Unless Order Of Demolition Specifically Indicates Extent Of Unauthorised Construction, It Cannot Be Implemented: Calcutta HC

The Calcutta High Court has recently observed that unless an order of demolition specifically indicates the nature of the deviation and the extent of unauthorised construction which is to be demolished, such an order cannot be implemented. 

Justice Shampa Sarkar observed, 

"In the opinion of the Court unless the order of demolition specifically indicates the nature of the deviation and the extent of unauthorised construction which is to be demolished, such order cannot be implemented. The order is also unreasoned and arbitrary."

Background

The Court was adjudicating upon a writ petition challenging the self-demolition order dated January 20, 2022 issued by the Assistant Engineer, Howrah Municipal Corporation. The petitioners upon receiving the order had objected to the finding that the deviation was admitted. However, the concerned representation had not been considered by the Corporation.

The petitioners had also produced before the Court a sanction plan granted by the Howrah Municipal Corporation for the construction of a G+3 storeyed building. A supplementary affidavit had also been filed containing a revised plan which had been filed with the Corporation, for construction of the 4th and 5th floors. The petitioners had also contended that they had not started the construction of the 4th and 5th floors, in view of the pendency of the revised plan. 

Arguments 

The counsel appearing on behalf of the Corporation apprised the Court that the proceeding had been initiated suo motu. Upon detecting unauthorised construction, and on the basis of the admission, the order was passed, it was submitted further. 

The counsel appearing on behalf of the State further submitted a police report after holding an enquiry of the construction of the concerned presumes. 

Observations 

Pursuant to the perusal of the rival submissions, the Court opined that the order of demolition does not point out the details of the deviation from the sanction plan. 

"..this Court is of the opinion that the order does not point out the nature, extent and details of the deviation from the sanction plan. There are no allegations of extension of floors, during the pendency of the revised plan", the Court observed. 

Accordingly, the Court set aside the demolition order dated January 20, 2022 but granted liberty to the Corporation to act and proceed in accordance with law, de novo.

The Court further underscored that if it is detected from the records that the proceeding had been initiated on the basis of any complaint, then the complainant shall also be notified of the inspection. 

While disposing of the petition, the Court ordered the Corporation to adopt the following procedure, 

a) An inspection of the premises shall be conducted. Such inspection shall be held in the presence of the petitioner and the complainant, if any, within three weeks. Advance notice of the inspection shall be served upon the petitioner and the complaint, if any. If the parties are not available to accept notice, the authorities shall affix the notices of hearing and inspection at conspicuous places in their respective premises.

b) In case, it is found on preliminary inspection that there may be reasons to believe that the construction was without permission and was continuing, the authorities may take such interim measures by stopping such construction.

c) The report of such inspection shall be prepared along with the sketch map, indicating the extent and nature of unauthorized construction, if any.

d) Such report shall be handed over to the parties.

e) A hearing shall be given to the petitioner and the complainant, if any. The parties must also be allowed to furnish their written objection/version to the said report and adduce oral and documentary evidence in support of their contentions, before the competent authority. All points raised by the parties shall be decided. All documents filed by the parties, if any, shall be exchanged.

f) A reasoned order shall be passed and communicated to the parties. On the basis of what transpires at the hearing and during inspection, the proceedings shall be reached to its logical conclusion, in terms of the statute.

Advocates Abhratosh Majumdar, Sayan Sinha and Steven S. Biswas appeared for the petitioners. Advocates Sandipan Banerjee and Ankit Sureka represented the Corporation. Advocates Asish Kumar Guha and Naren Ghosh Dostidar represented the State. 

Case Title: Sona Karar & anr v. The Howrah Municipal Corporation & ors.

Case Citation: 2022 LiveLaw (Cal) 114

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