- (1.) ASSAILING the judgment and order dated 3rd march, 2006 passed by learned trial Judge in W. P. No. 2016 of 2005, this appeal has been preferred by the Municipal Commissioner, Kolkata Municipal corporation and other Officers of the said Corporation. By the impugned judgment under appeal learned trial Judge allowed the writ application filed by the writ petitioners by quashing/setting aside the decision of Municipal building Tribunal passed in B. T. Appeal No. 49 of 2002 confirming the order of demolition passed by Special Officer (B) in Demolition Case No. 25-D/o1-02 and passed the direction to regularize the unauthorized construction by conversion of parking space as servants' room on realizing the penalty as per rule. The relevant portion of the impugned judgment under appeal reads such: "i have already mentioned above that neither the Special Officer (Building)nor the Appellate Authority came to a finding regarding violation of any specific Building Rules, in such construction. The constructions were made, no doubt, in deviation of the sanctioned plan, but whether such deviation offends any Building Rule or not, has not been considered either by the Special Officer (Building) or by the Appellate Authority. The tests which were laid down by the various pronouncements of the Hon'ble supreme Court as well of this Court, as referred to by Mr. Mullick, have not been applied in the instant case. The decisions which have been cited by Mr. Ghosh do not apply in the facts of the instant case, as the extent of the unauthorized construction is magnificently meagre than that of the extent of unauthorized construction which were under consideration before the Hon'ble Supreme court in those decisions. In those cases, the authorized constructions were very much extensive and massive. Such constructions were made not only in deviation of sanctioned plan, but also in violation of the Building Rules. Such constructions were raised by the promoters with profit earning motive. Under such circumstances, discretion was not exercised in favour of retention. The reasons for retention of the other portion of the offending constructions, uiz. , the association room and the toilet which were constructed beyond the sanctioned plan, have not been disclosed in the order passed by the Special Officer (Building ). Thus, how and why the discretion was exercised by the said Special Officer (Building) in favour of some portion of the offending construction while refusing to exercise such discretion in favour of other similar type of illegal construction in the same premises, cannot be ascertained from the order itself. The justification for exercise of such miscreation by the Special Officer (Building) has not been considered the Appellate forum which mechanically affirmed the order of the Special Officer (Building ). Demolition precise prepared in this proceeding show that such constructions were made after issuance of completion certificate. There is nothing on record to show that such constructions were made by the promoters. . . . . . . . . . . . . . . . . that a it may, here in the instant case I find that the order impugned in absolutely a non-speaking order. Even no independent finding that arrived at by the appellate authority with regard to the alleged subverance and inconvenience of the complainants for such illegal construction. If the surference of the complainants is the only consideration for passing the order of demolition, then retention of the other similar offending portion, cannot be justified. Neither the Special Officer (Building) nor the Appellate authority considered the nature of construction complained of. Only boundary walls on the four sides of the garage space in between the pillars have been raised and thereby converted the garage space into room. These constructions were all made by the respective allottees within their respective allotments, the other flat owners have no right of joint user of the said spaces. As such, the complainants cannot suffer any inconvenience due to such constructions. Neither the Special Officer (Building) nor the Appellate tribunal found that F. A. R. has been affected by such constructions. How the service area will be affected by such construction and the degree of such affectation has not been discussed in the impugned order. Accordingly, their Court cannot agree with the findings of the Tribunal. The impugned order is, thus, set aside. The Municipal Authority, is, thus, directed to regularize such construction by realizing penalty as per rules. As such, the impugned order cannot be retained on record. The impugned order is, thus, set aside. Urgent xerox certified copy ofthis order, if applied for, be given to the parties, as expeditiously as possible. "
(2.) IT is the case of the writ petitioners in the writ application that they purchased the additional car parking space, which was duly converted to servants' room by the promoter and there was no breach of building rule. It was the further contention that the other flat owners who did not purchase servants' room as constructed in the additional car parking space out of vengeance lodged a complaint to the Kolkata Municipal Corporation who in turn initiated a proceeding under section 400 Sub-section (1) of the Kolkata municipal Corporation Act, 1980, hereinafter for brevity referred to as 'k. M. C. Act', against the writ petitioners, who thereby passed a decision of demolition of servants' room converted from additional car parking space and demolition of the partition walls constructed by the writ petitioner in their respective portion of the roof by raising the walls 3 ft. or more.
(3.) SAID proceeding under section 400 Sub-section (1) of the K. M. C. Act registered as Demolition Case No. 25-D/01-02 in respect of the premises No. 51a, B. T. Road, Kolkata was decided against the writ petitioners upon hearing their objection and order of demolition was passed directing demolition of the structure unauthorizedly constructed in the additional car parking space as was converted to servants' room and the partition walls as raised dividing the roof. The relevant portion of the findings of Special Officer (B) reads such: "the report of the A. E. dt. 12. 12. 01 states that some constructions have been made at the ground floor and within the covered car parking and service area. The constructions are mainly with brick walls and for the purpose of making servant rooms. There are some shifting or rooms like the Caretaker Room and toilet and Electrical Room. Some of the P. Rs. have made wall on the roof. The A. E. further states that there has been a building plan sanctioned in favour of the building vide B. S. Plan 140 (B-I) dt. 14. 3. 96 and also a plan under rule 25 sanctioned vide no. 63 (B-I) dt. 30. 5. 97 and subsequently the building was certified by issuing occupancy certificate vide E. E. (C-B) 902/b-I of 97-98. This unauthorized construction is old one and has already been completed long since. So proposal under section 400 along with precis and demolition sketch are forwarded before the higher authority far further orders. During hearing the P. Rs. side have submitted that they have not made any construction work but the Promoter has sold the flats after making the constructions. The P. Rs. side has submitted a copy of B. S. Plan and a specimen copy of sale deed. ";