Calcutta High Court
Gopal Lal Bhatter & Another vs Kolkata Municipal Corporation & Ors on 17 February, 2009
Author: Tapen Sen
Bench: Tapen Sen
WP No. 1215 of 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
GOPAL LAL BHATTER & ANOTHER Petitioner/Applicant
Versus
KOLKATA MUNICIPAL CORPORATION & ORS. Respondent
For Petitioner : MR. SHAKTI NATH MUKHERJEE, SR.ADVOCATE For Respondent : MR. BARIN BANERJEE, ADVOCATE BEFORE:
The Hon'ble JUSTICE TAPEN SEN Date : 17th February, 2009.
The Court :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 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, 2 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, 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 3 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 delivered a Judgment on September 1, 2006 in W.P. 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.
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.
(TAPEN SEN, J.) tk