28.03.

2022
Sl. No. 44
ss W.P.A. 3982 of 2022

Sona Karar & anr.

Mr. Abhratosh Majumdar

Mr. Sandipan Banerjee

The writ petition has been filed challenging the

self-demolition order dated January 20, 2022 issued by

the Assistant Engineer, Howrah Municipal Corporation.

The grounds of challenge are as follows :-

a) The extent of deviation from the sanction plan

had not been pointed out in the order;

b) The nature and character of the unauthorized

construction, was not reflected in the order;

c) The authority had wrongfully recorded that the

petitioners had admitted that the construction

was unauthorized;

d) The order was cryptic, without reasons and

passed without considering the submissions

made on behalf of the petitioners.

The petitioners have produced a sanction plan

granted by the Howrah Municipal Corporation for

construction of a G+3 storeyed building. A

supplementary affidavit has been filed inter alia,

containing a revised plan which had been filed with the

Corporation, for construction of the 4th and 5th floors.

It is submitted that the petitioners have not yet started

construction of the 4th and 5th floors, in view of the

pendency of the revised plan.

The petitioners upon receiving the order,

objected to the finding that the deviation was admitted.

The said representation has not yet been considered by

the Corporation.

Mr. Banerjee, learned Advocate appearing on

behalf of the Corporation submits that a proceeding

was initiated suo motu. Upon detecting unauthorised

construction, and on the basis of the admission, the

order was passed.

Mr. Ghosh Dostidar, learned Advocate

appearing on behalf of the State, submits a police

report. Upon holding an enquiry of the construction on

the premises No.18/5 and 18/6, Gadadhar Mistry

Lane, Police Station Shibpur, Ward No.42, District

Howrah, such report has been filed. The same is kept

on record.

Having heard the learned Advocates for the

respective parties, 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.

Thus, 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.

Under such circumstances, this writ petition is

disposed of upon setting aside the order dated January

20, 2022. Liberty is granted to the Corporation to act

and proceed in accordance with law, de novo. 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

and the hearing to be held, pursuant to the order of

this court. While disposing of the matter, the

Corporation will 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.

The court has not gone into the merits of the claims and

counter-claims of the parties and the issues involved shall be

decided independently.

The entire exercise shall be completed within a period of

four months from the date of communication of this order.

Accordingly, the writ petition is disposed of.

However, there will be no order as to costs.

All the parties are directed to act on the basis of the

learned advocate’s communication.

(Shampa Sarkar, J.)