Calcutta High Court
Bodhi Art Limited & Anr vs Kolkata Municipal Corporation & Ors on 16 April, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Constitutional Jurisdiction
(Original Side)
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prasenjit Mandal
A.P.O.T. No. 361 of 2009
A.P.O. No. 268 of 2009
W.P. No. 364 of 2009
Bodhi Art Limited & Anr.
Versus
Kolkata Municipal Corporation & Ors.
For the Appellants: Mr. Saktinath Mukherjee,
Mr. Surojit Mitra,
Mr. Amiya Narayan Mukerjee,
Mr. Dip Narayan Mukerjee.
For the Respondents: Mr. L.C. Bihani,
Mr. N.C. Bihani.
Heard on: 06.04.2010.
Judgment on: 16th April, 2010.
Bhaskar Bhattacharya, J.:
This Mandamus-Appeal is at the instance of the unsuccessful writ- petitioners and is directed against the order dated 31st August, 2009 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ- application filed by the appellants in which the appellants prayed for mandamus directing the Kolkata Municipal Corporation Authorities to handover the internal house drain plan for constructing the internal house drain and connecting the said internal house drain with the Kolkata Municipal Corporation main drainage 2 line through Alipore Park Place, Kolkata and also for quashing the alleged illegal demand of Rs.1,02,56,014/- as claimed in the letter dated 7th April, 2009 being Annexure P-4 to the said writ-application.
Being dissatisfied, the writ-petitioners have come up with the present mandamus-appeal.
The facts giving rise to filing of the writ-application out of which the present mandamus-appeal arises may be summed up thus:
(a) The appellant No.1 is the owner of the property being Premises No.9A, Alipore Park Place, Kolkata-27 (hereinafter referred to as the said property). The house drain of the old building was connected with the Corporation drain at Alipore Park Place which was at a distance of 130 metres.
(b) In order to construct a new building after demolishing the existing one, the appellant No.1 on 25th October, 2004 submitted an application for sanction of the building plan before the Kolkata Municipal Corporation.
(c) The Kolkata Municipal Corporation Authorities being satisfied with the requirement of law, sanctioned the said building plan for construction of a Ground plus 27 storied building vide Building Permit No.2005090006 dated 2nd May, 2005.
(d) After obtaining the said sanctioned plan, the appellants, according to the provisions of law and the conditions contained in the said sanctioned plan, by 3 a letter informed the Kolkata Municipal Corporation Authorities for commencement of construction of the building and subsequently, the structural construction of the said building had already been completed.
(e) In order to obtain the assistance and service of the internal house drainage connection and for sanction of the internal house drain plan from the Kolkata Municipal Corporation, the appellants appointed an authorised plumber of the Kolkata Municipal Corporation and according to the advice of the said plumber, the appellants prepared the internal house drainage plan and the same was submitted before the Kolkata Municipal Corporation for sanction on 6th November, 2008.
(f) On 18th February, 2009, the appellant deposited a sum of Rs.2,05,684/- as inspection fee on account of internal house drain inspection fee and although the said plan was submitted on 6th November, 2008 and the internal house drain inspection fee was deposited on 18th February, 2009, no internal house drainage plan had been sanctioned as a result, the appellants were not in a position to commence the work of internal house drain.
(g) In such circumstances, by a letter dated 3rd April, 2009, the appellants requested the Commissioner, Kolkata Municipal Corporation to look into the matter and to take necessary step so that the appellants could commence construction of the internal house drain plan according to the approved internal house drain plan.4
(h) By a Memo dated 7th April, 2009, the Executive Engineer (Drainage Department) (Civil), Borough-IX informed the said plumber that although the necessary documents for getting the permission of the internal house drain connection were submitted before the Kolkata Municipal Corporation, yet, as per the report of the Drainage Department of the Kolkata Municipal Corporation, the internal house drain connection of the said premises should be at brick sewer at Raja Santosh Road at a distance of 680 meters. It was further stated that, as huge quantity of sewer water were coming from the premises of vast area of land it could not be passed through the existing Corporation sewer line and in such circumstances, the appellants were directed to deposit a sum of Rs.1,02,56,014/- including restoration charges fixed by the Borough-IX Office of the Kolkata Municipal Corporation.
(i) According to the writ-petitioners, the aforesaid demand of Rs.1,02,56,014/-
was illegal and not tenable in the eye of law as the Kolkata Municipal Corporation Act or the Rules and Regulations framed thereunder did not authorise the Corporation to realise any amount from the owner of a house for the purpose of making construction of any drainage beyond the premises of such owner.
The writ-application was opposed by the Kolkata Municipal Corporation thereby contending that upon inspection it was observed that there was a brick sewer of 7' diameter running from 7, Raja Santosh Road and which discharged effluent at the Chetla Boat Canal and it was recommended, after considering the combined discharge of effluent including the effluent of the premises in question, 5 to construct a 500 mm. diameter house drain by laying down of new sewer line through the Alipore Park Place and Alipore Park Road for a stretch of about 680 meters and it was stated that an amount of Rs.1,02,56,014/- was charged strictly in accordance with the cost of the house drain connection. It was further pointed out that the existing sewerage system is inadequate as it was only 12" in diameter.
The learned Single Judge, however, accepted the contention of the Kolkata Municipal Corporation by holding that Section 289 of the Kolkata Municipal Corporation Act authorised the Corporation to compel the owner of the building to make payment for the construction which is required for effective drainage system in the locality and, thus, dismissed the writ-application.
