Calcutta High Court
Gopal Lal Bhattar & Anr vs Kolkata Municipal Corporation & Ors on 14 May, 2009
Author: Tapen Sen
Bench: Tapen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :
The Hon'ble Justice Tapen Sen
14.05.2009
WP 1215 of 2008
Gopal Lal Bhattar & Anr.
Vs.
Kolkata Municipal Corporation & Ors.
Mr. A.K. Das Adhikari, Sr. Advocate for the petitioners
Mr. Barin Banerjee, Advocate for the KMC
The Court :- In this Writ Petition the petitioners pray for an Order
commanding upon the respondents to withdraw the retention charges in respect of
Demolition Case No. 49-B/IV/07-08 pertaining to the premises situated at 1, Mir Bahar
Ghat Street, Kolkata and which was initiated pursuant to an Order dated 31.01.2009
passed by the Special Officer (Building) and then, to fix the charges of retention on the
basis of the Circulars of the Building Department regarding Schedule of Fees and
Charges for the year 2007-08. The petitioners also pray for cancellation of the Notice
dated 13.07.2007 (Annexure P-1) issued under Section 401 of the Kolkata Municipal
Corporation Act, 1980 and to allow them to resume their constructions on the
aforementioned premises.
The facts which have been gathered from the pleadings are, that the
petitioners, along with their brother Natwar Lal Bhattar, since deceased, are the owners of
the aforementioned premises and the building is occupied by tenants. It is an old building
of more than 125 years and which was declared unsafe for residence in the year 1980.
Challenging the Notice declaring the building as unsafe, the tenants filed a suit being
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Suit No. 509 of 1980 before this Court and an Order was passed to the effect that the
tenants would be at liberty to get the building repaired at their own cost and means.
The further case of the petitioners is that in spite of such an order, the
tenants did not take any steps and in the meantime, the City Architect of the Kolkata
Municipal Corporation, issued a Notice dated 9th May, 1980 upon the owners requiring
them to demolish the stair case roof of the C.I. Shed over the roof situated on the South
Eastern Side said to be lying in a dangerous condition. Notwithstanding the issuance of
the said Notice, the Corporation could not take any steps towards demolition as a result
whereof, the condition of the building started deteriorating.
It is the further case of the petitioners that thereafter, on 01.12.1988, the
Corporation conveyed and informed the owners that the building stood in a dangerous
condition. It is stated that even thereafter on 13.10.2003 the Chief Inspector Building
Surveyor of the Corporation issued a Notice informing and directing the owners to
demolish the inside and outside verandahs at all floor levels and which were lying in
dangerous condition.
The petitioners have stated that on 09.04.2002, the Kolkata Municipal
Corporation, under the provisions of Section 411(1) declared the building as unsafe and
affixed a Notice to that effect meant for the occupiers, tenants and the public at large.
Thereafter, one Chandra Sekhar Gupta, a tenant, filed a Writ Petition before this Court
challenging the said Notice. It has been stated in paragraph 12, that a direction was
issued by the High Court upon the Executive Engineer (Borough-IV) for inspection of
the building along with the Assistant Engineer and to pass an order after giving an
opportunity of hearing to the relevant parties.
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Thereafter the Kolkata Municipal Corporation gave such an opportunity to
all the concerned persons pursuant to the said Order dated 10.04.2003 which was passed
in WP 16595(W) of 2002.
The petitioners have further stated that no steps were taken by the Kolkata
Municipal Corporation for implementing their own Order as a result whereof, the
petitioners sent a Representation on 19.08.2003 which was addressed to the respondents
and in which, they stated that they could be victimised if any untoward incident
occurred as the building was continuing to stand in a dangerous condition.
It is thereafter that on or about 08.10.2005, that the building plan was
sanctioned by the Kolkata Municipal Corporation for reconstructing the building in
question. However, on 13.07.2007, the petitioners were served with a Notice directing
them to stop all construction works on the premises in question. Two months thereafter
on 13.09.2007, a portion of the building collapsed and some tenants were injured and
admitted to hospital. Thereafter, by a letter dated 17.10.2007 the Executive Engineer,
Building Department, Borough Nos. IV and V sent a letter informing the petitioners that
the premises had been inspected and some portions therein had been found to be very old
and accordingly instructions were given to demolish the most unsecured portions so as to
avoid any casualties in future.
