Calcutta High Court
Eskag Sanjeevani Pvt. Ltd. & Anr vs Kolkata Municipal Corporation & Ors on 27 August, 2019
Author: I. P. Mukerji
Bench: I. P. Mukerji, Md. Nizamuddin
OD-8
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO 434 of 2014
WITH
APO 455 of 2014
WP 251 of 2014
ESKAG SANJEEVANI PVT. LTD. & ANR.
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
ALONG WITH CONNECTED APPEALS
(APPELLATE SIDE MATTERS)
FMA No. 1638 of 2014
(MAT 231 of 2007)
Kulti Municipality
Versus
Durgadas Dutta & Ors.
FMA 558/2015
(MAT 1655 of 2014)
Anjan Chakraborty
Versus
The Kolkata Municipal Corporation & Ors.
FMA 3657/2014
(MAT 1689 of 2014)
The Kolkata Municipal Corporation
Versus
Ajit Kumar Mohalanobis & Ors.
FMA 4331/2014
(MAT 1654 of 2014)
Dr. Shankar Vhore
Versus
Sri Dibyendu Dhar & Ors.
FMA No. 3658 of 2014
(MAT 1653 of 2014)
The Kolkata Municipal Corporation & Ors.
Versus
Smt. Rita Dey & Ors.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 27th August, 2019.
Appearance:
Mr. L. K.Gupta, Sr. Adv.
Mr. Debdutta Sen, Adv.
Mr. M. K. Seal, Adv.
...for the appellant in APO No. 434 of 2014.
2
Mr.Raghunath Chakrabory, Adv.
Mr. M. Ahmed, Adv.
..for the appellant in FMA 558/2015
Mr. Biswajit Mukherjee, Adv.
..for the appellants In FMA 4331/2014
Mr. Ashok Banerjee, Sr. Adv.
Mr. Alok Ghosh, Adv.
Mr. Achinta Banerjee, Adv.
Mr. Fazlul Haque, Adv.
Mr. Subhrangsu Panda, Adv.
..for KMC as Appellant in APO 455 of 2014 and
FMA 3657 of 2014 (MAT 1689 of 2014), FMA 3658 of 2014
(MAT 1653 of 2014) and as respondents in the other appeals.
Re. APO 434 of 2014 with APO 455 of 2014, WP 251 of 2014:-
The Court: The premises involved is numbered as 48, Khirod Vidya Vinod Avenue, Baghbazar, Kolkata-700003. It is on 8.1 cottahs of land. Initially, the building was three storeyed. The appellant Eskag Sanjeevani constructed two illegal storeys. One was demolished under orders of court. Four storeys now remain. The allegation of Kolkata Municipal Corporation was that there was substantial illegality in the construction of this building. Demolition proceedings were started by them under Section 400(1) read with Section 416 of the Kolkata Municipal Corporation Act, 1980. By an order dated 16th July, 2013 passed by the Special Officer, Building, the Corporation refrained from passing a demolition order. Subject to compliance of conditions specified in that order by Eskag., they were allowed to retain the building upon payment of retention charges, subsequently asessed to be about Rs.1.74 crores and observance of the conditions mentioned in the said order. It was stated therein that in default of payment of this retention fee, the building was liable to be demolished.
The instant writ application (WP 251 of 2014) was preferred by Eskag challenging the imposition of this retention fee. This was the substantial relief claimed.
We have carefully scrutinized the writ petition. We find that the breath and scope of the petition was confined to this issue only. 3 However, this court heard out this writ application along with several others and by a common judgment and order dated 25th July, 2014, inter alia, directed demolition of the building.
Mr. Gupta, learned senior advocate appearing for the appellant Eskag,(APO 434 of 2014) cited the decisions in Siddu Venkappa Devadiga-Versus- Smt. Rangu S. Devadiga & ors., reported in (1977) 3 SCC 532 and Ishwar Dutt-Versus-Land Acquisition Collector & Anr., reported in AIR 2005 SC 3165 and Union of India-Versus-Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148.
The law is very clear that the adjudication in a legal proceedings is confined to the issues of fact and law arising out of the pleadings. The court cannot transgress this boundary and adjudicate upon issues which were not raised therein.
In the affidavit-in-opposition filed by the Corporation they did not for a moment challenge this regularization order, but only confined themselves to their claim for the retention fee.
In argument, Mr. A.K. Banerjee, learned senior advocate appearing for the Corporation, also mentioned that the payment of retention fee was an inviolable condition attached to the decision of the Corporation to retain the building. Either the fee was paid in full and the building retained or the Corporation had the right to proceed with its demolition. There was no question of remission of the retention fee.
