Santosh Prasad Saha v. Siliguri Municipal Corporation & Ors.

Under such circumstances, the writ petition fails. The law has been strictly interpreted and it is well-established that an unauthorized construction cannot be allowed to stand for a single day.

Reference is made to the following decisions:- (a) Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn., reported in (2021) 10 SCC 1. (b) Friends Colony Development Committee v. State of Orissa reported in (2004) 8 SCC 733. (c) Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai reported (2013) 5 SCC 357. 6 (d) Priyanka Estates International (P) Ltd. v. State of Assam reported in (2010) 2 SCC 27. (e) Dipak Kumar Mukherjee v. Kolkata Municipal Corpn. reported in (2013) 5 SCC 336.

Some of them are discussed below:-

In the matter of Dipak Kumar Mukherjee v. Kolkata Municipal Corpn. (supra), the Hon’ble Apex Court held as follows:-

24. In view of the pleadings filed before the High Court and the affidavits filed before this Court, there is no escape from the conclusion that Respondent 7 had raised construction in violation of the plan sanctioned under Section 396 of the 1980 Act and continued with that activity despite the order of the Mayor-in-Council. In the prevailing scenario, the representative of Respondent 7 might have thought that he will be able to pull strings in the power corridors and get an order for regularisation of the illegal construction but he did not know that there are many mortals in the system who are prepared to take the bull by horn and crush it with iron hand. **** **** 29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes traffic hazardous congestion. Therefore, it is imperative for the public the public and creates etc. Unauthorised construction 7 authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer.

In the matter of Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn. (supra), the Hon’ble Apex Court discussed the duties of the civic bodies and lamented the sorry state of affairs as under:- “167. The Court unauthorised construction destroys the concept of observed further planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the forefront when the Court prefaced judgment with following observations : (Esha Ekta Apartments case [Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC p. 363, para 1)

In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai (supra), the Hon’ble Apex Court observed as follows:-

8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law-abiding citizens that 8 someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it.

Writ of mandamus cannot be issued directing the authority to perpetuate a wrong by allowing an unauthorized construction to continue.

In the decision of Oriental Bank of Commerce v. Sunder Lal Jain reported in (2008) 2 SCC 280, the Hon’ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

12. These very principles have been adopted In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53) the proposition

15. ... There is abundant authority in favour of that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under performance.... In the instant case, it has not been shown by Respondent 1 that there is any the statute to enforce 10 statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is ought to be enforced is an obligation flowing from a contract which, as already is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same. indicated, Therefore, that a writ of in order mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities...."

The writ petition is, thus, dismissed.

Parties are to act on the basis of the server copy of this order. (Shampa Sarkar, J.)