The further case of the petitioners is that thereafter on 27.12.2007 a Notice
under Section 400 of the Kolkata Municipal Corporation Act was issued vide Annexure
P-4 purporting to be in the nature of a direction upon the petitioners to demolish or alter,
within a fortnight, certain portions of the premises which were mentioned therein.
Thereafter by another Notice dated 04.01.2008 the petitioners were directed to appear
before the Special Officer (Building) for a hearing which was held on 11.01.2008. By an
Order dated 31.01.2008 the Special Officer (Building) disposed of the demolition
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proceedings vide Order running between pages 35 to 37 and by reason of the said Order,
persons responsible were allowed to retain the unauthorised construction subject to
payment of erection/re-erection charges under Section 400(1) and as per Rule 40(1)© of
the Building Rules and then, furnish an Affidavit declaring that they will not make any
further constructions whatsoever.
According to the further case of the petitioners, they were thereafter shocked
to receive a calculation pertaining to the retention fees (Annexure P-6 at page 34) by
reason whereof the Kolkata Municipal Corporation charged and/or proceeded to demand
fees for retention of unauthorised construction to the extent of Rs.78,00,940/-.
According to the case of the petitioners, the Municipal Authorities could not
have charged such an exorbitant amount in the garb of permission fees for regularisation
of unauthorised constructions.
Let it be recorded that an Affidavit dated 12/12/2008 has been filed in this
case duly sworn by one Krishna Kumar Bhattacharya, Executive Engineer ( C ) of the
Kolkata Municipal Corporation wherein, at para 14 infra therein, it has been stated that
pursuant to an Order passed by another Hon'ble Single Judge, a calculation was made
vide Annexure-"R-1" appended thereto. The said Annexure-"R-1" reads as follows :-
"Re: Premises No 1, Mirhahar Ghar Street
D/Case No. 49-D/IV/07-08
Charges for retention of unauthorised construction U/s.400(1) of K.M.C. Act 1980, as
per D/Sketch and order of S.O.(B) dt. 31.01.08 in respect of Budget year 2007-08
(i ) Retention fees - Rs. 28,92,257.00
(ii) 5% for 'C' Zone - Rs. 1,44,612.00
(iii) Fees for R-56,57 - Rs. 79,576.00
(iv) Surcharge - Rs. 59,934.00
(v) Sketch fees - Rs. 4,000.00
_________________________
Total Rs. 31,80,379.00
----------------------------------------
5 (Rupees Thirty one lakhs eighty thousand three hundred and seventy nine only) Sd/-
24/9/08 Draftsman (c )"
[ Quoted verbatim as it appears ] During the course of hearing of this Writ Petition, this Court, by its Order dated 3rd February, 2009, also directed the Municipal Corporation to file an Affidavit stating the manner on the basis whereof such calculations were arrived at. Thereafter, an Affidavit was filed which was duly sworn by one Kanak Kanti Sardar, a Civil Draftsman, on 13th February, 2009 in which calculation referred to above was repeated with explanations setting out different heads justifying the arrival of such an amount. The same are as follows:
" ( i )Charges for sanction of Mercantile Building for an area of 428.102 sq. meter = 112.6x6x428.102 (Normal sanction fee Rs. 112.6) per sq. meter Rs. 2,89,225.70 Retention charge for sanction of unauthorised construction for the area 428.102 sq. meter =
2.89,225.70 x 10 Rs. 28,92,257.00 ( ii ) 5% extra for "C" Zone area (i.e. Rs. 28,92,257 x 5 ) Rs. 1,44,612.00 100
(iii) Surcharge @ Rs. 140/- per sq. meter 140 x 428.102 Rs. 59.934.00
(iv) Sketch fees @ Rs. 2000 x 2 (for mercantile building) Rs. 4,000.00
(v) Violation of Rule 56 : Area 226.44 sq.m.
5.467 "
231.907 "
Violation of Rule 57 : 23.085 sq.M.
