Calcutta High Court
Altabur Rahman Mollah And Anr vs Mayor In Council And Ors on 4 March, 2021
OD-1
ORDER SHEET
APOT/24/2021
WITH
WPO/379/2019
IA NO. GA/1/2021
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
ALTABUR RAHMAN MOLLAH AND ANR.
Versus
MAYOR IN COUNCIL AND ORS.
BEFORE:
The Hon'ble JUSTICE SUBRATA TALUKDAR
AND
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 4th March, 2021.
Appearance:
Mr. Mayukh Maitra, Adv.
Mr. Rajesh Naskar, Adv.
Ms. Suchismita Chatterjee (Ghosh), Adv.
Mr. Malay Kr. Seal, Adv.
...for appellants
Mr. Alok Kumar Ghosh, Adv.
Mr. Dilip Chatterjee, Adv.
Mr. Gopal Ch. Das, Adv.
...for KMC
Mr. Dilip Kr. Chatterjee, Adv.
...for respondent no.6
Mr. Subrata Basu, Adv.
Mr. Kumar Gupta, Adv.
Mr. Deepak Jain, Adv.
...for respondent nos.
9, 10, 11 & 12
The Court: Under challenge in this appeal is the order dated 11th
February, 2021 passed by the Hon'ble Single Bench in GA 1 of 2020 (Old
No.GA 1007 of 2020) and GA 2 of 2020 filed by the present appellants/ the writ
petitioners in WPO 379 of 2019.
Before venturing into the contents of the order dated 11th February,
2021, it would be necessary for this Court to examine the reliefs claimed by the
present appellants/ the writ petitioners in the writ petition itself. The primary
prayers in the writ petition read as follows:-
"a) A declaration that impugned decision and the impugned order
dated 18.3.2018 passed by the respondent nos.1 to 5 as pleaded in
paragraph 41 herein above are illegal unconstitutional and null and void;
b) A writ of or in the nature of mandamus do issue commanding
and/or directing the respondent nos.1 to 5 to forthwith withdraw and/or
recall and/or rescind and/or cancelling and/or impugned decision as
pleaded in paragraph 41 herein above;
c) A writ of or in the nature of mandamus do issue permanently
restraining the respondent nos.1 to 5 from permitting the private
respondent nos.9 and 10 being the owners of flat no.1A (in the first floor)
and respondent nos. 7 and 8 being the owners of flat no.3A (in the third
floor) and the Respondent Nos. 11 and 12 being Owners of flat No. 1B from
using the said flats which were meant for residential use for commercial
purpose."
The prayers for Certiorari, Rule Nisi and interim reliefs were also made in
support of the primary prayers as recorded above. The present appellants/writ
petitioners, thereafter, filed GA 2 of 2020, which was an application praying for
amendment of the writ petition. The Hon'ble Single Bench noticed the fact,
while dismissing GA 2 of 2020, that the non-supply of filtered water in the
premises of the writ petitioners/the present appellants is absolutely a fresh
cause of action since the prayers in the writ petition were confined to the
alleged conversion of the flats in the building in issue from residential to
commercial use. The Hon'ble Single Bench, therefore, held that the writ
petitioners will be at liberty to initiate appropriate proceedings connected to
their fresh cause of action regarding non-supply of potable water before the
appropriate forum.
Next, the Hon'ble Single Bench considered the scope of GA 1 of 2020.
The scope of GA 1 of 2020 was in sync with the prayer for amendment
connected to water supply to the premises in issue. The writ petitioners/the
present appellants complained of the fact that they were not receiving adequate
filtered water supply from the underground reservoir of the building in issue.
The Hon'ble Single Bench held that in view of the nature of the dispute
raised by the writ petitioners/the present appellants in GA 1 of 2020, the same
again is required to be raised before the appropriate forum. Accordingly, GA 1
of 2020 also stood dismissed.
