Kalpana Debbarma vs Agartala Municipal Corporation And Ors.

Heard Mr. D.K. Biswas and Mr. S. Lodh, learned counsel appearing for the petitioner as well as Mr. K.K. Pal, learned standing counsel appearing for the respondents No, 1 & 2, Agartala Municipal Corporation and Mr. P. Saha, learned counsel appearing for the respondent No.3.

The respondent No.3 filed a complaint against the construction being carried out by the petitioner on 07.07.2014. Admittedly, the construction was completed in the year 2002. There was deviation in keeping the space from the boundary of the respondent No.2 who purchased his plot in the year 1998. The disputed construction came up when he was residing there but before 07.07.2014, the respondent No.3 observed complete silence about such deviation. When the respondent No.3 started constructing a building there arose a dispute regarding the ownership of the pathway and in respect of the space from the boundary of the petitioner. The petitioner raised serious objection to Agartala Municipal Corporation. It is also not disputed that the said complaint was filed thereafter. Apparently, it is the counterblast to the complaint filed by the petitioner against the respondent No.3.

Be that as it may, this court had intervened in various phases to unearth the truth and finally, by the additional affidavit filed on 09.02.2017, the Municipal Corporation-respondent has recorded their observation in the order dated 06.01.2017, by which Agartala Municipal Corporation was asked to resurvey the construction and to find out the deviation and to ascertain whether the construction of the said building was being carried out in terms of the sanctioned planned.

According to the Municipal Corporation, their team visited and inspected the building and during inspection by their expert team, they found as under :

"i) Toilet of 1.325 mtr. x 3.45 mtr. (4.571 sqm.) is built on the north side of the building without approval. It is instructed to demolish this toilet block and owner has given consent to demolish the same by 06.02.2017.

ii) Deviations in side spaces are very minor.

iii) There is some projections within normal limits being used as room area.

iv) About 68.00 sqm. of floor area at 2nd floor has been told to be demolished. In this regard the owner has produced one receipt of application for approval of construction of 2nd floor on dated 17.11.2007 vides no. 605/HC in support of assuming deemed approval. "

They have also filed the inspection report dated 31.01.2017 [Annexure R/6 to the additional affidavit]. Their observation has been made quite scientifically. In Column-7 and 8, they have compared between the space as per the sanctioned plan and the space as is available after the execution. It shows that so far the northern and southern boundaries are concerned, as per plan the space should have been left 0.762 mtr. but after execution it is found to be 0.81 mtr, meaning it is more than the plan. In the west it is 1.22 mtr. but in the west it is 1.13 mtr. The minimum space to be left according to the statute is 1.12 mtr. Therefore, there is no dispute regarding the space left by the petitioner on north, south and west boundaries.

So far the dispute relating to the eastern boundary is concerned, Mr. S. Lodh, learned counsel appearing for the petitioner has submitted that the previous owner, from whom the respondent No.3 had purchased the land, had issued the no-objection certificate even though the petitioner kept less space in comparison to the statutory requirement in the eastern side. While according the sanction the Municipal Authority, raised no objection and allowed the petitioner to keep 0.762 mtr. on the eastern boundary. But the petitioner had kept 0.81 mtr. i.e. more than what is provided in the plan. Therefore, there is no basis of filing the complaint by the respondent No.3. But the respondent No.3 has now made an expedition on the earlier report. Since the subsequent report has been prepared as per direction of this court by an expert team, this report shall supersede the earlier report. However, the respondent No.3 has filed an elaborate written objection against the said report on 23.02.2017. In Para-2 of the said objection the respondent No.3 has stated as under :

"2. I state that I had made complaint to the Agartala Municipality on 7.7.2014 with a prayer for taking action against illegal construction of building by Smt. Kalpana Debbarma. In the complaint I specifically stated interalia that Smt. Kalpana Debbarma has not kept minimum space from her eastern boundary but the report annexed with the additional Affidavit shows that the side space on the east of the building of Smt. Kalpana Debbarma is 2'5". However, the earlier re port of the same A.M.C. dated 8.9.2014 shows that the eastern side space is 2'3", 2'8", 2'6". The Bengal Municipal Rules 1932 was in force in Agartala until the Tripura Building Rules 2004 came into effect. According to Bengal Municipal Rules the side space for construction of building was prescribed to be "1.22 meters, if there is an open space of 60.96 centimeters or more on either side of such boundary line". Tripura Building Rules 2004 requires minimum open side space 1.20 meters if the height of the Building upto 11 meters and if the height of the building is above 11 meters but less than 14 meters then the minimum side open space at ground level is 1.50 meters. It is because the report of the A.M.C. annexed with the additional affidavit was prepared without prior intimation to me and in my absence as otherwise I could have pointed out the mistakes committed in the report. The reports seems to be tailored to suit the purpose of Smt. Kalpana Debbarma and as such it is biased report made keeping me in the dark which needs to be cancelled and the A.M.C. may be directed to make re-investigation with prior notice to me and in my presence. The inspection report regarding measurement may be directed to be prepared in my presence and to obtain my signature in every page of the measurement record."

Having regard to this objection and the approved plan of Agartala Municipal Corporation permitting the petitioner to leave a lesser space then the prescribed space, this court is of the view that now no action can be taken on the purported deviation. But so far the construction on the second floor is concerned, that is admittedly has been carried out without any sanctioned plan. For that reason, the petitioner has taken a plea of deemed approval as the petitioner had submitted the plan on 17.11.2007.

Be that as it may, the Municipality has every right notwithstanding the deeming fiction as incorporated for sanction of the plan to see whether that plan was prepared in conformity to the prescribed rules. There cannot be any application of the deeming fiction if it is found that the plan that was prepared was not in conformity to the rule. No deeming fiction can be applied against a plan which is completely in contravention of the provisions of rule. The deeming fiction would operate when the plan had been filed in conformity to the provisions of law. In this backdrop, Agartala Municipal Corporation is directed to have a fresh look in the entire matter in terms of the plan that was submitted on 17.11.2007. Apparently, from the report this court has gathered that the petitioner co-operated with Agartala Municipal Corporation and Mr. K.K. Pal, learned standing counsel appearing for the Agartala Municipal Corporation has fairly submitted that the deviation pointed out by the expert committee has mostly removed by the petitioner. As the plan was not formally sanctioned, if it is found that the deviation is not substantive in nature, Agartala Municipal Corporation may by following the due process of law condone such deviation and allow the petitioner to complete the construction. Such exercise as indicated shall be completed by Agartala Municipal Corporation within a period of 3(three) months from the day when the petitioner shall furnish a copy of this order.

In terms of the above, the writ petition is allowed. There shall be no order as to costs.