10.26 "
33.345 "
Total area of violation
of Rule 56 & 57 (231.907 sq. M.+
33.345 "
265.252 sq.M.
Retention charges for 265.252 sq.M
@ Rs.300/- per sq.M.
(265.252 x 300) Rs. 79,576.00
__________
Total Fees Rs 31,80,379.00 "
[ Quoted verbatim as it appears ]
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Let it be recorded that the aforementioned statement made by Kanak Kanti Sardar in his Affidavit referred to above is identical to Annexure-"R-1" save and except that in relation to the retention fees of Rs. 28,92,257/-, an explanation has been sought to be given to the effect that the charges for sanction of mercantile building for an area of 428.102 sq. mt., the normal fees is Rs. 112.6 per sq.mt. and the same comes to Rs. 2,89,225.70 p. This amount, has been sought to be multiplied by 10 (ten) for purposes of arriving at the figure of Rs. 28,92,257/-.
This became the bone of contention during the course of hearing on 17th February, 2009 when Mr. Saktinath Mukherjee, learned Senior Counsel appearing for the Petitioners, stated that they were liable to pay all other amounts mentioned above save and except the amount arrived at by applying the multiplier of 10 (ten), i.e. the sum of Rs. 28,92,257/-.
The submission of Mr. Mukherjee was based on the principle of law to the effect that a person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law and in the case of a statutory corporation, it has no power to do anything unless such activities are allowed by the Statute which creates it. Mr. Mukherjee had cited a judgment of this Court passed in the case of Scotts (P) Ltd. & Others -vs- Corporation of Calcutta and Others reported in 79 CWN 883 at page 889 wherein another Hon'ble Single Judge had quoted the observations made in another case reported in 40 CWN 17.
Mr. Mukherjee had also relied upon the judgment of the Hon'ble Supreme Court of India passed in the case of Ahmedabad Urban Development Authority -vs- Sharad Kumar Jayanti Kumar Pasawalla & Others reported in AIR 1992 SC 2038 in support of 7 his contention that in the absence of express provisions, the Authority cannot impose any fees.
Mr. Barin Banerjee, learned Counsel appearing for the Kolkata Municipal Corporation, had submitted that the Corporation, in the instant case, has full authority to levy such fees inasmsuch as after regularising the deviations, the Petitioners took the law in their own hands and proceeded to make unauthorised constructions. He further submitted that in any event, the plan that was sanctioned on 8.10.2005 and which has been referred to in paragraph-16 was valid for only 2 years from 10th December, 2005 to 10th December, 2007. He submits that the period 10.12.2007 has now lapsed and, therefore, the Petitioners should come with a fresh Application for sanction which will be considered on its own merits, but such fresh Application must be in the prescribed manner supported by necessary fees in connection therewith.
It has been stated at the Bar that after the order was passed by this Court on 17th February, 2009, the Petitioners have deposited the retention charges save and except the sum of Rs. 28,92,257/-. This, therefore, is now the contentious issue as on the one hand, the Petitioners assert that they are not liable to pay any amount arrived at by applying the multiplier of 10 (ten), Mr. Barin Banerjee, on the other hand, submits that the Petitioners are, in fact, liable to pay the said amount.
In order to appreciate the facts and circumstances involved, it would perhaps, at this stage, be useful to quote the Order dated 17th February, 2009. The same reads as follows :
"Pursuant to the Order passed by this Court on February 3, 2009, an Affidavit has been filed, duly sworn on February 13, 2009 by one Kanak Kanti Sarkar, a Civil Draftsman in the Building Department of the Kolkata Municipal Corporation, where, in 8 paragraph 6, the manner of calculation has been given justifying the total amount of Rs. 31,80,379/-.
Mr. Shaktinath Mukherjee, learned senior Counsel appearing on behalf of the Petitioners, in his usual fairness, states that the Petitioners are liable to pay the amounts mentioned therein save and except the amount which has been arrived at after applying the multiplier of ten and which comes to Rs. 28,92,257/-. According to Mr. Mukherjee, the action on the part of the concerned Municipal Authorities in applying the multiplier of ten is dehors the provisions of the Kolkata Municipal Corporation Act, 1980 and it cannot be on the basis of any Circulars and/or official documents.
