Calcutta High Court
Merlin Developers & Ors vs Kolkata Municipal Corporation & Ors on 1 April, 2016
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WP No. 734 of 2009
Merlin Developers & Ors.
Versus
Kolkata Municipal Corporation & Ors.
Before: The Hon'ble Justice SUDIP AHLUWALIA
Date of CAV: 9th March 2016
Date of Judgment: 1st April 2016
For the petitioners - Mr. Jishnu Choudhury, Advocate
For the KMC/Respondents - Mr. Alok Ghosh, Advocate
Mr. Swapan Kr. Debnath, Advocate The Court -A multi-storied building was constructed by the writ petitioners at premises no. 15, Kabithirtha Sarani, Borough IX, Kolkata. Initially a temporary sanction and drainage connection being No. 530/2007-08 dated 17th August 2007 was given to the petitioner when the construction was on, as their labour and manpower were staying there.
2. Subsequently the petitioner by its letter dated 9th June 2009 (Annexure P. 8) requested the Municipal authorities to give the External sanction and permanent connection for their In-house drainage. In reply the authorities demanded advance deposit of an amount of Rs. 18,83,300/- (Rupees Eighteen Lakhs Eighty Three Thousand and Three Hundred only) towards the cost of "road restoration, supervision fees, notification charges and road opening charge for the proposed rider sewer" as according to the Corporation, the necessary laying of sewer would have to be done from the petitioner's end as per the internal sanction plan.
3. The petitioner has challenged such demand raised by the Corporation and has contended that in effect this is a demand towards "drain development charges", which have been held to be illegal and unenforceable by various Benches of this Court in the absence of the existence of any regulatory mechanism under section 289(3) read with section 307 of the Kolkata Municipal Corporation Act. It has been pointed out on behalf of the petitioner that earlier a writ petition (WP No. 2072 of 2004) had been filed in respect of the same premises and building plan, in which an amount of Rs. 23,92,643/- on account of drain development fees was demanded from the land owners by the Corporation. By its order dated 7th December 2004 a Single Bench of this Court in Writ Petition 2072 of 2004 had permitted the petitioners to pay the composite money demanded by the authorities, but after excluding the sum specified on account of "drain development fees". The contention of the writ petitioners before this Court is that the demand now raised by the KMC authorities is again essentially towards the same "drain development fees" but under differently invented headings and nomenclature.
4. Such assertion has, of course, been denied on behalf of the Kolkata Municipal Corporation/respondents. From their side it has been asserted that the demand has been made in terms of sections 290 and 316 of the Kolkata Municipal Corporation Act, 1980. At this juncture it would be appropriate to refer to the provisions contained in the relevant Sections of the Kolkata Municipal Corporation Act, 1980, which have been referred to by the contesting sides during hearing. These sections are -
"S. 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:
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;
(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.
"S. 290. Connections with municipal drains not to be made except in conformity with section
289.-No person shall without complying with the provisions of section 288 or section 289 and the regulations made thereunder make or cause to be made any connection of a house-drain belonging to himself or to some other person with any municipal drain; and the Municipal Commissioner may close, demolish alter or remake any such connection made in contravention of this section, and the expenses incurred by the Municipal Commissioner in so doing shall be paid by the owner of the street or the owner or occupier of the premises, as the case may be, for the benefit of which the connection was made or by the person offending."
" S. 316. - Power of Municipal Commissioner to execute work after giving notice to the person liable.-(1) When under the provisions of this Act, any person may be required or is liable to execute any work, the Municipal Commissioner may, in accordance with the provisions of this Act and of any rules or regulations made in this behalf, cause such work to be executed after giving such person an opportunity of executing the same within such time as may be specified by him for this purpose.
(2) The expenses incurred or likely to be incurred by the Municipal Commissioner in the execution of any such work shall be payable by the said person unless the Mayor-in-Council directs the payment of such expenses out of the Municipal Fund.
(3) The expenses referred to in sub-section (2) shall be recoverable from the person or persons liable therefor as an arrear of tax under this Act.
307. [Power of the Municipal Commissioner to levy fees for drainage and sewerage service.]- [(1) The Municipal Commissioner may, at any time, levy an annual fee, for drainage and sewerage, at such rate, as may be fixed under the regulations made thereunder, or as stated in the budget estimate referred to in sub-section (3) of section 131 in this behalf, on the owner or the occupier or the person responsible to pay property tax on any house or land.] (2) Any unpaid sum under this section shall be recoverable from the person concerned as an arrear of tax under this Act.
