Dulal Krishna Kar vs The State Of West Bengal & Others
2023 Latest Caselaw 2250 Cal

03.04.2023
Item no.6
Court No.6.
  AB
                                  M.A.T. 195 of 2023
                                         With
                                  I A CAN 1 of 2023

                              Dulal Krishna Kar
                                     Vs
                      The State of West Bengal & Others

                    Mr. Varun Kothari,
                    Mr. Hemanta Kr. Das,
                    Mr. Arya Bhattacharya,
                    Ms. Ivee Bhattacharya,
                    Ms. Saolini Bose       ....for the Appellant.

                    Mr. Partha Pratim Roy,
                    Mr. Tanmoy Mukherjee,
                    Mr. Souvik Das,
                    Mr. Rudranil Das ....for the Respondent No.10.

Mr. Barin Banerjee, Ms. Sima Chakraborty.....for the KMC.

Md. T. M. Siddiqui, Mr. Nilotpal Chatterjee ....for the State.

By consent of the parties, the appeal and the

application are taken up for hearing together.

Affidavit of Service filed in Court today be kept

with the records.

A Judgment and Order dated January 2, 2023,

whereby the appellant's writ petition was, in effect,

dismissed, is under challenge in this appeal.

The appellant and the private respondent no.10

occupied two flats in the same building. The flat

occupied by the private respondent is immediately

above the flat occupied by the appellant. The appellant

approached the learned Single Judge with the

grievance that the private respondent has not kept the

washroom in his flat in proper state of repair, as a

result whereof there is leakage of water through the

ceiling of the flat of the appellant. The appellant

submitted before the learned Judge that his

representation filed before the Kolkata Municipal

Corporation (in short "KMC") has not been considered.

On behalf of the private respondent, it was

submitted before the learned Single Judge that the

pipeline in question is a private one and KMC does not

have any role to play.

Upon hearing learned Advocates for the parties,

the learned Judge was of the opinion that the dispute

in question cannot be decided either by KMC or by the

Writ Court. Accordingly, the learned Judge disposed of

the writ petition by granting liberty to the petitioner to

approach the appropriate forum for relief, if so

advised.

Being aggrieved, the writ petitioner is before us

by way of this appeal.

Learned Advocate for KMC files a written

instruction, the material portion whereof reads as

follows:

"Department has inspected the premises and observed that there is an existing Three storied Residential Building. During inspection both the Petitioner and Respondent No.9 were present. It is a matter related to dampness of Toilet's roof slab in between first floor and second floor. At the time of inspection no new construction or unauthorized works were detected."

Learned Advocate for the appellant draws our

attention to Sections 314 to 316 of the KMC Act, 1980.

Section 314 pertains to the power of the Municipal

Commissioner or any Officer authorized by him to

inspect and examine any house drain, bathing or

washing place or by tap fitting etc. of any premises.

Section 315 pertains to the power of the Municipal

Commissioner to require repairs etc. to be made by the

person responsible if it is found that there is any

default on the part of such person. Section 316

empowers the Municipal Commissioner to execute the

work at the cost of the person responsible in the event

such person fails to comply with the direction of the

Municipal Commissioner to effect necessary repairs.

Learned Advocate for the private respondent

says that the writ petition involves disputed questions

of fact. The allegation of the writ petitioner, that he is

suffering seepage of water due to the private

respondent not maintaining his washroom properly, is

incorrect. The Writ Court should not go into such

factual disputes.

Having heard learned Advocates for the parties,

we are of the view that the ends of justice will be

served if we pass the following directions:

(i) The Municipal Commissioner, KMC shall depute

a competent officer to inspect the concerned

premises of the appellant as well as the private

respondent for the purpose of finding out

whether there is any default on the part of the

private respondent, which is causing seepage of

water through the ceiling of the appellant/writ

petitioner.

(ii) Such officer shall prepare a written report upon

inspection to be made in the presence of both

the parties and make over copies of such report

to the appellant as well as the private

respondent.

(iii) This exercise will be completed upon prior notice

to the parties within a fortnight from a copy of

this order being communicated to the Municipal

Commissioner. If the competent officer's report

is that there is no merit in the allegation of the

appellant/writ petitioner, the matter will end

there. However, in the event the competent

officer's report is to the effect that the

appellant's complaint is justified, the private

respondent shall take necessary steps for

removing the cause of such complaint

immediately and definitely within a period of 10

days from the date of receiving copy of the report

from the competent officer of the Corporation.

(iv) In default of the private respondent carrying out

necessary repairs, the appellant will be at liberty

to do so at his own cost. For this purpose, the

private respondent shall render full cooperation

to the appellant.

No useful purpose will be served by keeping the

appeal pending.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

M.A.T. No.195 of 2023 is, accordingly, disposed

of along with IA CAN 1 of 2023.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Prasenjit Biswas, J.) (Arijit Banerjee, J.)