Calcutta High Court
Malati Saha vs The Kolkata Municipal Corporation And ... on 29 January, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-3
ORDER SHEET
APO/188/2023
With
WPO/363/2023
IA NO: GA/1/2024
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
MALATI SAHA
VS.
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE M.V. MURALIDARAN
Date : 29th January, 2024.
Appearance:
Mr. Ranajit Chatterjee, Adv.
Mr. D.R. Mukherjee, Adv.
Mr. Arijit Dey, Adv.
...for the petitioner
Mr. Alak Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
... for KMC
Mr. Satyajit Talukdar, Adv.
Mr. Avishek Guha, Adv.
Ms. Akansha Chopra, Adv.
...for the KMDA & respondent no.5
Ms. Urmila Chakraborty, Adv.
Mr. Ram Nath Dutta, Adv.
...for respondent no.6
Mr. Sayak Ranjan Ganguly, Adv.
Ms. Srijani Ghosh, Adv.
Ms. Indrani Majumder, Adv.
...for the respondent no.8
The Court: This appeal is directed against a judgment and order
dated September 20, 2023 whereby the writ petition of the appellants
herein being WPO No. 363 of 2023, was dismissed by a learned Judge of
this Court.
The disputes between the parties pertain to a shopping complex
popularly known as Dakshinapan Shopping Complex in South Calcutta.
Three shop rooms in that complex being F-47, F-48 and F-49, on the first
floor, were originally allotted to one UP State Brassware Corporation
Limited. The complex originally belonged to the Calcutta Improvement
Trust. Upon merger of Calcutta Improvement Trust with Kolkata
Metropolitan Development Authority (in short, KMDA), KMDA has
become the owner of the shopping complex.
UP State Brassware Corporation Limited went into liquidation. It
was an Uttar Pradesh State Government Undertaking. Upon its
liquidation, its assets and liabilities were passed on to another
Government of Uttar Pradesh Undertaking by the name of Uttar Pradesh
Export Corporation Limited. Accordingly, the aforesaid three shop rooms
were occupied by UP Export Corporation Limited which is the respondent
no.7 in this appeal. We are told that UP Export Corporation Limited has
been renamed as UP Handicrafts Development and Marketing
Corporation Limited (in short, UP Handicrafts) and fresh certificate of
incorporation has been issued by the competent authority.
The actual dispute pertains to a corridor/passage measuring
approximately 16 sq. metre between shop rooms F-47 and F-48. It
appears that the allottee of the said shop rooms had requested Kolkata
Improvement Trust (in short, KIT) to permit it to enjoy the said corridor
for security reasons since the said shop rooms were located at the
extreme corner of that passage. The concerned committee of the
erstwhile KIT, adopted a resolution on May 6, 1995 to allow UP Export
Corporation Limited (now UP Handicrafts) to use the said corridor
without hampering ventilation and lighting subject to payment being
made. It transpires that the demand for occupational charge raised by
KIT on UP Export Corporation was not paid. However, we are not
concerned with the same.
The appellants approached the learned Single Judge with the
grievance that UP Handicrafts has blocked the corridor/passage in
question by installing rolling shutters and iron grills. No permission
from the relevant authority was taken for the same. The same has
resulted in interfering with ventilation and lighting insofar as the writ
petitioners are concerned. Further, the constructions put up by UP
Handicrafts are blocking the exit from the building in question and in
case of a fire accident, it may well cause casualties.
Learned advocate for UP Handicrafts says that the installations,
which are being complained of by the present appellants, have been there
since 1994. This is disputed by learned advocate for the appellants.
The learned Judge called for a joint inspection report from KMDA
and Kolkata Municipal Corporation (in short, KMC). Such report was
filed. The learned Judge perused such report and found that there is no
mention about any unauthorised construction at the subject premises.
The learned Judge dismissed the writ petition with the following
observations:
"It appears that the petitioners are aggrieved by the act of
the respondent authorities in permitting the private respondent
to enjoy the corridor space and seeks removal of the
encroachment. Allegation that the Building rules have been
violated does not appear to be proper.
Dispute regarding encroachment and its regularization
ought to be resolved before the competent forum. High Court
sitting in the writ jurisdiction is not the competent authority to
decide upon encroachment.
In view of the above, no relief can be granted to the
petitioners in the instant writ petition. Writ petition fails and is
hereby dismissed.
It will be open for the petitioners to seek remedy before the
appropriate forum in accordance with law, if so advised."
Being aggrieved, the writ petitioners are before us by way of this
appeal.
Mr. Chatterjee, learned advocate appearing for the appellants, drew
our attention to some of the provisions of the Kolkata Municipal
Corporation Building Rules, 2009 and argued that it is mandatory to
keep a hindrance-free corridor in a shopping complex, of the
specifications mentioned in the Building Rules. Such provisions have
been flouted in the present case. It is the duty of KMC to take
appropriate steps in the matter.
We find from the annexures to the stay application that
representations have been made by the appellants through their learned
advocate, addressed to amongst others, the Municipal Commissioner.
One such representation dated January 23, 2023 is at page 69 of the
stay petition.
We are of the view that it will not prejudice anybody if KMC
disposes of the aforesaid representation of the appellants made through
their learned advocate.
Accordingly, we direct the Municipal Commissioner or any
responsible officer authorised by him to dispose of the appellants'
representation dated January 23, 2023, in accordance with law and the
applicable rules and regulations, by a reasoned order, within a period of
six weeks from the date of communication of this order by the appellants
to the Municipal Commissioner, after giving an opportunity of hearing to
the appellants, UP Handicrafts and any other concerned party or their
authorised representatives. If the officer concerned is of the opinion that
the Fire Services Authority should be heard, notice of hearing could also
be issued to the Fire Department. The order to be passed by the
Municipal Commissioner or the officer authorised by him shall be
communicated to the parties within a week from the date of the order. If
the Municipal Commissioner finds that there is merit in the grievance of
the appellants herein and UP Handicrafts has done something contrary
to the provisions of the KMC Act or the rules and regulations framed
thereunder, appropriate remedial steps will be taken by him in
accordance with law.
Mr. Chatterjee submits that repeatedly his clients have been
asking for certified copy of the concerned building plan from the
concerned authority since March, 2023. The concerned authority should
supply a certified copy of such plan to the appellants upon payment of
applicable charges.
The appeal and connected application are accordingly disposed of.
Since we have not called for affidavits, the allegations in the stay
petition are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J)
(M.V. MURALIDARAN, J.)
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