5. It is thus seen from the highlighted portions above that the relevant provisions of the KMC Act lay down that the charges payable by any person, or otherwise recoverable from him for the work done of his behalf by the Corporation are subject to the Rules and Regulations in this regard.
6. It has also been held by various benches of this Court that in the circumstances no charges for connection to the Municipal Drain can be levied in the absence of the relevant regulations which are as yet unframed. In W.P. No. 866 of 2013 (Bengal Merlin Housing Limited & Anr. Vs. Kolkata Municipal Corporation & Ors.), relying on an earlier unreported Division Bench decision in "Bodhi Art Limited & Anr. Vs. Kolkata Municipal Corporation & Ors.", a Single Bench of this Court had held-
"... Prior to sanction of the petitioners' building plan, the Corporation had demanded and realized drainage development fees. The Corporation stated in its affidavit, inter alia, it took loan from the World Bank for development of drainage system in Kolkata, for the repayment of which it collected amounts, by introduction by drainage development fees, from the persons who wants to make construction of building within its jurisdiction. At the time of sanction of building plan drainage development fees was paid by the petitioners as required under law. The said fees paid was for development of the drainage system of the locality being in the area which comes within the added areas where there is hardly any drainage system. The subsequent demand (being the impugned request) is entirely different from drainage development fees. The impugned request is for making construction of new drain from the premises to the pit of the main drainage line for house drainage connection. Having said so the Corporation went on to say in that affidavit that, in of land on which the petitioners have built was paddy land since converted to residential land and to connect the drainage line from the premises to the pit, construction of new drain was required which does not come under the project of drainage development for which the World Bank granted loan and the drainage development fees are collected by the Corporation to repay the said loan...
This court does not accept the submission made on behalf of the Corporation that the impugned request was made in exercise of power under Section 307 of the said Act. The impugned request itself does not disclose under which provisions it was made. However, it is obvious and this court finds it was made in response to the petitioners seeking external house drainage connection at their premises. Section 289 of the said Act provides for right of owner or occupier of premises to drain into municipal drain. It is clear, therefore, in exercise of such right the petitioners had sought the external house drainage connection. The impugned request in response thereto was without jurisdiction since no regulation in terms of Section 289(3) of the said Act appears to have been made by the Corporation..."
7. The Appeal preferred by the KMC against the aforesaid decision of the Ld. Single Judge was dismissed, and the Trial Court's judgment was affirmed by the Division Bench in APO 373 of 2014/GA 3328 of 2014, in which it was observed-
"... Reading Section 289, clearly indicates the has to be a regulation.
So far as Section 289 is concerned it indicates how a particular fee or cost could be charged and what would be the basis for such estimation. As a matter of fact neither the quantum of demand nor the procedure for arriving at such estimation is the subject matter of contest. The very authority to levy such amount under Section 307 of the Act is under challenge. Reading of both the Sections, i.e. Section 289 and Section 307, they clearly indicate till date the Corporation has not evolved or formed any regulation under which they would charge or levy the amount in question. In order to demand such amount from the prospective builder there has to be an authority to levy such amount and such authority for the purpose of levying the amount must be regulated by a regulation which is absent in the present procedure..."
8. The facts of the present case are also squarely covered by the aforesaid decisions. The Corporation Authorities had demanded the amount towards "the cost of road restoration, supervision fees, Notification Charges and Road Opening Charge for the proposed rider sewer". Now whatever may be the nomenclature or classification of charges as demanded by the Corporation, it is undisputed that all of those are eventually for the purpose of connecting, or making the petitioners' temporary House Drainage connection permanent, the charges for which must therefore have to be made/recovered in accordance with the regulations which admittedly have not yet been framed. Relying on the ratio of the aforesaid two decisions therefore, it is clear that the Corporation is not authorised to demand any payment on this account related to the petitioners' drainage connection before the relevant regulations in this regard are framed and made operational.
9. The Writ Petition is therefore allowed and the demand for an amount of Rs. 18,83,300/- conveyed in the respondent's letter dated 22.06.2009 (Annexure- 9) is found to be untenable. The respondents are now directed to give the External Sanction and permanent connection of the petitioner's House Drainage without insisting for any payment in advance. The charges thus to be incurred shall of course, be recoverable from the petitioner at a later stage after the relevant regulations are framed and operationlised, since admittedly Section 393 protects the Corporation's right to recover such charges with retrospective effect.
(SUDIP AHLUWALIA, J.)