Mr. Maitra, learned Counsel appearing for the appellants, submits that
the supply of clear filtered potable water is essentially in discharge of statutory
obligations by the respondents/the Kolkata Municipal Corporation (for short
the KMC). It is submitted that the Hon'ble Single Bench could not have
dismissed at the threshold the prayer of the writ petitioners/the present
appellants to get an essential supply such as filtered piped water.
Attention of this Court is drawn to several provisions of the Kolkata
Municipal Corporation Act, 1980. The said provisions namely, are Sections 257
and 258 of the Kolkata Municipal Corporation Act, 1980. For a better
understanding of this discussion, it is relevant to reproduce the sections in
full:-
"257. Water pipes etc., not to be placed where water will be
polluted.- No water pipe shall be laid in a drain or on the surface of an
open channel or house gully or within twenty feet of a cesspool or in any
position where the pipe is likely to be injured or the water therein polluted;
and no well or tank and, except with the consent of the Municipal
Commissioner, no cistern shall be constructed within twenty feet of a
latrine or cesspool.
(2) No latrine or cesspool shall be constructed or made within twenty
feet of any well, tank, water pipe or cistern or in any position where pipe,
well, tank or cistern is likely to be injured or the water therein polluted.
258. Supply pipes to be kept in efficient repair.- It shall be
incumbent on the owner or the occupier of any premises to which water is
supplied from any waterworks belonging to the Corporation to keep in a
thoroughly clean condition, and to maintain and keep in efficient repair,
every supply pipe connecting the premises to the supply mains of the
Corporation and any other water-fittings in the premises:
Provided that upon an inspection, the Municipal Commissioner may,
by written notice, require the owner or the occupier of the premises to
remedy any defect which he may find:
Provided further that when an occupier of any premises is served
with a notice under this section, he may, after giving three days' notice in
writing to the owner or to the person to whom he is responsible for the
payment of his rent, himself have the repairs executed and deduct the
expenses thereof from any rent which is due from him to such person."
Further, the attention of this Court is drawn to Section 267 of the
Kolkata Municipal Corporation Act, 1980 which again is reproduced for the
benefit of this discussion:-
"267. Power to require water supply to be taken.- If it appears
to the Municipal Commissioner that any premises in Kolkata are without
supply of wholesome water for domestic purposes or that the existing
supply of water for domestic purposes available for the persons usually
occupying or employed in such premises is inadequate or on any sanitary
grounds objectionable, the Municipal Commissioner may by notice in
writing require the owner of the premises or the persons primarily liable for
the payment of the [property tax] in respect of the same -
(a) to take a connection from the supply mains of the Corporation
adequate for the requirements of the person occupying or employed in the
premises or to take such additional or enlarged connection or connections
from the supply mains; and
(b) to provide supply pipes and water-fittings and install and work a
pump and do all such works and take all such measures as may, in the
opinion of the Municipal Commissioner, be necessary for the above
purposes."
It is, therefore, reiterated by Mr. Maitra that the prayer for supply of
filtered piped water is a prayer which is consequential to the main prayers in
the writ petition and, arguably, are in the nature of subsequent developments
which must be taken notice of by the Courts sitting in constitutional writ
jurisdiction.
Fortifying his above stand, Mr. Maitra relies upon the decisions reported
in (1989) 2 SCC 691, (2004) 2 Cal LJ 154 and AIR 2005 Cal 129. It is
argued that the three decisions speak of the inherent jurisdiction of the writ
court to take into notice subsequent developments and, to remedy injustice
whenever brought to the notice of the writ court in exercise of its plenary
jurisdiction.
An additional point is also taken by Mr. Maitra that the premises in issue
are not equipped with the requisite fire safety measures.
Mr. Kumar Gupta, learned Counsel led by Mr. Basu, learned Counsel,
submits that the dispute between the parties are purely personal and,
therefore, civil in nature.
