMHA REDDY

body2008
Judgment : PRASENJIT MANDAL, J. (1.) THIS application under Article 227 of the constitution of India is directed against the order dated 31st July, 2000 passed by the Building Tribunal, Kolkata Municipal corporation in B. T. Appeal No. 151 of 1987-88 directing the demolition of certain structures with brick walls. (2.) THE fact of the case in short is that the applicant obtained one B. S. Plan dated 11.04.1983 in respect of his premises no. 10, blackquare Square, Calcutta ? 700 006 within the jurisdiction of the Kolkata Municipal Corporation. She started the construction in the month of June, 1983. But, while she was making the construction she made unauthorised constructions in many ways violating the provisions of Rules 18, 20, 39, 40, 5, 19, 8 and 21 of the schedule XVI of the Building Rules and under Section 365 of the Kolkata Municipal Corporation Act, 1980. The Special Officer (Building) after holding hearing directed demolition of the unauthorised constructions. Thereafter the applicant preferred an appeal which was allowed in part asking the applicant to retain certain portion of the unauthorised construction upon payment of costs of Rs. 40,000/-and to demolish the rest portion. Being aggrieved by the said order, this application has been preferred by the applicant. (3.) ON hearing submission of the learned Advocates of both the sides and on perusal of the materials on record, I find that the respondent no. 1 sanctioned the B. S. Plan No. 2 dated 11. 04. 1983 in respect of the premises of the applicant and she started construction in the month of June, 1983, that is, after about three months from the date of sanction of the plan. The applicant was therefore very much aware of the sanctioned plan on the basis of which she was to make construction on a small piece of land measuring about 1? cuttahs. But with utter surprise, I find that that the applicant had made constructions in gross violation of the Rules 18, 20, 39, 40, 5, 19, 8 and 21 of Schedule XVI of the building Rules and Section 365 of the said Act. While she was making construction, objection was raised but the applicant did not pay any heed to such objection and she continued to make construction according to her own peril. While she was making construction, objection was raised but the applicant did not pay any heed to such objection and she continued to make construction according to her own peril. (4.) FROM the materials on record, I find that the applicant made violations of the Building Rules and the said Section in many respects, such as structures in the ground floor and first floor extending over the front open space on the North thereby cutting the road angle. She left no space towards North, East and West side of her premises and a staircase had been constructed from the ground floor up to the second floor covering side space on the east side in place of the original plan for the staircase etc. Upon due hearing, the Special Officer (Building) directed demolition of the structures made in violation of the aforesaid rules but the appellate authority permitted the applicant to retain certain structures in the ground floor and first floor extending over the front open space in the North and the structures in the ground floor and first floor with increased height as described in item nos. 2 and 3 of the precis upon payment of a sum of Rs. 40,000/- inclusive all charges and to demolish the rest unauthorised constructions. The applicant was required to demolish the one storied and another two storied R. C. Roof structures with brick walls at the back space; R. C. Roof structures with brick walls at the third floor and a staircase leading from ground floor up to the second floor level covering the side space in the East. I do not find any illegality in the matter because these constructions are totally unauthorised and are major in nature. The submission of the learned Advocate for the petitioner that such constructions are minor cannot be accepted at all and the Building Tribunal has rightly rejected the said contention giving reasons thereon. (5.) DURING argument, the learned Advocate for the petitioner has referred to a number of decisions such as AIR 1972 Cal 459 , 1977 (2) CLJ 505, AIR 1989 SC 860 and AIR 2007 SC 38 and submitted that when nobody including any neighbour has raised any objection, this Court can allow the applicant to retain the unauthorised construction on payment of costs if required as was done by the building Tribunal in respect of certain items. The applicant purchased a small piece of land and he raised two constructions thereon unauthorisedly not only without leaving any side space at all, back space as required under the said Rules but also encroached the front portion. At the time of making construction, objection was raised by the respondent no. 1 but the applicant did not pay any heed. Thus, I find that the applicant has no regards for law of the land. She had made construction unauthorisedly violating the Building Rules. She had even altered the plan in making the staircase of the building. The learned Advocate for the applicant has also contended that the construction had been done in the year 1983 and it is existing for the last 24 or 25 years and it should not be demolished. Such submission, I hold, cannot be accepted because I find that at the time of raising unauthorised construction the respondent no. 1 raised objection but the applicant did not pay any heed. Thereafter appropriate actions were taken as per law in the year 1986 and since then the matter is pending. Alternatively it can be held that the applicant was able to possess so many major unauthorised constructions during the last 24 or 25 years. The prayer of the learned Advocate for the petitioner to retain possession even on further payment, I hold, cannot be accepted because the applicant had made major unauthorised constructions and altered the plan totally in making the constructions. So she does not deserve any sympathy or further leniency by this Court. (6.) I, therefore, hold that the application is devoid of merits and there is nothing to interfere with the order of Building tribunal. Accordingly, the application is dismissed. (7.) CONSIDERING the circumstances, there will be no order as to costs.