Calcutta High Court
Atul Shah And Ors vs Kolkata Municipal Corporation ... on 14 February, 2022
OD-2
WPO/1103/2021
IA No.GA/2/2022, GA/3/2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
ATUL SHAH AND ORS.
Versus
KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date :14th February, 2022
(Via Video Conference)
Appearance:
Mr. Raghunath Chakraborty, Adv.
Ms. Sonali Ghosh Basu, Adv.
Ms. Sonali Sengupta, Adv.
..for the petitioners
Mr. Alok Kr. Ghosh, Adv.
Mr. Subhrangshu Panda, Adv.
..for KMC
Ms. Aparajita Rao, Adv.
..for CESC
Mr. Debasish Ghosh, Adv.
..for the State
Mr. Moinak Bose, Adv.
Mr. Amitabh Roy, Adv.
Mr. Navneet Mishra, Adv.
..for private respondents
Re:GA/2/2022
The Court: Learned counsel for the petitioners contends that, in gross
violation of the direction of this Court, the KMC has submitted a report authored
by an empanelled structural engineer, wherein extraneous consideration and
opinions of the author have crept in.
Learned counsel further argues that the report does not indicate anything
as to when and how the building was declared to be a dangerous one and as
regards whether, even after the appointed engineer of the KMC had carried out
demolition of the damaged portion, how the said author gave advise/opinion or
the modus as to how to repair the existing structure.
Learned counsel, by placing reliance on KMC tax receipts and electricity
bills, annexed to the application for temporary relief, submits that the petitioners
have been residing at the disputed premises for a long time.
It is further submitted that although no electricity bill has been produced
in respect of the building vis-à-vis the petitioners in their own name, certain bills
have been produced and annexed to the application, which bear out that the
father of petitioner no.2 and the grandfather (since deceased) of petitioner no.3
were consumers of electricity in respect of the disputed building.
However, learned counsel appearing for the respondents/owners submits
that the petitioners have no locus standi to present the writ petition or the
interlocutory application, since no electricity bill has been produced by the
petitioners in their own name to indicate that they are or were consumers of
electricity at the relevant juncture in respect of the dilapidated building.
It is further submitted that since the petitioners do not have a locus
standi to file the writ petition, no interim relief or final relief ought to be granted
by this Court at their behest.
Learned counsel for the respondents/owners places reliance on the
judgment reported at 2013(4) SCC 465 (A.N Pathan vs. State of Maharashtra and
ors.), wherein the Supreme Court elaborated the settled legal proposition that a
stranger cannot be permitted to meddle in any proceeding, unless he satisfies the
authority/Court that he falls within the category of aggrieved persons. A legal
right, which has to be infringed for preferring a challenge, was held to be an
entitlement arising out of legal rules.
Learned counsel appearing for the KMC contends that the report filed on
affidavit before this Court today, adheres to the directions of this Court.
Although there might be certain superfluous sentences in such report, such as
the opinion of the engineer regarding how the building should be repaired and
made habitable, that does not, ipso facto, take away the veracity and/or legality
of such report. It is further submitted that the KMC is neutral regarding the
stand of the CESC as regards reconnection of electricity being given to the
petitioners. However, it is sought to be clarified that the internal
communications between the appointed engineer and other authorities of the
KMC, annexed to GA/2/2022, only show that the damaged portion of the
building had been demolished. However, unless appropriate repair is effected,
the building still remains a 'dangerous' one.
It is further contended by the respondents that the notice under Section
411 of the KMC Act has not yet been challenged. As such, there is no scope of
this Court, sitting in writ jurisdiction over the electricity matter, to enter into the
merits of the condition of the building or the acts of the KMC.
Learned counsel appearing for the CESC, in her usual fairness, submits
that in principle, the CESC Limited has no impediment in giving restoration of
connection to the legitimate consumers of the dilapidated building, since the
dangerous portion has apparently been demolished, subject to the direction of
this Court and such consumers producing valid documents showing that they
are actual consumers of electricity in respect of the said building.
Upon considering the contentions of learned counsel for the
owners/respondents, it is found that they are substantially justified in taking an
objection as to locus standi of the petitioners. The documents produced before
this Court in connection with the writ petition and interlocutory applications, till
today, merely indicate, at best, that the petitioners and/or their predecessors
have been paying municipal taxes in respect of the building to the KMC.
However, the sole electricity bill produced by the petitioners is in the name of a
stranger to the litigation, who is claimed to be the deceased grandfather of one of
the petitioners.
As such, there is no sufficient document as of today on record to give rise
to a presumption that the petitioners were bona fide consumers of electricity in
respect of the said building at a period contemporaneous with the caving in of the
building.
Although the question of locus standi of the petitioners can be agitated by
the petitioners further at the time of final hearing of the writ petition, at least for
the prima facie purpose of deciding the present interlocutory application, filed
pursuant to leave granted by the Division Bench, I do not find anything on record
to create a solid presumption as to the petitioners having locus standi to present
the application or the writ petition.
That apart, the electric bill produced by the petitioners merely shows that
there was zero consumption of electricity by the consumer named in the bill. As
such, it is not beyond doubt that the petitioners are actual residents of the said
building or were such residents at any point of time, as also rightly argued by the
respondents/owners, the tenants association which has been previously
communicated with on behalf of the residents, has not come up before this Court
with the present writ petition or any other writ petition. As such, the interim
relief sought by the petitioners in GA/2/2022 cannot be granted at this stage.
Accordingly, GA/2/2022 is dismissed on contest. However, it is made
clear that this Court has not entered into the rights and contentions of the
parties as regards the merits of the writ petition, which will be decided finally
only at the juncture of final disposal of the writ petition. All questions taken by
the parties will be open to be re-agitated at such final hearing.
The writ petition will be enlisted in due course with liberty to the parties
to mention for inclusion in the list.
No order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to
the parties upon compliance with all requisite formalities.
(SABYASACHI BHATTACHARYYA, J.)
bp.