In fact, in the appeal preferred by the Corporation (APO 455 of 2014) they have challenged the order of the learned single judge directing demolition. In ground no. 8 they have stated that "the learned judge failed to appreciate that the constructions so far made are not so grave and serious and even the infractions of building rules do not offend neither any inmate nor any public in general and moreover, there is no complaint from any corner against such change of construction alleged to have been made by anybody at the premises in question." 4
In those circumstances, we have no hesitation to hold that the learned single judge went beyond the scope of enquiry, when his lordship passed an order of demolition of the building.
As far as the retention fee is concerned, Mr. Gupta was candid enough to submit that his client is not shirking their responsibility to pay it. But the demanded amount of Rs.1.74 crore was too excessive. The amount was unreasonable and needed to be substantially reduced. His client was agreeable to pay Rs.1 crore.
We have also noted that, according to Mr. Banerjee, either the entire fee was paid and the order of retention enjoyed by the appellant or his client would proceed to demolish the building.
According to us, a public body cannot take this type of stand. When a condition of this kind has been imposed, the authority must be willing and able to consider the reasonableness of its action when called upon to do so by this court. We are not saying that the Corporation should waive the retention fee or substantially remit it.
We are of the view that the Corporation should consider the case of the appellant for reduction of penalty in accordance with law by giving them a hearing and by passing a reasoned order. We entrust this duty to the Commissioner, Kolkata Municipal Corporation, who shall pass an order by hearing the interested parties within three months of communication of this order subject to the condition that the appellant Eskag shall deposit a sum of Rs.1 crore in cash with the Corporation by 27th September, 2019 and furnish a bank guarantee in favour of the Kolkata Municipal Corporation for the balance retention fee claimed by the Corporation to the satisfaction of the Commissioner. The Corporation shall have the right to encash the bank guarantee in accordance with the order to be passed by the Commissioner.
Both the appeals (APO 434 of 2014 and APO 455 of 2014) are disposed of by this common order.
5Re. MAT 1638 of 2014, FMA 558 of 2015, FMA 3657 of 2014, FMA 3658 of 2014, FMA 4331 of 2014, MAT 1653 of 2014, MAT 1655 of 2014, MAT 1684 of 2014, MAT 1689 of 2014 (Appellate Side Matters):-
An anomalous situation has arisen in the appeals (APO 434 of 2014 and APO 455 of 2014), which we decided earlier today. The regularization order in respect of the premises 48, Khirod Vidya Vinod Avenue was not under challenge. The appellant writ petitioner Eskag had only challenged the retention fee imposed by the Corporation in their regularization order dated 16th July, 2013. We disposed of the appeal of Eskag and one made by the Corporation (APO 455 of 2014) earlier today by directing reconsideration of the retention fee imposed, as demolition was not under challenge at all.
However, in this batch of matters, the writ petitioners moved writ applications before this court challenging the illegal construction and the self-same regularization order dated 16th July, 2013. In those writs, by the self-same common impugned judgment and order dated 25th July, 2014, this court directed demolition.
The anomaly is that if this court's order in respect of Eskag is to be carried out, the building has to remain. The Corporation cannot realise retention fee out of a demolished building.
If the appellants in the instant appeals fail then the said impugned order dated 25th July, 2014 has to be carried out.
The fact is that the writ petitioners who had initiated these proceedings before the court below have not showed up before us. The Supreme Court has categorically laid down in Muni Suvrat Swami Jain S.M.P. Sangh-Versus- Arun Nathuram Gaikwad & Ors., reported in AIR 2007 Supreme Court 38 that it is the discretion of the Corporation whether to demolish or not to demolish a deviant building. An order of demolition was only held to be mandatory where the municipal authority had passed an order of demolition (see State of Mysore-Versus-C.R. 6 Seshadri & Ors., reported in AIR 1974 SC 460). However, in Dipak Kumar Mukherjee -Versus- Kolkata Municipal Corporation & Ors., reported in (2013) 5 SCC 366 the Supreme Court expressed an opinion that warranted demolition of illegal constructions without any right of regularization.
In this case, because of the extraordinary situation, we are minded to remand the matter back to the Kolkata Municipal Corporation to decide whether in the facts and in the circumstances of the case, they would pass a demolition order.
We direct the Commissioner to decide this issue in accordance with law after hearing the parties and by a reasoned order within six months from communication of this order. It is highly desirable that the issues raised in these appeals and the appeal relating to Eskag are decided together one after another.
All the appeals are disposed of by this common judgment and order.
(I. P. MUKERJI, J.) (MD. NIZAMUDDIN, J.) cs