- (1.) In this writ application the petitioners have prayed for a direction on the respondents particularly on the Chairman, Habra Municipality, the respondent no.3 (for short the said respondent) to act in accordance with law and to hand over the original building plan relating to the construction of the second and third floors (hereinafter referred as the additional construction) at premises no. 1/1 Kanchari Para Road, Habra, North 24 Parganas (for short the "said premises") treating it to be as sanctioned since requisite fees have been paid and to withdraw the decision of the said respondent cancelling the Certificate of Enlistment regarding the business carried on by them in the name and style of M/s. Meena Bazar at the said premises since it was passed without their knowledge. Prayer has also been made for a direction upon the Board of Councillors of the Habra Municipality, the respondent no.2, and the said respondent to regularise the construction in excess of permissible floor area ratio for which fine has been paid and to cancel the notices dated 8th October, 2009 and 9th October, 2009 issued by the said respondent. Prayer has been made for a writ in the nature of Certiorari for production of the papers, records and documents.
(2.) The facts as stated in the petition are that the petitioner no.1 stated to be the owner of said premises submitted a site plan for construction of the ground floor and first floor ("G+1" for short) with the municipal authorities which was sanctioned on 6th January, 2009. THEreafter, G+1 construction was made. After completion of the first floor, the petitioner carried out additional construction by constructing the second and the third floor and the chile-kotha admittedly without any sanctioned plan. According to the petitioners, though there might have been minor deviations, the area and the height of the building did not exceed as mentioned in the site plan which could be regularised by payment of fine. Incidentally, on 17th April 2009 the petitioner submitted the site plan for additional construction along with the requisite fees. According to them, for the unauthorised construction the municipal authorities imposed a fine or penalty of Rs. 21,000/- which was deposited on 2nd May, 2009. On 8th May, 2009 the building plan for additional construction was furnished. Fee of Rs. 5,400/- was deposited. It has been stated that the petitioners, who are business partners, started business on the said premises after obtaining Certificate of Enlistment for the year 2009-10 and have been carrying on the business. However, on 21st September, 2009 the petitioners came to learn that on 8th September, 2009 the said respondent had published a notice in a local weekly newspaper cancelling the Certificate of Enlistment as the construction was allegedly made without following the due procedure of law. Being aggrieved by such cancellation, on 23rd September, 2009 a representation was made before the said respondent and prayer was made to hand over the original sanctioned building plan for the additional construction including the chile-kotha. THEreafter, the said respondent issued the impugned notice dated 8th October, 2009 directing the petitioner no.1 to appear on 21st October, 2009 before her regarding the alleged illegal construction. On receiving the said notice, a letter dated 15th October, 2009 was issued on behalf of the petitioner intimating, inter alia, that the actions were illegal, unlawful and were in violation of the principles of natural justice. THE matter was moved on 30th October, 2009 when besides issuing the directions for filing of affidavits, submission of the municipality was also recorded in the order that the Trade Licence though kept in abeyance was not yet cancelled. Pursuant to the directions affidavits have been exchanged and are on record. In course of hearing the learned advocate for the Municipality by an order was directed to produce the records and to give inspection to the petitioner. Records were produced and inspection was given. Photocopies of the relevant documents which were furnished to the petitioner, are also on record. Learned advocate for the petitioner relying on the petition and the affidavit in reply had submitted that in the month of January, 2009 the site plan and the building plan of G + 1 were sanctioned by the authorities of the Habra Municipality. Accordingly, construction was made. Thereafter, the petitioners completed the additional construction. However, on 17th April, 2009 the site plan for the additional construction was furnished. On the same day requisite fees were deposited. On 2nd May, 2009 the municipality also accepted a fine of Rs. 21,000/- for the additional construction. On 4th May, 2009 the site plan for the additional construction was sanctioned. On 8th May, 2009 the building plan for additional construction was furnished along with the fees of Rs. 5,400/-. According to the petitioners since site plan was sanctioned and fine for the unauthorised additional construction was accepted it amounted to deemed sanction of the additional construction. Hence, the said respondent was estopped from raising any question with regard to the additional construction as has been done in the letter dated 8th October, 2009. Argument was since the site plan for the additional construction wherein the proposed construction had been shown has been approved, sanction of the building plan is automatic. Submission was though the ingredients of section 218 of the West Bengal Municipal Act, 1993 (for short the Act) are absent, however, in the letter dated 8th October, 2009 opinion regarding unauthorised construction has already been formed. As the power under section 218 is to be exercised by the respondent no.2, the action of the said respondent in issuing the letter dated 8th October, 2009 was without jurisdiction. On a query it was submitted that the letters dated 10th June, 2009 and 16th June, 2009 addressed to the said respondent, in which there was an admission of unauthorised construction, were written by the petitioner no.1. So far as keeping the Certificate of Enlistment in abeyance, which is a fallout of the alleged illegal construction, submission was since under section 119 of the Act action, if any, should have been by the Executive Officer of the Municipality, the notice in the newspaper as evident from page 52 of the petition, was without jurisdiction and illegal. Learned advocate appearing on behalf of the Municipality relying on the affidavit in opposition affirmed on behalf of the respondent no. 2 and the said respondent and the records produced had submitted that the writ petition proceeds as if proceedings under section 218 had been initiated. Submission was though in the month of January, 2009 sanction for G + 1 was granted, however, it is evident from the statements in paragraph 4 of the petition that construction of the additional floors including chilekotha had been undertaken without any sanction. Referring to the records it was submitted that on 17th April, 2009 site plan was submitted and inspection was fixed on 8th May, 2009. Prior to the said date, on 28th April, 2009, site inspection was held. On that day a report was prepared. Though in the said report chilekotha finds no mention, it is evident not only 2nd and the 3rd floors, that is the additional construction had been built unauthorisedly, but there had been unauthorised construction in G + 1 too. In the report the Overseer of the Municipality had observed in writing that fine might be imposed, which the Vice Chairman on 30th April, 2009 in writing had allowed. Thereafter, fine for unauthorised construction and sanction fees for building plan for additional construction were accepted on 2nd May, 2009 and 8th May, 2009 respectively. Referring to the statutory provisions it was submitted that approval of a site plan and sanction of a building plan are two different aspects. Sanction of a site plan does not mean automatic approval of the building plan. Besides there is no provision in the Act or in the Rules for regularising an unauthorised construction on payment of fees. Referring to the plan for additional construction which was part of the records produced, it was submitted that sanction has not been granted by the said respondent.
