Titas Enclave Private Limited & Anr vs Kolkata Municipal Corporation & Ors

Arindam Sinha, J

The Court:-By this writ petition petitioners have sought issuance of mandamus restraining Kolkata Municipal Corporation from taking coercive action

for demolition of alleged un-authorised construction without initiation of proceedings under section 400(1) in Kolkata Municipal Act, 1980. Mr. Subrata

Das, learned advocate appears on behalf of petitioners and draws attention to order dated 14th August, 2019 made by co-ordinate Bench disposing of

writ petition being WP 206 of 2019 (Shahid Hussain Vs. The State of West Bengal & Ors.), in which following direction was made :-

“After perusing this report, I direct the Kolkata Municipal Corporation to initiate appropriate proceedings in accordance with law for demolition of

the unauthorised construction of the two additional floors beyond the sanctioned plan in respect of the premises in question without any further delay

but positively within three months from date.â€​

Mr.Chatterjee, learned advocate appears on behalf of the Corporation and submits, this writ petition is by another, though in respect of same premises,

in which un-authorised construction is being carried out in respect of stop work notice dated 19th February, 2015 issued. He hands up agenda for

Mayor-in-Council meeting and resolution, appearing to be of 8th August, 2019.

The agenda and resolution are reproduced below:-

“This is a case of un-authorized construction of RCC column beam, roof at the 4th and 5th floor and covering up of mandatory open space at all

sides form 1st to 5th floor without sanction.

Notice u/s 401 was issued on 19/02/2015. Intimation to local P.S. given on 19/02/2015.

Moreover the construction if allowed to stand will create several hazards like Fire hazards and environmental hazards.

Considering the gravity of the situation and safety of Public in general, department recommends demolition of unauthorized structure forthwith under

section 400(8) of K.M. C. ACT 1980.

The matter is placed before M.I.C Meeting for approval.

Resolved in the MIC dt- Considering the facts & circumstances as stated above in the departmental report and upon due consideration of other

relevant issues, it is resolved that since the Person Responsible continued with un-authorized construction as indicated in the precis of the agenda item

in spite of departmental action for stoppage of such unauthorized construction and since such unauthorized construction is unsafe and may lead to

accident resulting in loss of Human Life and property, appropriate action towards demolition of such unauthorized construction be taken forthwith

under section 400(8) of K.M.C. Act 1980 with the help of local administration.â€​

On query from Court Mr. Chatterjee submits, it is true that direction in said order dated 14th August, 2019 was made in respect of the same premises

and un-authorised construction. He draws attention to page 52, appearing to be a note prepared for purpose of adjudication of said writ petition, from

which extract was made and quoted in said order. The extract quoted is reproduced below :-

 “Accordingly, this department has prepared D-sketch plan along with infringement statement as per present status of the premises has been

placed before the higher authority to initiate proceedings under suitable sub Section of U/Section 400 of the KMC Act, 1980.â€​

He submits, the direction must be read in context of the extract, as saving immediate action recommended and resolved to be taken in respect of the

un- authorised construction, under sub-section (8) in section 400. This power of the Corporation was noticed and reserved for exercise by co-ordinate

Bench in making said order.

Court is unable to accept submission made on behalf of the Corporation.

The recommendation and resolution appears to have happened on 8th /9th August, 2019. Direction made in said order, quoted above, cannot be seen

as in context of immediate action to be taken thereafter. Recommendation and resolution for immediate action already happened before passing of the

order.

If the Corporation did not take co-ordinate Bench into confidence, the omission has visited it now. Perusal of the direction reproduced above will show

that it was for initiation of appropriate proceeding, without any further delay but positively within three months form date. This would exclude the

Corporation having already had resorted to exercise of its power under sub-section (8) of section 400.

The writ petition succeeds. There will be order in terms of prayer [a]. It is disposed of.