Subhas Jadav & Others vs Kolkata Municipal Corporation & ...
2023 Latest Caselaw 872 Cal

02.02.2023
Item no.6.
Court No.6.
  AB
                                  M.A.T. 142 of 2023
                                         With
                                   IA CAN 1 of 2023

                           Subhas Jadav & Others
                                     Vs
                   Kolkata Municipal Corporation & Others

                    Mr. Bikash Ranjan Bhattacharya, Sr. Adv,
                    Ms. Nandini Mitra,
                    Mr. Sanjay Saha       ....for the Appellants.

                    Mr. Alok Kr. Ghosh,
                    Mr. Swapan Kr. Debnath.....for the KMC.


                    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.

                    The subject matter of dispute is premises no.44,

              Strand Road, P. S. Barabazar, Kolkata - 700 007. We

              add the owners of the said building being Soumen

              Mallick, Ujjal Mallick, Tapati Mallick, Ranjan Mallick,

              residing at 155D, M. G. Road, Kolkata - 700007 and

              Soma Bandopadhyay, Tapasi Chattopadhyay, Minati

              Banerjee, residing at 19, Sankar Halder Lane, Kolkata

              - 700005 as party respondents in this appeal. Learned

Advocate on record for the appellants is granted liberty

to amend the cause title of the appeal papers and

serve copy of the appeal papers on the owners.

A judgment and order dated January 10, 2023,

whereby the writ petition of the appellants being WPA

No.8741 of 2022 was disposed of, is under challenge

in this appeal.

The appellants/writ petitioners occupy portions

of premises no.44, Strand Road, P. S. Barabazar,

Kolkata - 700 007.

On an earlier occasion, some of the present

appellants had approached this Court by filing a writ

petition contending that the building in question needs

repairs but Kolkata Municipal Corporation was not

granting permission to repair the premises. Before the

learned Single Judge, it was submitted on behalf of the

Corporation that the building is in a ruinous

condition. The department has served notices under

Section 411 of the KMC Act, 1980, requiring the

owners and/or the occupiers of the building to carry

out necessary repairs immediately. A notice has also

been issued declaring the building as a "dangerous

building".

The learned Judge noted that the Corporation

has taken necessary steps in the matter. Accordingly,

the learned Judge did not pass any order excepting

observing that the noticees are to act in accordance

with the notices issued by the Corporation, in default,

the Corporation shall be entitled to take further steps

in accordance with law.

Being aggrieved, the writ petitioners went up in

appeal by way of MAT 799 of 2021.

That appeal was disposed of by a Coordinate

Bench by a judgment and order dated December 8,

2021. The operative portion of the said order reads as

follows:

"We find absolutely no infirmity in the order under appeal. If the concerned building is in a dangerous condition, the same needs to be repaired urgently. The Corporation has issued requisite notices. The Corporation, we are sure, will take appropriate steps to see that no untoward incident happens because of the dangerous condition of the building.

The appellants say that they are prepared to carry out necessary repairs at their own cost. They will be at liberty to do so under the supervision of any empanelled structural engineer, at their own cost. We make it clear that in view of the notice under Section 411 of the Kolkata Municipal Corporation Act issued by the Corporation, the occupiers not only have the liberty, but the duty to carry out such repairs and this order shall not be construed as any kind of direction on the occupiers to carry out the repairs. Needless to say, under the garb of repairing the building, the appellants shall in no manner change the nature and character of the building. The owners of the building shall fully cooperate with the appellants insofar as the repairing work is concerned."

It appears that the Corporation runs a school on

the 3rd floor of the building in question. Contending

that the 3rd floor of the building requires immediate

repairs but the Corporation is not doing the needful,

the present writ petitioners approached the learned

Single Judge.

Before the learned Single Judge, it was

submitted on behalf of the Corporation that steps will

be taken for repairing the portion occupied by the

Corporation's school. The learned Judge, by an order

dated September 19, 2022, directed the Corporation to

take necessary steps for repairing the portion under its

occupation and to file a report before the Court

mentioning the nature of repairing work carried out.

On January 10, 2023, the matter came up again

before the learned Single Judge. The Director General

(Building), KMC and the Director General (Civil), OSD

and EO, KMC filed separate reports before the learned

Single Judge. After going through the reports, the

learned Judge noted that the building from the ground

floor to the top floor is in a ruinous state and the

structural health of the building cannot be restored

through repairing work. The learned Judge also noted

that at one stage, a notice under Section 411(2) of the

KMC Act, 1980 was issued by the Corporation. The

reports tend to indicate that the building was

constructed more than 100 years ago. Superficial

repairing works had been carried out from time to time

without considering the structural stability of the

building.

It was submitted before the learned Single Judge

on behalf of the Corporation that it has decided to

invoke Section 412A of the KMC Act declaring the

building as a "condemned building".

On the basis of the reports filed by the aforesaid

Officers of the Corporation, the learned Judge

concluded that the structural stability of the building

is such that the same cannot be restored even after

repairing and, accordingly, the learned Judge directed

the Corporation "to take prompt necessary steps to

take the follow up actions consequent to invocation of

Section 412A of the Act and ensure that the inmates of

the building are removed at the earliest to avoid loss of

valuable life and property".

Being aggrieved by the aforesaid order, the writ

petitioners have come up by way of this appeal.

Appearing for the appellants, Mr. Bhattacharya,

learned Senior Counsel submitted that following the

Division Bench order dated December 8, 2021, passed

in MAT 799 of 2021, the appellants did all necessary

repairs to the building and the building is structurally

completely stable. Just because a building is more

than 100 years old, it does not follow that the building

becomes structurally unstable. Learned Senior

Counsel says that the reports filed by the aforesaid

Officers of the Corporation were so done after a mere

visual inspection of the building in question. It cannot

be said with any degree of certainty that the building

is structurally unstable only by conducting visual

inspection. Technical inspection has to be carried out.

We see some logic in the submission made by

learned Senior Counsel.

Mr. Ghosh, learned Senior Counsel representing

the Corporation, in his usual fairness, says that he

cannot possibly have any objection if the Court calls

for a report regarding the structural stability of the

building in question from an independent person.

Accordingly, we request the Learned Registrar,

Original Side, to appoint an empanelled engineer of

this Court, to conduct necessary inspection of the

premises in question and to file a report before this

Court on the next date as regards the structural

stability of the building. Whatever inspection the

engineer will carry out, will be in the presence of the

representatives of the Corporation, the appellants as

also the owners. The report shall clearly mention

whether or not in its present condition, the building

poses any threat to the occupants thereof or to people

and property in the immediate vicinity thereof. The

report shall also mention if further repairs to the

building are necessary. The remuneration of the

engineer assessed at Rs.35,000/- (Rupees Thirtyfive

Thousands only) shall be paid by the appellants at the

first instance. The appellants, owners and all the

occupants of the building in question shall render full

cooperation to the engineer in carrying out this order.

List the matter four weeks hence on 2.3.2023.

The impugned order shall remain stayed until

further orders.

Department shall immediately place a copy of

this order before the Learned Registrar, Original Side.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)