The Telegraph
Saturday , July 26 , 2014
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Buildings can’t be fined and legalised

Calcutta, July 25: The Calcutta Municipal Corporation (CMC) has no authority to legalise unauthorised construction in exchange of a fine, the high court ruled today.

The court added that any construction declared illegal should be pulled down within four weeks.

Referring to Section 400 of the Calcutta Municipal Corporation Act, 1980, Justice Saumitra Pal said the act stated that the civic authority “would have to demolish any construction made in violation of a plan sanctioned by it”.

The court added: “This act and the CMC Building Rules, 2009, do not authorise the civic authority to regularise an unauthorised construction against payment of a retention fee fixed by it.”

It is not clear whether the government will now change the law. The CMC has the option of appealing in a higher court, too. “I will be able to comment only after I go through the court order,” mayor Sovan Chatterjee said.

Appearing on behalf of the CMC, advocate Alok Ghosh contended that Section 400 of the CMC Act says that the civic body “may demolish” an unauthorised construction. “The word ‘may’ authorises CMC to regularise any construction against a fine,” he added.

Justice Pal heard for five days the arguments to clarify the word “may”.

The petitioners said the act meant “must”. The judge went with them.

Until now, once the CMC deemed a structure illegal, it used to send a notice to the owner to appear for a hearing. In almost 99 per cent of the cases, a panel of retired government officials would levy a penalty, sources said. Penalty paid, the original plan would be altered and the “unauthorised” would become “authorised” overnight.

Today’s verdict specifically mentioned illegal construction within the jurisdiction of the Calcutta Municipal Corporation. But advocate Anindya Sunder Das said: “This would serve as a guideline for other corporations and municipal bodies since the broad outlines of building construction for these bodies are drawn from the tenets framed under the CMC building rules.”

The court also set a specific deadline for demolition. Justice Pal’s judgment states that once a building has been declared unauthorised, first by the CMC, then by a tribunal and finally by the high court, the civic body would have to demolish the construction within four weeks.

The verdict said: “Once the high court upholds the tribunal’s order and declares a construction illegal, the CMC would have to carry out the demolition within four weeks.”

The ruling came on a clutch of petitions on unauthorised constructions.

According to some estimates, many buildings in Calcutta have some unauthorised part or the other.

A section of lawyers and senior officials of the civic body wondered whether the judgment would hold true for unauthorised constructions already dotting the city’s skyline.

“Many buildings in city have already been declared illegal by the civic body and subsequently the high court and the Supreme Court. Today’s verdict does not say what will happen to those buildings,” said advocate Kallol Guha Thakurata.

“The CMC unnecessary drags its feet in complying with court orders. There have been several instances when the civic body has not paid heed to a court order even after contempt proceedings.”

Senior officers at the CMC’s building department said it was still not clear how to deal with occupants of an illegal building before pulling it down. “The biggest constraint in the way of demolition are occupants. We rarely get an illegal building that is vacant,” said Debasish Chakrabarty, director-general, buildings (II), CMC.

Others said it was a common trick to put people in to prevent demolition of even under-construction buildings.

Officials said the CMC could demolish only the vacant sections of the Nandaram Market on Brabourne Road and Sree Shyam Market on 174 CR Avenue. The rest have survived over the years even though the Supreme Court has declared them illegal. Nandaram Market now stands as a G+12 construction.

According to civic records, the building is legal only till the fifth floor. Despite the apex court’s order, the CMC has not been able to demolish any of the illegal floors because of the presence of occupants who refused to move out.

“We have no right to dislodge an occupant while demolishing a building or a floor. Who will take responsibility if something untoward happens to any of the occupants during demolition?” asked a senior officer of the CMC’s building department.

Sree Shyam Market now stands across 10 floors despite a Supreme Court order for complete demolition in 1996. Here too, the sheer number of occupants across all the floors came in the way of demolition.

In March 2013, chief minister Mamata Banerjee had chided mayor Chatterjee on illegal constructions across the city after it appeared that a part of the fire-ravaged Sealdah market was illegally constructed. A year later, in April 2014, urban development minister Firhad Hakim wrote to the mayor, asking him to take steps against illegal buildings that were “mushrooming” across the city.