Mr. Barin Banerjee, learned Counsel appearing on behalf of the Kolkata Municipal Corporation, states, with reference to the said Affidavit, that the fees and charges for retention of unauthorised construction are to be calculated by applying the multiplier of ten to the normal sanction fees for an area more than 300 sq.mts. Learned Counsel produces, for the perusal of this Court, a Booklet which gives the rates, taxes, fees and charges to be levied by the Corporation during the year 2007-08, but he is unable to pinpoint the statutory provision under the Kolkata Municipal Corporation Act, 1980 justifying the application of the multiplier of ten.
Mr. Mukherjee, learned Senior Counsel appearing for the Petitioners, in the meantime, relies upon a Judgment of the Hon'ble Supreme Court, passed in the case of Ahmedabad Urban Development Authority -vs- Sharad Kumar Jayanti Kumar Pasawalla & Ors. and reported in AIR 1992 SC 2038, in support of his contention that in the absence of express provisions, the Authority cannot impose such fees.
Mr. Mukherjee also relies upon a Judgment of this Court passed in the case of Scotts (P) Ltd. & Ors. -vs- Corporation of Calcutta & Ors., and reported in 79 CWN 883, at page 889, 9 wherein another Hon'ble Single Judge of this Court, Justice A.N.Sen, had quoted the observations made in another case which is reported in 40 CWN 17. The same reads as follows :
"12. In the case of Maniuddin Bepari v. The Chairman of the Municipal Commissioners, Dacca, 40 C.W.N. 17, R.C. Mitter J. observed at pp. 18-19 as follows :
"It is a fundamental principle 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 the 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 statute which creates it. In the Municipal Act of 1884, I do not find any power given to the Municipality to allow the use of a public thoroughfare from day to day for any other purposes than a public pathway. It has no doubt the power to divert a road and if it diverts it, a portion of the old road which is no longer necessary to be used as a road is land for all intents and purposes and as I have stated, the Municipality can deal with that land, which is no longer used as road, under the provisions of sec.
34."
Mr. Banerjee, learned Counsel appearing for the Kolkata Municipal Corporation, states that following the aforementioned Judgment, another Hon'ble Single Judge had delilvered a Judgment on September 1, 2006 in WP No. 568 of 2006, allowing the Writ Petition after holding, in paragraph 30 thereof, that even the building permit fees cannot be charged at the penal rate as the Municipal Authority is not authorised under the statute to realise such fees at the penal rate for regularising any unauthorised construction. The said Judgment is reported in 2006(4) CHN 499. He further states that an Appeal has been filed against the said Judgment which is pending adjudication before the Division Bench.
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In view of the aforementioned submissions made, this writ petition will be heard. Since the parties have already exchanged Affidavits, no further Affidavits are required to be called for. The matter shall appear for arguments and final disposal, if possible, at the stage of motion itself, on March 20, 2009. In the meantime, till March 22, 2009 the Petitioners shall not carry on any further construction activity. In the meantime, the Petitioners must go on paying the amounts described in Paragraph 6 of the Affidavit dated February 13, 2009 referred to above save and except the amount arrived at by applying the multiplier of ten.
All parties concerned are to act on a photostat signed copy of the minutes of this order on usual undertakings."
[ Quoted Verbatim as it appears ] It would be evident upon reading the aforementioned Order dated 17th February, 2009 that Mr. Banerjee had produced, for the perusal of this Court, a Booklet which gave the rates, taxes, fees and charges, but he was unable to pinpoint the exact statutory provisions under the Kolkata Municipal Corporation Act, 1980 by which the Statute allowed retention charges to be calculated by adopting or applying the multiplier of ten. In fact, Mr. Barin Banerjee had very fairly submitted on the earlier date also, upon a reference to the Statute, that there was no specific provision by which the Statute laid down or permitted the applicability of such a multiplier of t en. The only reference to the multiplier of ten which both the learned Counsel have pointed out is with reference to a Schedule of fees brought on record, vide Annexure-"P-8" in the nature of a Circular, being Circular No. 01/2007-08, apparently issued on 3rd April, 2007. Upon perusal of the said Circular and specially, the note appearing under Table-7 after the heading "Fees for Retention of Unauthorised Structure U/S 401" at running page 44 of the Writ Petition, we find, for the first time, that for such unauthorised retention, the floor area and height of the building beyond the sanctioned limit, if permitted, shall be charged at 5 times the 11 normal fees of land area up to 300 sq. meter and 10 times the normal fees for land area of more than 300 sq. meters. In the instant case, and upon reading the manner of calculation quoted above, it will be evident that the area in question is 428.102 sq. meter and therefore, according to Mr. Banerjee, the multiplier of 10 has been correctly applied.
