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2017 DIGILAW 453 (CAL)

Abdul Salam v. State of West Bengal

2017-05-05

HARISH TANDON

body2017
JUDGMENT : Harish Tandon, J. It is really an unfortunate state of affairs that a perpetrator of wrong has constructed two additional storeys at the premises and suffers an order of demolition and after the demolition is carried out, the demolished portion was restored to its original position with an intention to create a third party interest therein and invite a cumbersome situation. 2. The petitioner who is an occupant in the ground floor have filed the instant writ petition seeking implementation of the order of demolition which was partially carried out and the private respondents have mended the holes destroying the remnants of the partial demolition. 3. The purpose for recording the word 'partial' in the impugned order is necessary for occasion of the Corporation in carrying out the demolition of the unauthorised and illegal construction. It is uniformly submitted before the Court that the order of demolition passed by the competent authority is carried out by making the holes on the roof and the floor so as to render unusable and uninhabitable. But the unauthorised construction remains and a person like the private respondents in the instant case have no difficulty in restoring back the position ante by filling up the holes and mending other cracks which has developed because of such partial demolition. At the time of hearing on the last occasion when this Court was apprised of the aforesaid facts a report was sought from the Executive Engineer (Civil), Building Department. The report reflects the practical difficulties in carrying out the order of demolition in its true sprit because of the occupancy at the premises and to avoid any casualty which may happen during the full demolition, it is suggested in the report that unless the occupants of the first floor and the ground floor vacate their respective portions at least during the demolition period the full demolition would not be possible. Preciously for such reason this Court directed the concerned officer of the Ekbalpur Police Station to ensure the presence of the private respondents before this Court. 4. The private respondents are represented. This Court asked the learned Advocate representing the private respondents to apprise the Court whether the construction of two additional storeys upon the ground and first floor have been done after obtaining the sanctioned building plan from the Kolkata Municipal Corporation. 4. The private respondents are represented. This Court asked the learned Advocate representing the private respondents to apprise the Court whether the construction of two additional storeys upon the ground and first floor have been done after obtaining the sanctioned building plan from the Kolkata Municipal Corporation. The learned Advocate shows his inability to answer such query in affirmative. The way the submission is advanced on behalf of the private respondents leaves no manner of doubt that there is no permission or sanction granted by the Corporation for raising the two additional storeys above the first floor at the said premises. 5. Apart from the same, it is undisputed that a provision under Section 400 (1) of the Kolkata Municipal Corporation Act, 1980 was initiated against the private respondents by the Municipal Commissioner which culminated into an order of demolition. Though the demolition was carried out in terms of the said order but in the manner as indicated hereinbefore. It would be given a premium to such disgruntled violators of the law if on each occasion when he restores the demolished portion a separate proceeding has to be initiated and the said person will get a fresh lease of life by forestalling and/or delaying the said proceeding and suffer the same consequence as before. It will be an unending exercise as the restoration does not burden the pocket of such person substantially. 6. In case of Deepak Kumar Mukherjee v. Kolkata Municipal Commissioner reported at (2013) 5 SCC 336 the Apex Court judicially noticed the menace of illegal and unauthorised construction mushrooming mostly in a metropolitan cities in these words: "2. In the last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasised the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions as in K. Ramadas Shenoy v. Town Municipal Council, Udipi, Virender Gaur v. State of Haryana, Pleasant Stay Hotel v. Palani Hills Conservation Council, Cantonment Board, Jabalpur v. S.N. Awasthi, Pratibha Coop. Housing Society Ltd. v. State of Maharashtra, G.N. Khajuria v. DDA, Manju Bhatia v. NDMC, M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, Friends Colony Development Committee v. State of Orissa, Shanti Sports Club v. Union of India and Priyanka Estates International (P) Ltd. v. State of Assam." 7. In paragraph 9 of the said decision, the Apex Court have categorically observed that there should not be any judicial tolerance to such illegal and unauthorised construction and the law should not be treated to be subservient to such wrong doers or violators of law. It is apt to quote the observations recorded in paragraph 9 of the said judgment which reads thus: "9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorised constructions by those who treat the law to be their subservient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short "the Corporation") have been extremely vigilant and taken steps for enforcing the provisions of the Calcutta Municipal Corporation Act, 1980 (for short "the 1980 Act") and the Rules framed thereunder for demolition of illegal construction raised by Respondent 7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared." 8. There is no doubt in my mind that the Court should not tolerate and give its blessings to the perpetrator of wrong in issuing the direction upon the Municipal Commissioner to embark a fresh journey under sub-section (1) of Section 400 of the Act and a de novo trial is required to be made. 9. It is a trite law that the order-be judicial, quasi-judicial or administrative should be implemented with full force and rigour without leaving any clue capable of being misused and abused and to bring the position as it stood before the order of demolition. 