It is submitted that there are special statutes governing the relationship
inter se landlords/promoters/purchasers of flats in any building which is
constructed by promoters/developers. It is also submitted that the
amendments sought by the writ petitioners/the present appellants is de hors
the original action pleaded in the writ petition.
It is pointed out that the Hon'ble Single Bench permitted a Report to be
filed by the appropriate officer of the KMC. Such Report speaks of the fact that
filtered water supply is being provided to the premises in issue by the KMC to
the public distribution point required to be maintained by KMC under the law.
Mr. Ghosh, learned Counsel appearing for the KMC, submits that the
responsibility of the respondents/KMC under the statute, viz. the KMC Act,
1980 is to the extent of maintaining the ferrule point of connection to every
building in the locality which is eligible to receive filtered water from the
Corporation. It is submitted that no dispute has been raised by the writ
petitioners/ the present appellants of any irregularity at the point of common
supply maintained by the KMC. It is also submitted by Mr. Ghosh that the
alleged dispute raised by the present appellants is to the quality, quantity and
regularity of the supply from the underground reservoir of the building in issue
to the respective flats, including the flats of the writ petitioner/the present
appellants. Such a supply arrangement from the building's own reservoir, is
purely an internal arrangement of the flat owners and the KMC has no legal
obligation beyond the statutory prescription to oversee the internal water
supply arrangements of any premises.
Having heard the parties and considering the materials placed, this
Court first brings its attention to the portion of the order of the Hon'ble Single
Bench dated 11th February, 2021 dismissing GA 2 of 2020. Undoubtedly, to the
mind of this Court, there was no whisper in the writ petition connected to the
feasibility of the water supply. Admittedly, to the mind of this Court, the
prayers in the writ petition are purely directed to the alleged conversion of the
residential areas into commercial use. No prayer is directed against the filtered
water supply connection which is claimed in GA 2 of 2020 and through GA 1 of
2020.
Accordingly, to the further mind of this Court, the amendment, if
allowed, would change the very basis of the writ petition itself. The Hon'ble
Single Bench, therefore, committed no error in dismissing GA 2 of 2020 and
also GA 1 of 2020.
Considering the argument of Mr. Maitra that the prayers connected to
supply of filtered water is a subsequent development which can be taken notice
of while deciding the writ petition itself, this Court is of the clear view that the
provisions of the KMC Act, 1980 prescribe the extent to which the obligations
of the KMC arise to supply water connection to any building in the locality.
Again, to the mind of this Court, there can be no subsequent
developments which are de hors the statutory prescription.
The judgments, therefore, as relied upon by Mr. Maita, do not support
the point that in order to seek reliefs based on subsequent developments, the
Court has to pass any direction to an Authority (such as KMC) which is beyond
the statutory prescription of such Authority itself.
Accordingly, this Court also does not find reason to interfere with the
above referred portion of the order dismissing GA 1 of 2020.
With reference to the prayer for fire safety norms, this Court finds that
no material in support thereof is pleaded in either GA 1 of 2020 or GA 2 of
2020. Although Mr. Maitra submits that the point is pleaded in GA 1 of 2020, it
does not appear more than a bald statement. Neither do the prayers in GA 1 of
2020 relate to such a bald pleading which was not pressed before the Hon'ble
Single Bench.
In the backdrop of the above discussion, this Court holds that the order
impugned dated 11th February, 2021 requires no intervention.
APOT 24 of 2021 with IA No.GA/1/2021 stand thus dismissed.
Affidavits have not been called for connected to the application filed in
this appeal for the simple reason that the points urged on behalf of the parties
are based on interpretation of a given state of facts which turn on the related
legal provisions. Accordingly, all other allegations beyond the discussion made
in this order, are deemed to have been denied and disputed.
Leave is granted to the appellants to file the certified copy of the order
impugned in this appeal.
Parties are to act on a server copy of this order downloaded from the
official website of the Court.
(HIRANMAY BHATTACHARYYA, J.) (SUBRATA TALUKDAR, J.)
R.Bhar
