Soumitra Pal, J.@mdashIn this writ petition the petitioners have challenged the order dated 14th February, 2014 passed by the Municipal Building Tribunal affirming the order dated 15th November, 2011 passed by the Special Officer (Building), Kolkata Municipal Corporation, directing demolition of the construction, - a portico, - found to have been raised unauthorisedly. Mr. Prabal Kumar Mukherjee, learned advocate appearing on behalf of the petitioner, relying on the writ petition submitted that as the construction was completed in the year 1982, that is when the Calcutta Municipal Act, 1951 (for short ''1951 Act'') was in force, since section 414(4) of the 1951 Act prohibits the authorities to take action against a construction unlawfully completed more than twelve years before the issue of notice under sub-section (1) and as proceedings were initiated in 2006 upon a complaint and as a consequence the petitioner had acquired a right under the 1951 Act, the order dated 15th November, 2011 passed by the Special Officer (Building) in Demolition Case No. 34- D/2006-2007, Borough VII and the order dated 14th February, 2014 passed by the Municipal Building Tribunal in Appeal No. 19 of 2012, are arbitrary and illegal.
2. Mr. Barin Banerjee, learned advocate for the Kolkata Municipal Corporation submitted, since the petitioner neither produced any sanctioned plan nor in the reply to the show cause notice had stated that it was constructed prior to 1982, the order of demolition is just and proper.
3. Mr. Amitava Das, learned advocate for the private respondent No. 6, that is the complainant, adopting the argument made on behalf of the Corporation and referring to section 635A of the Kolkata Municipal Corporation Act, 1980 (''1980 Act'' for short) submitted since with the enactment of the 1980 Act on 4th January, 1984, section 414 of the 1951 Act stood repealed and as the petitioner failed to furnish any document to demonstrate that construction was carried out prior to 1982, the order of demolition is in accordance with law.
4. The short questions are: i) whether the construction was raised prior to 1982 and ii) As it has been stated in the writ petition that the construction did not offend any structural stability of the building, whether, as prayed for, it can be retained or regularized under the 1980 Act.
5. In order to answer the first question it is appropriate to set out the relevant portion of section 414 of the 1951 Act, which is as under:-
"414. Demolition or alteration of building work unlawfully commenced, carried on or completed.- If the Commissioner is satisfied-
(i) that the erection of any building-
(a) has been commenced without obtaining any permission required to be obtained by or under this Act, or
(b) is being carried on or has been completed otherwise than in accordance with the particulars on which such permission was based, or
(c) is being carried on or has been completed in breach of any provision contained in this Act or in any rules or by-laws made thereunder or, of any direction or requisition lawfully given or made under this Act or under such rules or by-laws, or
(ii) that any alteration of, or addition to, any building or any other work made or done for any purpose in, to or upon any building, has been commenced or is being carried on or has been completed in breach of, or otherwise than in accordance with, any sanction granted under section 387 in contravention of the provisions of section 396 or 397, or
(iii) that any alteration required by any notice issued under rule 22 of Schedule XVI has not been duly made,
he may, without prejudice to any action that may be taken under any other provision of this Act, by written notice require the person responsible to demolish such erection, alteration, addition or other work or to make the alteration, as the case may be, or to show cause why such erection, alteration, addition or other work should not be demolished or the alteration should not be made.
(2) ...........
(3) ............
(4) Notwithstanding anything contained in the foregoing sub-sections, no action shall be taken under this section in respect of any erection, alteration, addition or other work executed more than twelve years before the issue of the notice under sub-section
(1)
Provided that the onus of proving that the work was done more than twelve years previously shall lie on the person responsible.
(5) ........"