10. This is what actually happens in this case and the private respondents have taken advantage of the partial demolition by the Calcutta Municipal Corporation by digging holes on different portions of the property leaving the other constructions to stand and taking advantage thereof the private respondents have restored the structure as it stood before the demolition. 11. 10. This is what actually happens in this case and the private respondents have taken advantage of the partial demolition by the Calcutta Municipal Corporation by digging holes on different portions of the property leaving the other constructions to stand and taking advantage thereof the private respondents have restored the structure as it stood before the demolition. 11. This Court therefore has no hesitation to issue a direction upon the Municipal Commissioner to take immediate steps for demolition of the two unauthorised additional storeys completely and fully and not in the manner as so done before. However, this Court cannot overlook the apprehension shown by the Executive Engineer (Civil) in the said report that the complete demolition of the additional two storeys may affect the structural stability of the ground floor and the first floor which appears to have been constructed on the basis of a sanctioned plan. Though the report further indicates that the construction on the ground floor and the first floor is also unauthorised and illegal having done in deviation of the sanctioned plan but this Court finds that no proceeding was initiated in this regard by the Municipal Commissioner and the earlier proceeding was restricted on the construction of the two additional storeys above the first floor. 12. It is open to the Municipal Commissioner to take appropriate steps in accordance with law in this regard and none of the observations recorded here-in-above shall be construed to have any impact thereupon. This Court feels necessary to record the observations from the noting made by the competent authority for taking suitable steps against the private respondents. It appears from the said noting that the authority have recorded that the construction on the ground and first floor have been made illegally in deviation of a sanctioned plan dated August 30, 2006. 13. The aforesaid expressions are used though loosely but with definite intention. The authorities have treated the construction of two additional storeys as there was a sanctioned plan for construction of G+1 storied building. If any larger areas are constructed which is not shown in the sanctioned building plan, such construction may be treated as illegal in deviation of the sanctioned plan. Precisely for such reason the officer has made the noting that the two G+1 storeys are in deviation of a sanctioned plan meaning thereby that those are beyond the periphery thereof. If any larger areas are constructed which is not shown in the sanctioned building plan, such construction may be treated as illegal in deviation of the sanctioned plan. Precisely for such reason the officer has made the noting that the two G+1 storeys are in deviation of a sanctioned plan meaning thereby that those are beyond the periphery thereof. This Court therefore does not find that the expression used in the office note creates any confusion in my mind. 14. Taking the overall view of the matter and all the observations recorded here-in-above, this Court directs the Municipal Commissioner to take immediate steps for demolition of the two additional storeys i.e. the second and the third floor completely and fully leaving no sign of the impugned structure except the columns as it may impair the structural stability to some extent. 15. Since the complete demolition may cause damage to the roof of the first floor or the other structure, this Court directs the occupants of the first floor and the ground floor to temporarily vacate their respective occupations which shall not exceed beyond seven days from the date of notice issued by the Municipal Commissioner in this regard. Such notice shall indicate the date and time for commencement of the demolition work and it is expected that the said notice would be issued within three days from the date of communication of this order. After the completion of the demolition work within the time indicated here-in-above the Municipal Commissioner shall cause the other portion of the building inspected by the responsible officer in order to find out the structural stability thereof and shall submit a report after the said authority affirmed the same to be fit for occupation. It goes without saying that the Municipal Commissioner shall ensure that all care and protection are taken at the time of demolition so that the structural stability of the ground and the first floor thereof is not impaired in any manner. 16. The costs for demolition shall be intimated to the owner of the said property and the Corporation shall be at liberty to realise the same as property tax. 17. 16. The costs for demolition shall be intimated to the owner of the said property and the Corporation shall be at liberty to realise the same as property tax. 17. The officer-in-charge of the Ekbalpur Police Station shall provide adequate police protection to the officer of the employees of the Calcutta Municipal Corporation during the entire period of demolition and shall also depute the police officers day and night so that no person would be able to circumvent the order in any manner whatsoever. The officer-in-charge is at liberty to seek the opinion of their higher officials for the additional force as deemed necessary. It is made clear that if any obstacles or disturbances are caused in implementing the order as indicated above the police authorities are free to take steps to ensure the peace and tranquility during the entire execution of the demolition work. 18. The writ petition is, thus, disposed of. No costs.