Dipak Kumar Mukherjee vs Kolkata Mun.Corp.& Ors

11. Mohammad Shahid, (the sole proprietor cum attorney of respondent No.7) entered into an agreement with respondent No.8 for development of plot bearing No.8/1F, Gopal Doctor Road, Kolkata. The building plan submitted by respondent No.7 for construction of two storied building was sanctioned by the Corporation on 11.4.1990 and five years time was given for completing the construction. When the site was inspected by the officers of the Corporation in October, 2009, they found that respondent No.8 had raised unauthorised construction by erecting RCC column upto 3rd floor along with staircase in deviation of the sanctioned plan. Thereupon, stop work notice was issued by the Executive Engineer (Civil), Building under Section 401 of the 1980 Act. However, instead of stopping the construction, respondent No.7 added one more floor. This brazen defiance of law by respondent No.7 led to the issuance of notices dated 15.10.2009 and 10.11.2009 under Sections 400(1) and 401(A) respectively. Simultaneously, a report was submitted by Deputy Chief Engineer (Building) to the Director General (Building) – II, for demolition of the unauthorised construction on the ground that structural stability of the illegal construction was doubtful and existence of the same was dangerous to the lives of the people. The issue was then considered by the Mayor-in- Council on 14.1.2010 and it was decided to demolish the unauthorised construction. Accordingly, about 600 sq. ft. out of the total constructed area measuring 1500 sq. ft. was demolished on 4.2.2010.

12. In the meanwhile, the appellant filed WP No. 23741/2009 in the High Court for issue of a direction to the Corporation to demolish the illegal construction by respondent No.7. The same was disposed of by the learned Single Judge on 3.3.2010 with the direction that the objection raised by the appellant against the unauthorised construction be decided by the competent authority after hearing the affected parties. Simultaneously, it was ordained that no illegal construction be carried out in the premises in question.

16. The appellant filed detailed counter affidavit dated 17.1.2011 reiterating his plea that the construction made by respondent No.7 was illegal. Thereafter, respondent No.8 filed affidavit dated 22.2.2010 and questioned the locus standi of the appellant to file the writ petition. Shri Tapas Chandra and Smt. Asha Devi Shaw, to whom the unauthorised portions of the building are said to have been sold, got themselves impleaded as parties to the appeal filed by respondent No.7. On 1.3.2011, the Division Bench of the High Court suo-motu directed issue of notice under Order 1 Rule 8 of the Code of Civil Procedure and publication thereof in two daily newspapers, one in Bengali and another in English so as to enable other purchasers of the unauthorised portions of the building to present their cause before the Court. The relevant portion of that order reads as under:

j) Pursuant to the directions of the Calcutta High Court, the concerned Executive Engineer gave a hearing on 08.04.2010 to the petitioner and the respondent, M/s. Unique Constructions represented by its Proprietor - Md. Shahid, the person responsible for making unauthorized constructions and on 16.04.2010 the concerned Executive Engineer passed an order and communicated the same to the respective parties. A true copy of the said Order dated 16.04.2010 is annexed as Annexure P-8 (at pages 36-37) of the S.L.P. Paper Book.

k) Thereafter, on the basis of the said order of the Executive Engineer, on 20.07.2010 the concerned Assistant Engineer along with the Sub-Assistant Engineer inspected the said premises and found that the demolished portion of the said building has been repaired by the said person responsible and also found that the said building is full of occupancy.”

28. In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by respondent No.7 is pulled down without delay, we issue the following directions: