- (1.) THIS Court has heard the learned Advocates for the respective parties. The petitioner's case in brief is that the petitioner is a tenant in respect of a terrace flat at premises No. 4a, Shambhunath Pandit Street, Kolkata (hereinafter referred to as the said premises) under the respondent Nos. 6 and 7 which was previously owned by Sri Satyendra Nath Maitra who had granted the said tenancy in favour of the petitioner's late husband Sudesh Kumar agarwal and after the death of the petitioner's husband on 18th June, 1970 the said tenancy was transferred in favour of the petitioner and rent receipts were, accordingly, issued. Petitioner's further case is that the said flat is in the same condition as it was at the time when the petitioner's husband was inducted as a tenant and the petitioner has not made any construction, alteration and/or reconstruction in or of the said flat. It appears from the writ petition that on or about 15. 1. 1998 the respondent Nos. 6 and 7 purchased the said premises including the tenanted portion enjoyed by the petitioner and her family. The petitioner's case is that the private respondents started harassing the petitioner by bringing various frivolous proceedings against the petitioner and also stopped accepting the rent tendered by the petitioner and the petitioner has been depositing the rent with the Rent Controller. Petitioner's further case is that at the instance of the respondent Nos. 6 and 7 the respondent Municipal authority came to demolish the tenanted portion of the petitioner and it was only by act of god that the petitioner's tenancy was saved from demolition - the petitioner had to move this Court in the writ jurisdiction and the respondent Municipal authorities were restrained, by way of an interim order, from proceeding under section 400 (8) of the Calcutta Municipal Corporation Act, 1980 but the respondent Municipal authorities were granted liberty to take expeditious steps under the other provisions of the Act. The petitioner's case is thatthe petitioner was subsequently served with a notice dated 21. 6. 2000 under Section 400 (1)of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) wherein it was inter alia stated that the "construction of (i) Asbestos shed 4. 0m x 2. 0m on the roof of 4th Storey (ii) Divided by the wooden partition at the 4th storey in stair block - All are without permission" and it was further alleged in the said notice that there were infringements of certain Building rules. Following the said notice hearing took place and the respondent No. 4 allowed the petitioner to retain the wooden partition at the 4th storey in the stair block without any payment of erection/re-erection charges and also allowing the petitioner to retain the asbestos shed subject to payment of erection/re-erection charges. The private respondent Nos. 6 and 7 filed an appeal against the said order dated 8. 11. 2000 and by an order dated 28. 9. 2001 the Municipal Building Tribunal set aside the order dated 8. 11. 2000 and thus allowed the said appeal and sent the case back on remand in the light of the observations made in the said order for fresh hearing. It appears that the private respondents have filed a suit in the Civil Court and parties have fought against each other on certain interlocutory matters. However, a second notice dated 10. 7. 2003 was issued by the respondent Municipal authorities under Section 400 (1) of the said Act of 1980 and the matter was again heard by another special Officer (Building) who by order dated 3. 6. 2004 declined to pass any order of demolition in respect of "deviated unauthorized constructions" subject to compliance with certain pre-conditions within 30 days from the date of communication of the order and those pre-conditions were (1) the petitioner must produce a certificate from any empaneled Structural Engineer certifying that the structural stability and the foundation of the impugned constructions are safe and sound and the materials used as well as workmanship are as per the latest edition of National Building Code of India, (2) the petitioner must furnish an affidavit declaring on oath that she will not make any construction whatsoever in the said premises without prior sanction from the Kolkata municipal Corporation authority and that she will not claim any ownership on those unauthorized constructions and (3) the petitioner must pay the necessary charges, if any, for not passing any demolition order and allowing the impugned constructions to stand, as per Building Rule 40 (1) (c) of KMC Building Rules, 1990. It was further ordered by the Special Officer that on non-compliance of "either of the conditions" within the stipulated period the KMC authority shall demolish the same at the cost and at the risk of the petitioner.
(2.) IT appears from the said order dated 3. 6. 2004 that the Special Officer (respondent No. 4) found that prima facie it appeared to him that the constructions in question were made without any sanction and that no sanctioned plan could be shown to the respondent No. 4. The respondent No. 4 further observed that from the inspection book he found that at the 4th storey in respect of the period 1969-70 (4th quarter) there were four rooms + one big room + Asbestos shed + 2 (B+p) and the name of the occupier is Sarita Agarwal and that on comparing such recordings with the demolition sketch he found that apart from those rooms, toilets, bath etc. one Puja room and one Asbestos shed room 4. 0m x 2. 0m were found in excess which have been shown in the demolition sketch as unauthorized. After having made such findings the respondent No. 4 further found that the Inspection Book does not help the petitioner in any way to establish that the impugned constructions were in existence since 4th quarter of 1969-70. The respondent No. 4 further came to the finding that he is unable to accept the submission of the petitioner to the effect that she is not in any way connected with the impugned unauthorized constructions. The respondent No. 4 found that in his considered opinion petitioner is responsible for the impugned unauthorized construction. The respondent No. 4 came to the conclusion that the petitioner has violated Rule 109 and 110 of the Building Rules since the impugned construction was made without sanction. The respondent No. 4 was of the opinion that in view of section 400 (1) read with Section 48 (3) (b) of the said Act the respondent No. 4 being "delegate of the Municipal Commissioner" has got some discretionary power not to order for demolition in each and every case of unauthorized construction on finding sufficient cause. The respondent No. 4 found that the impugned construction has been in existence for a long time if not from the 4th quarter of 1969-70 and the impugned construction is not so grave and serious and infraction of the Building Rules are very minor.
(3.) THE respondent Nos. 6 and 7 challenged the said order dated 3. 6. 2004 before the Municipal Building Tribunal in an appeal being BT No. 72 of 2004. The said appeal was disposed of by order dated 4th April, 2007 and the said appeal was allowed and the order dated 3. 6. 2004 passed by the respondent No. 4 was set aside with a direction upon the petitioner to demolish the impugned construction within 30 days from the date of the delivery of the said judgement and in default the Kolkata Municipal authority will demolish the same at the cost and risk of the petitioner. The Municipal Building Tribunal in the said order dated 4. 4. 2007 found that (1) admittedly the respondent Nos. 6 and 7 are the owners of the said premises and the petitioner is a tenant in the said property (2) admittedly a tenant has no right of construction and any deviation/addition/alteration/extension of the tenancy, even if required, is to be made subject to written permission/consent of the landlord and for major construction permission of the Kolkata Municipal Corporation is also required. On perusing the Inspection Book concerned and also the certified copy of the purchase deed of the respondent Nos. 6 and 7 the Municipal Buildingtribunal came to the finding that the puja room and the Asbestos shed room in question were not in existence within the tenancy of the petitioner and the said tribunal had sufficient reasons to believe that all such impugned constructions were made by the petitioner at her own risk for which she is responsible. The Tribunal further found that the order of the respondent No. 4 is self-conflicting. The tribunal was also of the opinion that the respondent No. 4 had extended the right of retention of the constructions in question to a tenant, like in the case of an owner, when the owner of the premises has serious objection to it.;