5 vs The Kolkata Municipal ...
2022 Latest Caselaw 2219 Cal/2

OD-11
                    IN THE HIGH COURT AT CALCUTTA
                        Civil Appellate Jurisdiction
                              ORIGINAL SIDE

                              APO/76/2022
                                  WITH
                             WPO/2347/2022
                            IA NO: GA/1/2022

  15, NOORMAL LOHIA LANE TENANTS' WELFARE ASSOCIATION AND ORS.
                            -VERSUS-
          THE KOLKATA MUNICIPAL CORPORATION AND ORS.



BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
             AND
The Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : 22nd August, 2022.

                                                                   Appearance:

                                                      Mr. Arindam Banerjee, Adv.
                                                       Mr. Sarosij Dasgupta, Adv.
                                                        Mr. Bimalandu Das, Adv.
                                                            Mr. Shomrik Das, Adv.
                                                              ...for the appellants
                                                              Mr. Sakya Sen, Adv.
                                                     Mrs. Sima Chakraborty, Adv.
                                                       For respondent nos.6 to 13

Mr. Debjit Mukherjee, Adv.

Ms.Susmita Chatterjee, Adv.

For State Mr. Alak Kumar Ghosh, Adv.

Mr. Debangshu Mondal, For KMC

The Court : This appeal is directed against a judgment and order dated

July 20, 2022, whereby WPO No. 2347 of 2022 was disposed of.

The appellants were the writ petitioners before the learned single

Judge. They are an Association of tenants of the premises in question

which, we are told, is a fairly old building.

It is not in dispute that certain portions of the building require

extensive repairs. The owners would go further and say that the building

should actually be declared as condemned and it is beyond repairs. It

poses serious threat to the members of the public in the vicinity of the

building.

The appellants say that they have interacted with the Kolkata

Municipal Corporation Authorities on several occasions proposing to

repair the building at their own expense. The authorities have not

responded to such proposals. The owners say that there was no such

proposal.

We need not go into such dispute. The appellants approached the

learned single Judge with a prayer for a direction upon the respondent

authorities to take appropriate remedial action in respect of the premises

in question. It appears that before the learned single Judge, the owners

produced a notice issued by Kolkata Municipal Corporation under Section

412A(i) of the Kolkata Municipal Corporation Act. The relevant portion of

the said Section reads as follows:-

"412A. Power to declare building or any part thereof condemned and to order demolition of such building. - Notwithstanding anything contrary contained in this Act, or in any other law for the time being in force or in any agreement, custom or usage or in any decree, judgement, decision or award of any court, tribunal or authority, where it appears to the Municipal Commissioner that demotion of a dangerous building under section 411 will cause hardship to the persons in occupation of such building and may not be conducive to public interest in the urban area suffering from acute shortage of accommodation, it will be open to the Municipal Commissioner to proceed in the manner, and take the steps, as set out, hereunder:

(i) issue a notice to the owner and also occupier recorded as such in the records of the Corporation calling upon them to show cause, within such period as may be prescribed, why the building in question or any portion thereof shall not be declared to be condemned for the purpose of this section and after hearing the causes shown within the said period or such further period as may be granted, if it is found necessary in public interest to declare the building or any portion thereof condemned and should be demolished immediately for public safety, the declaration may be made to that effect requiring the building or the specified portion thereof to be demolished;

(ii) a copy of the declaration under clause (i) shall be served upon the owner and occupants who are recorded in the records of the Corporation as also pasted on the outdoor of the building requiring the owner and the occupants to vacate the premises within a month from the date of service and pasting of

such declaration or within such extended period as may be granted;"

It was submitted before the learned single Judge on behalf of the writ

petitioners that notice under Section 412A(i) of the Kolkata Municipal

Corporation Act has not been served upon them who are the occupiers of

the premises in question, as is mandatorily required under the aforesaid

statutory provision. The learned single Judge disposed of the writ petition

by the impugned order, the operative portion of which reads as follows:-

"As it appears from the documents produced before this Court and upon hearing the submissions made on behalf of the parties that the Kolkata Municipal Corporation has already issued notice under Section 412A(i) of the Act, accordingly, the Kolkata Municipal Corporation is directed to conclude the said proceeding strictly in accordance with aforesaid provision of law, after giving a reasonable opportunity of hearing to the owners as well as the tenants/occupiers or their representatives.

Learned Advocate representing the members of the petitioner No.1 submits that the show cause notice under Section 412A(i) of the Act has not yet been served upon the occupiers of the said premises. A copy of the notice issued in favour of the landlords under Section 412A(i) has been handed over to the learned Advocate representing the petitioners in Court today. The members of the petitioner No.1 will be at liberty to respond to the said notice.

The Kolkata Municipal Corporation shall take necessary steps to act strictly in accordance with law at the earliest to prevent any untoward incident."

Learned advocate for the appellants/writ petitioners says that the

language of the order impugned could be interpreted as directing the

Kolkata Municipal Corporation Authorities to proceed on the basis that

the building in question or portion thereof is decidedly condemned.

Hence, a clarification is sought for to the effect that the proceedings

pursuant to the notice under Section 412A(i) shall be in accordance with

law granting an opportunity to the appellants who are the occupants of

the building to show cause as to why the building or any portion thereof

should not be declared as condemned and/or does not require demolition.

Mr. Sen, learned Advocate appearing for the private respondents, who

are the owners of the building and Mr. Ghosh, learned counsel

representing the Kolkata Municipal Corporation say that there is no scope

for mis-interpreting the order impugned. The apprehension of the

appellants is baseless.

We do not wish to interfere with the order under appeal. However, we

do clarify that the order impugned is not to be construed as a declaration

that the building in question is a condemned building. The Municipal

Commissioner who is the competent authority shall decide whether or not

the building is to be declared as condemned and/or requires demolition

following due process of law, after giving full opportunity of hearing to all

parties concerned including the present appellants who are the occupants

of the said building.

The order impugned refers to a report of the Assistant Engineer(Civil),

Building Department, Kolkata Municipal Corporation and the Executive

Engineer (Civil), Building Department, Kolkata Municipal Corporation,

Borough-V, dated July 19, 2022. The learned Judge has reproduced the

contents of such report in the order impugned which apparently go

against the interest of the appellants herein. The appellants say that

neither was the said document a "report" nor were the appellants provided

an opportunity to dispute the contents of such report. The document was

only written instructions given to learned lawyers for Kolkata Municipal

Corporation. The appellants are apprehensive that in the proceedings

before the Municipal Commissioner or his delegate, the said document

may be used against them.

We clarify that in the event the aforesaid "report" is relied upon on

behalf of the Kolkata Municipal Corporation in the proceedings before the

Municipal Commissioner or his delegate, first an opportunity will have to

be granted to the appellants to file exception to such report.

Needless to say, copies of any document that the corporation

authorities desire to rely upon in the proceedings before the Municipal

Commissioner or his delegate will be made available sufficiently in

advance to the appellants for the appellants to respond to the same.

Mr. Ghosh, learned counsel for the Corporation requests the Court to

clarify that the appellant Association represents all the occupants of the

building in question. Mr. Banerjee, learned Advocate appearing for the

appellant Association says, on instructions, that all the occupants of the

building in question are members of the appellant Association. However, a

portion of the building has been kept under lock and key by the owners of

the premises.

With the aforesaid clarification, the order under appeal is affirmed.

The appeal and the connected application are accordingly disposed of.

[ARIJIT BANERJEE, J.]

[RAI CHATTOPADHYAY J.]

sb/