(3.) Submission was pursuant to the letter dated 21st August, 2009 by the petitioner no.1, the said respondent by her letter dated 28th August, 2009 requested him to appear on 11th September, 2009 for showing cause as to why suitable steps should not be taken for carrying out illegal construction, which was refused. Subsequently, a similar letter dated 8th October, 2009 was issued requesting the petitioner no.1 to appear on 21st October, 2009 for hearing. Thereafter, by letter dated 9th October, 2009, Officer-in-Charge, Habra Police Station was requested by the said respondent to provide police help on 14th October, 2009 during inspection of the premises regarding unauthorised construction. According to the Municipality the letters dated 8th October, 2009 and 9th October, 2009 were in consonance with sections 16(5) and 220 of the Act. According to him since additional constructions have been carried out on the premises unauthorisedly by the petitioners wherein business is being carried on by them, the said respondent was justified in keeping the Certificate of Enlistment in abeyance. Learned advocates for the parties during argument had relied on several judgements which shall be referred to appropriately. The questions which are to be considered are :- i) Whether an unauthorised construction in a municipality governed by the provisions of the West Bengal Municipal Act, 1993, can be regularised on payment of fees or penalty or fine. ii) Whether the Chairman was competent to issue the letters dated 8th October, 2009 and 9th October, 2009 and iii) Whether the action of the said respondent in keeping the Certificate of Enlistment in abeyance was proper. In order to answer the first question it is necessary to refer to section 204, which is as under :- "204. Prohibition of building without sanction.- No person shall erect or commence to erect any building or execute any specified building work, except with the previous sanction of the Board of Councillors 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." As seen from the plain language of section 204, that it creates an absolute bar in erecting a building without sanction. The words "No person shall erect or commence to erect any building or execute any specified building work except with the previous sanction of the Board of Councillors" and in accordance with the provisions of Chapter XIV of the Act or the Rules or Regulations leave no manner of doubt in that regard. In the instant case as evident from the records after the submission of the site plan, on 28th April, 2009 site inspection was held. A "Site Inspection Report" was prepared by the Overseer of the Municipality wherein he had put a note in writing that "Fine may be imposed", as it appears, for the unauthorised construction. Thereafter, on 30th April, 2009 the Vice Chairman had in writing "allowed" it. On 2nd May, 2009 the petitioner had deposited a sum of Rs. 21,000/- with regard to the unauthorised construction and consequently in the petition prayer has been made for regularising the same. In this context it is to be noted that though in paragraph 7 of the affidavit in opposition filed on behalf of the Municipality it has been emphatically stated that under the Act there is no provision for regularising the illegal construction, the said submission has not been countered by the petitioner either in the reply or during submission. In fact I find there is no provision in the Act which permits regularising an unauthorised construction on payment of fees or fine or penalty. Hence, in my view, since the language in section 204 is clear and unambiguous, regularising an unauthorised construction on payment of fees or fine or penalty as contended by the petitioner is illegal. Therefore, in view of the position of law, the note dated 28th April, 2009 by the Overseer of the Municipality in the Report that "fine may be imposed" with regard to the unauthorised construction which was "allowed" on 30th April, 2009 is not warranted under the provisions of the Act and thus arbitrary, without jurisdiction and illegal. The argument of the petitioner that sanction of the plan is deemed to have been granted under section 208 of the Act by the Board of Councillors of the Municipality as neither the order granting sanction or refusing it after submission of the plan for additional construction has been passed under section 207, cannot be accepted as the section does not apply to a case where building has already been constructed unauthorisedly contravening the provisions of the Act or Rules, since it postulates that "so, however, that nothing in the section shall be deemed to have permitted the applicant to contravene any of the provisions of this Act or of the Rules made under section 198 or of any rules or regulations applying to such work". Besides the argument that the sanction of a site plan would automatically result in the sanction of a building plan cannot be accepted on a perusal of section 203, the relevant portion of which is as under : "203. Approval of building-sites and sanction of plan for erection of buildings.- No piece of land shall be used as a site for the erection of a building unless such site has been so approved within the prescribed period, and no building shall be erected unless a building plan has been sanctioned for such erection in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act:.";