This Court has no hesitation in rejecting the contentions of Mr. Banerjee. A mere Circular cannot take the shape of a Statute. Unless a Statute provides such multiplier to be applied, the Kolkata Municipal Corporation cannot apply such a multiplier and their action must be held to be penal in nature. Since nothing was shown to this Court that the Statute (Kolkata Municipal Corporation Act ) permitted the applicability of the multiplier of 10, the judgments referred to above apply with full force and consequently, the action of the Corporation runs de-hors the provisions of the Kolkata Municipal Corporation Act because the said Act does not speak of imposition of fine to the extent of 5 or 10 times as being a condition precedent for allowing unauthorised retention charges and for taking fees therefor.
Mr. Banerjee, learned Counsel appearing for the Kolkata Municipal Corporation then submitted that so far as this building is concerned, the sanction was made under Rule 3(2)(e) and, since this is not a new building, the Statute will be in terms of the said Rule 3(2)(e). He submits that therefore, this particular sanction was given only for two years and not for five years, as has been laid down in Rule 15.
This Court is not inclined to accept such a submission because whenever a sanction is referred to, it always refers to sanction of a building plan. When the Statute itself permits a minimum period in the validity of the sanction as being 5 (five) years, this Court does not find any authority on the Kolkata Municipal Corporation even under Rule 3(2)(e), which empowers them to curtail the said minimum period from five years to two years.
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Once the building plan is sanctioned, the same must necessarily be deemed to be valid for five years and therefore, the attempt on the part of Mr. Banerjee to submit that if the Petitioners file a fresh building plan since the one sanctioned earlier has already lapsed, is a submission which, in the opinion of this Court, attempts to subjecting the Petitioners to a state of utter harassment. This cannot be appreciated by a Court of equity. If the sanction was made on 8th October, 2005, then the same will be deemed to be valid till 08th October, 2010. In that view of the matter, no fresh building plan is required to be submitted nor fresh fees therefor is required to be paid to the Kolkata Municipal Corporation.
This Court is, therefore, of the view that the attempt on the part of the Kolkata Municipal Corporation in attempting to create a windfall for themselves by applying the multiplier of ten is nothing but a sheer incompetent strategy of demanding illegal fees. Such an action must, therefore, not only be deprecated by this Court but must also be struck down as being malicious, harassing in nature, litigious in character compelling persons to undertake the rigours of litigation. Since it is admitted at the Bar that the Petitioners had paid the entire amount demanded (save and except the aforementioned amount of Rs. 28,92,257/-), this Court, having held that the said amount is an illegal demand, proceeds further to observe that the Corporation will not and shall not withhold the attempt of the Petitioners in proceeding to make their constructions in accordance with the plan sanctioned on 8th October, 2005 which will be deemed to be valid till 08.10.2010 for reasons stated above.
The Writ Petition is allowed, but in view of the unwarranted litigation imposed upon the Petitioners, a cost of Rs. 10,000/- is imposed upon the Corporation.
After the aforementioned order was dictated in Court, Mr. Barin Banerjee, learned Counsel appearing for the Kolkata Municipal Corporation, prayed for stay of the 13 operation of the Order. Having considered such prayer and having also considered the fact that the building is in a dilapidated condition as was certified by the Corporation themselves, this Court refuses to grant stay as it will endanger human lives.
Let a xeroxed certitifed copy of this Judgment be given to the parties, if applied for, upon compliance of all formalities.
( TAPEN SEN, J ) ANC/rnc.
A.F.R.