Bimal Saha vs Agartala Municipal Corporation And Others

[1] Petitioner is the builder owner of a five storied building called Ujjala Enterprise situated in city of Agartala. The petitioner has challenged a notice of demolition of part of this building issued by the Commissioner of Municipality on 23.05.2016.

[2] Brief facts are as under :

The petitioner claims to have completed construction of five storied building in the year 1995 with full permissions and sanctioned plans from the Municipal Corporation. A Public Interest Petition No.10 of 2015 was entertained by the High Court which concerned the illegal construction and other lack of safety measures in specified high-rise buildings in the city. In one of the orders passed in the said PIL on 06.10.2015, the Court made following observations:

"In the first order, we had made it clear that the scope of this Writ is not limited to these 3 Malls. We, therefore, direct the Commissioner to submit a report to this Court by the next date with regard to all the Building which are 5 storied or above in the town of Agartala which are being used for commercial purpose. For all these commercial building, the Commissioner, Agartala Municipal Corporation after visiting the buildings shall submit his report on the same lines as have been passed with regard to Aitorma Agartala Sentrum and ML Plaza."

[3] These observations and directions activated the Municipal Corporation into examining legalities of various buildings in the city, one of them being Ujjala Enterprise. The Commissioner issued notices to the petitioner for production of original plans passed by the Municipal authorities. The petitioner could not produce the same claiming that he has lost the original plan. He instead, produced copies of two communications dated 16.05.1994 and 27.09.1995 issued by the Assessor of the Municipality to contend that the plans were passed and the construction was carried out according to such plans. The Commissioner, however, did not accept this version of the petitioner and passed the impugned order providing for demolition of two floors of the said building. Relevant portion of this order reads as under :

"On 16.01.2016 and 28.01.2016 notices were issued for submission of copy of sanctioned building plan.

On 05.04.2016 show-cause notice was issued from the Agartala Municipal Corporation as to why the demolition order should not be passed as the owner of the building has built five storied building without approved plan.

On 23.05.2016 an opportunity was given for hearing either personally or authorized representatives and also for submission of relevant documents.

The stand taken by the owner of building namely Sri Bimal Saha that after searching at every possible place, he has failed to trace out the original plan. However, he has submitted order of approved plan dated 16.05.1994 & 27.09.1995. According to him building was not constructed illegally without any approved plan, but the fact is that the approved plan is missing.

It appears from the order dated 16.05.1994 & 27.09.1995 issued by the then Assessor Agartala Municipality that, the authority has approved the plan for construction of 3rd floor over the existing 2nd floor i.e. G+2 building but from the report submitted by the technical team it revealed that the owner has constructed G+4 building.

It is therefore evident that, construction of the additional floors beyond the 3rd floor was in deviation and violation of the sanctioned plan.

Now, therefore, as per the provision of Section 133 of Tripura Municipal Act, 1994, the owner is hereby directed to demolish the additional floors beyond the 3rd floor of building within a period of one month from the receipt of this order, failing which the Asst. Municipal Commissioner Central Zone of AMC is directed to dismantle/demolish the unauthorized construction at the expenses of the owner.

A copy of the order be supplied to the parties free of costs."

[4] In brief thus case of the petitioner is that the entire building of five floors was constructed with building plans passed by the Corporation. The case of the Corporation is that the petitioner failed to produce any document in support of such a claim and in any case the two communications of the year 1994 and 1995 which the petitioner had produced clearly showed that the permission was granted only for construction of three floors (i.e. G+2) where the petitioner had constructed five floors (i.e. G+4). It was in this background the Commissioner ordered demolition of the top two floors of the building.

[5] In the present petition, I have only confined my scrutiny to the question of the building constructed by the petitioner being with or without proper permissions from the Municipal authorities. Neither the Municipal Commissioner has raised issues of other safety measures such as, fire safety, adequate size of lift etc. In the context of the building being according to plans passed by the Municipality the petitioner failed to produce any documents. Only document the petitioner produced showed that he had permission to construct only three floors (i.e. G+2). Admittedly the petitioner has carried out construction of total of five floors G+4.

[6] However, the Commissioner has not examined whether the existing construction is within the permissible limits of total constructed area as per the building bye-laws and can otherwise be regularized. If it is so, surely the petitioner can apply for regularization of such additional construction which even though may have been carried out without sanctioned plans, if the plans can presently be passed if presented by the petitioner, it would be futile to ask the petitioner to remove such construction which is existing since 1995 or thereabouts, then apply for passing of the plans and then permit him to construct the said two floors.

[7] In the result, petition is disposed of with a direction that the petitioner shall approach the Commissioner of Municipality with a request for regularization of the top two floors of the building. If such an application is made within four weeks from today, the same shall be considered in accordance with rules and regulations and to the extent permissible the existing construction may be regularized subject to levying such charges as the policy of the Corporation permits. Till the Commissioner takes a decision on the application of the petitioner, there shall be no demolition of any part of the petitioner's building.

[8] Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.