Being dissatisfied, the writ-petitioners have come up with the present mandamus-appeal.
Mr. Saktinath Mukherjee, the learned senior advocate appearing on behalf of the appellants, at the very outset, submitted before us that neither the Kolkata Municipal Corporation Act nor the Rules and Regulations framed thereunder authorise the Municipal Authority to claim any amount from the owner of a building for the purpose of making construction of drainage or sewerage system which is beyond the land and building of the owner and, thus, the Municipal Authority acted without jurisdiction in demanding Rs.1,02,56,014/- for the purpose of construction of the drainage system in the 6 Alipore area which is not within the premises of the appellants. Mr. Mukherjee, in this connection, places strong reliance upon a Division Bench decision of this Court in the case of Asian Leather Limited & Anr. vs. Kolkata Municipal Corporation & Ors. reported in 2007(3) CHN 476 in support of his contention that nothing can be implied for justification of realisation of any amount either as tax or as fees which is not specifically authorised under a law.
Mr. Bihani, the learned senior advocate appearing on behalf of the Kolkata Municipal Corporation Authorities, after taking instruction from his client informed us that no Regulation has been enacted in terms of Section 289 of the Act for realisation of any amount from the owner of a building for construction of anything in the area which is not covered within the building.
Therefore, the sole question that arises for determination in this appeal is whether the learned Single Judge was justified in dismissing the writ-application by taking aid of Section 289 of the Kolkata Municipal Corporation Act.
To appreciate the question involved herein, it will be profitable to refer to the provisions contained in Section 289 of the Act which is quoted below:
"289. Right of owner or occupier of premises to drain into municipal drain.⎯(1) Subject to such regulations as the Corporation may make in this behalf, the owner or occupier of any premises having a private house-drain may apply to the Municipal Commissioner to have his house- drain made to communicate with the municipal drains and thereby to discharge foul water and surface water from those premises: 7
Provided that nothing in this sub-section shall entitle any person⎯
(a) to discharge directly or indirectly into any municipal drain any trade effluent from any trade premises except in accordance with the provisions made under this Act or any liquid or other matter the discharge of which into municipal drains is prohibited by or under this Act or any other law for the time being in force; or
(b) where separate municipal drains are provided for foul water and for surface water, to discharge directly or indirectly⎯
(i) foul water into a drain provided for surface water, or
(ii) except with the permission of the Municipal Commissioner, surface water into a drain provided for foul water; or
(c) to have his house-drain made to communicate directly with a storm- water overflow main.
(2) Any person desirous of availing himself of the provisions of sub-
section (1) shall give to the Municipal Commissioner notice of his proposals, and at any time within one month after receipt thereof the Municipal Commissioner may grant permission or by notice to him refuse to permit the communication to be made, if it appears to him that the mode of construction or condition of the house-drain in such that the making of the communication would be prejudicial to the drainage system, and for the purpose of examining the mode of construction and condition of the house- drain he may, if necessary, require it to be laid open for inspection. (3) The Municipal Commissioner may, if he thinks fit, construct such part of the work necessary for having a private house-drain made to communicate with a municipal drain as is in or under a public street and in such a case, the expenses incurred by the Municipal Commissioner shall be paid by the owner or occupier of the premises in advance in accordance with such regulations as may be made by the Corporation in this behalf." 8
At the very outset, we should bear in mind the provision contained in Article 265 of the Constitution of the India according to which no tax shall be levied or collected except by authority of law.
At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory Corporation, it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the Statutes, which creates it. (See: Manimuddin Bepari vs. the Chairman of the Municipal Commissioner, Dacca reported in 40 CWN 17).
In the subsequent case of Ahmedabad Urban Development Authority vs. Sharad Kumar Jayant Kumar Passawalla reported in A.I.R. 1992 S.C. 2038, the Supreme Court made the following observation:-
"....it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power."9
Bearing in mind the aforesaid principles and after going through the provisions contained in Section 289 of the Act relied upon by the learned Single Judge, we find that under sub-section (3) of Section 289 of the Act, the Municipal Commissioner may, if he thinks fit, construct such part of the work necessary for having a private house-drain made to communicate with a municipal drain as is in or under a public street and in such a case, the expenses incurred by the Municipal Commissioner shall be paid by the owner or occupier of the premises in advance in accordance with such regulations as may be made by the Corporation in this behalf.
As indicated earlier, Mr. Bihani, the learned senior advocate appearing on behalf of the Corporation, has informed us that till date no such Regulation in terms of Section 289 of the Act has been made by the Corporation authorising it to recover the expenses made by it for having a private house-drain made to communicate with municipal drain as is in or under a public street and in such circumstances, the Municipal Authority acted without jurisdiction in demanding the amount mentioned in the Annexure P-4 to the writ-application. The learned Single Judge, as it appears from the order impugned, while interpreting sub- section (3) of Section 289 overlooked the phrase "in accordance with such regulations as may be made by the Corporation in this behalf" appearing therein and thus, committed substantial error of law in permitting the Commissioner to realise the amount from the writ-petitioner for a purpose not authorised by the Regulation.
10
We, therefore, quash the Annexure P-4 to the writ-application and direct the respondents to handover the internal house drain plan for constructing the internal house drain and connecting the said internal house drain with the Kolkata Municipal Corporation main drainage line through Alipore Park Place, Kolkata within two months from today.
The appeal is, thus, allowed. The order impugned is set aside and the writ-application filed by the appellants is allowed to the extent indicated above.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prasenjit Mandal, J.)