(Emphasis supplied)
6. As seen, though under section 414 of the 1951 Act onus is on the person responsible to prove that the construction was executed more than twelve years before the issue of notice under sub-section (1), in the instant case though it was the duty of the petitioner to prove that such construction was made prior to 1982, however, before the Special Officer, the petitioner neither produced any sanctioned plan nor produced any contemporaneous document in support of his case. Therefore, the findings of the Special Officer in the order dated 15th November, 2011 that "Ps.R. though claimed said portico was constructed at the time of construction of the building in question but to substantiate that part of his contention he failed to produce any documents." or "Above all it is not denied by the Ps.R. that they constructed the impugned portico and that was constructed unauthorisedly.", is just and proper. Similarly the finding by the Tribunal in its order dated 14th February, 2014 that "It is not in dispute that the construction of portico was made subsequent to the construction of E-F block in the year 1982." has not been disputed. Hence, in my view, the petitioners have failed to make out a case that the construction was raised prior to 1982.
7. In order to answer the second question, it is appropriate to refer to sections 392, 393 and 413A of the 1980 Act, section 392 is as under:-
"392. Prohibition of building without sanction. - No person shall erect or commence to erect any building or execute any of the works specified in section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation to such erection of building or execution of work."
Section 393 is as follows:-
"393. Erection of building.- Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form together with such fees including Drainage Development fee and containing such information as may be prescribed:
Provided that the Corporation may also levy fees under this section with retrospective effect."
The relevant portion of Section 413''A is extracted hereunder:-
"413A. Regularization of buildings in certain cases.- (1) Notwithstanding anything contained in this chapter or elsewhere in this Act, all buildings, the construction of which by the persons displaced from East Pakistan (now Bangladesh) or by their successors-in-interest on lands occupied by such persons have been completed on or before the commencement of the Calcutta Municipal Corporation (Amendment) Act, 1996, and where the documents of title to such lands have been granted by the State Government, shall be regularized by the Municipal Commissioner under this Chapter, subject to payment of the requisite fees and charges and on submission of application in the prescribed form along with the plan for each such building:
Provided that such regularization shall be made only in the cases where the constructions have been completed in conformity with the existing building rules of the Corporation:
Provided further that in the cases where the buildings have been completed not in conformity with the existing building rules of the Corporation, in the appropriate cases the Municipal Commissioner, in relaxation of such building rules, shall be competent to regularize such building....."
8. It is clear from a reading of section 392 of the 1980 Act, it creates an absolute bar to erecting a building without sanction. The words "No person shall erect or commence to erect any building or execute any of the works specified in section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation to such erection of building or execution of work" leave no manner of doubt in that regard. The position of law is made clear as section 393 makes it mandatory that every person who intends to erect a building "shall" have to apply for sanction by giving notice to the Municipal Commissioner in such form along with such fees and information as may be prescribed. So on a reading of section 393 it is clear that one cannot raise a building without making a prior application for sanction for raising a building. The language of sections 392 and 393 is clear, specific and unambiguous. As the provisions are mandatory, any breach may call for initiation of proceedings under section 400 of the 1980 Act. In this regard it is appropriate to refer to section 413A of the 1980 Act which permits regularization of construction made by persons displaced from East Pakistan (now Bangladesh) subject to certain conditions. The opening words in section 413A that "Notwithstanding anything contained in this chapter or elsewhere in this Act....." make it clear that save and except in cases falling under the said provision, construction made in breach of sections 392 and 393 are liable to face proceedings under section 400 of the 1980 Act. The argument on behalf of the petitioner that section 400 of the 1980 Act confers discretion on the Municipal Commissioner to regularize a construction erected illegally, be it minor or major, is not tenable as Rule 3(2) of the Kolkata Municipal Corporation Building Rules, 2009 specifically mentions about such erection, re-erection, addition or alteration where sanction of the Municipal Commissioner is not required. Therefore, barring such construction as enumerated under Rule 3(2), in other cases prior sanction of the Municipal Commissioner is mandatory. Any deviation from the statutory provisions shall open an avenue where a person may raise a construction and then seek post facto sanction which is not the statutory scheme under the 1980 Act. In that case it shall render sections 392 and 393 otiose. Hence, the prayer of the petitioner for retention or regularization of the construction cannot be accepted. Therefore, the writ petition is dismissed. Accordingly, the Kolkata Municipal Cooperation is directed to implement the order dated 15th November, 2011 passed by the Special Officer (Building), Kolkata Municipal Corporation within eight weeks from the dated of presentation of a copy of the certified copy of this order. No order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the appearing parties on priority basis.
