TMI Blog2013 (8) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed by the Special Officer, Building. The complainant being dissatisfied with the order came up before this Hon'ble Court and this Hon'ble Court passed the following order on 30th January, 2004 :- The petitioner herein has challenged the validity and/or legality of the direction passed by the Special Officer (Building) in paragraph-B of the order dated 28th October, 2002 in demolition case no.15-D/02/03. Parties have filed affidavits in compliance with the earlier direction passed by this Court. Heard the learned counsel of the respective parties. It appears from the records that the learned advocate of the petitioner by written communication dated October 7, 2002 bearing annexure-P4 to the writ petition made specific allegation before the Special Officer (Building) in respect of the unauthorised and illegal construction of the premises no.32 Bose Para Lane. It has been specifically mentioned in the said written complaint that the illegal construction was extended even on the roof top of the adjoining premises so as to facilitate the testing of the illegal staircase. Surprisingly, the aforesaid complaint has not been taken into consideration b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no pucca staircase from 1st floor rooftop as such the entire constructions covering the Item No.1 and Item No.2 of the precis may please be demolished. The P.R. submitted that the impugned constructions practically did not affect the complainant premises viz. 31, Bose Para Lane in any way. If the staircase is demolished then the 1st floor which is existence will be value less because the P.R. and his family member will not be able to enjoy the 1st floor without any staircase. On this point the humanitarian ground at least this staircase as well as the casting of roof of the 1st floor may please not be ordered to demolish. Carefully and anxiously considered the submissions of both sides and perused carefully the materials on records. The Municipal Commissioner delegated his power of u/S. 400(1) of KMC Act'80 to this forum u/S. 48(3)(b) of KMC Act'80. Being a delegate of the Municipal Commissioner the power by this forum is mainly two folds. If unauthorised constructions is detected of this forum during hearing, this forum either may order for demolition of the same or if sufficient cause is found may not pass any such demolition order. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Samanta, learned Counsel appearing for the person responsible submitted that the Tribunal did not apply its mind. It has proceeded mechanically on the basis of the order passed by the learned Single Judge of this Court on earlier occasion. Mr. Samanta submitted earlier order of retention was passed so far the staircase is concerned and the private respondent came up before this Hon'ble Court and this Court directed the Tribunal to rehear the matter. The Tribunal without considering the entire matter passed the impugned order of demolition on the basis of the order passed by the learned Single Judge. Mr. Samanta submitted that the allegation of using parapet wall of the neighbour is not correct. He submitted that the construction is in fact not affecting anyone. It was constructed for better utilisation of the property of the petitioner alone. Mr. Samanta submitted that his client being the owner of the premises preferred an appeal before the Tribunal and the Tribunal also affirmed the order passed by the Special Officer, Building and thereafter a review application was made and the review application was also dismissed. Mr. Samanta submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this demolition proceeding is allowed in part. A The P.R. must demolish the unauthorised projected over hanging slab on C.M.C. road and the unauthorised constructions with fibre glass sheet shed made over the roof of the 1st floor within 15 days from the date of the communication of this order, in default, C.M.C. shall demolish the same at the cost and at the risk of the P.R. B No demolition order is passed in respect of the newly constructed R.C.C. stair made at the South of the building as well as reconstructed roof by R.C.C. over the 2nd storey removing the previous one, subject to complying the following preconditions by the P.R. within 30 days from the date of the communication of this order. Those conditions are (1) P.R. must produce a certificate from any C.M.C. panelled 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) he must furnish an affidavit declaring on oath that he will not make any construction whatsoever in the impugned premises without prior sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding Tribunal. The relevant portion of the aforesaid order is as follows :- We have mentioned earlier that there are three allegations stands against the P.R. viz. i) casting of roof (roof of the 1st floor) by RCC, (ii) erection of Stair Case with RCC from ground to roof of 1st floor along with stair head room and (iii) Chajja projected over CMC Footpath. Allegation further stands that by the said unauthorised construction P.R. infringes the Building Rule 57, 61,62,109 110 of the CMC Act. At the outset we are to say from the submission of the Appellant as well from the earlier demolition order of the S.O(B) that the said matter of projection of Chajja covering the CMC Footpath is otherwise admitted and the Appellant has also demolished the same. But however, the main grievance of the appellant as to the ordering portion of demolition in respect of the rest portion of unauthorised construction stating inter alia that they have simply raised the stair case in place of old and damaged wooden stair case without causing any harm or obstruction to anybody else and thus any violation of any building rules is relaxable, condonable and retainable. On the other hand both the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. On the other hand impugned order of S.O(B) is very speaking considering all aspect and thereby we find no cogent ground to interfere the said order of the S.O(B) dt. 1.6.2004. Appeal thus fails. Memorandum of Appeal duly stamped. Hence, it is ordered. That the B.T. Appeal No. 59 of 2004 be and the same is thus hereby dismissed on contest but without cost. Order of S.O(B) dt. 1.6.2004 passed in Demolition Case No. 15-D/2002-03 in respect of premises No. 32, Bosepara Lane, is thus hereby affirmed. The review application was also moved and the review application was also rejected and the following order was passed rejecting the application for review :- However, whatever may be the submission of all the parties, let us see how far the Review Application is tenable. Fact remains that upon application of rule 20 this Tribunal can ' (a) amend any defect or error in any order or proceedings in an appeal or (b) make such orders as may be necessary for ends of justice to prevent abuse of the process of the Tribunal.' But in the present case as it appears that by taking advantage of this rule 20 petitioner/ appellant once mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the wall of the complainant. In my view, the finding of the Tribunal do not suffer any illegality. Moreover these structures are very old and structural stability is an important aspect which could not be neglected. One portion of the staircase is resting on the complainant's parapet wall causing prejudice to the enjoyment as well as causing structural hazards on the complainant's premises. In my view, the construction made by the writ petitioner could not be regularised under any circumstance specially when there is no sanction and further a portion was constructed on the parapet wall of the neighbouring owners. Therefore, this Court is not inclined to interfere with the order passed by the Tribunal. Accordingly, the writ petition being W.P.23601(W) of 2007 is dismissed. So far writ petition being W.P.24843(W) of 2007 is concerned, the same is allowed. In case the person responsible do not demolish the unauthorised construction within fortnight, the Municipal authorities are directed to remove the staircase at their own cost and to recover the cost from the person responsible. There would be no order as to costs. Late ..... X X X X Extracts X X X X X X X X Extracts X X X X
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