Calcutta High Court
Bengal Merlin Housing Limited & Anr vs Kolkata Municipal Corporation & Ors on 31 July, 2014
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Arindam Sinha
W.P. No. 866 of 2013
Bengal Merlin Housing Limited & Anr.
Vs.
Kolkata Municipal Corporation & Ors.
For the petitioner : Mr. S.N. Mitra, Sr. Adv.
Mr. A.K. Chakraborty, Adv.
For the respondent : Mr. Biswajit Mukherjee, Adv.
Mr. Swapan Kr. Debnath, Adv. (For the K.M.C)
Heard on : 05.06.14, 10.06.14, 26.06.2014 & 01.07.14.
Judgment on : 31st July, 2014.
Arindam Sinha, J.
The petitioners have challenged the demand made by the Kolkata Municipal Corporation by its letter dated 21st January, 2013 requesting the writ petitioner no.1 to arrange to deposit a sum of Rs.40,47,630/- for construction of box drain including supervision charges in place of the surface drain running in front of the premises of the said petitioner.
Mr. Mitra, learned Senior Advocate appearing on behalf of the petitioners relied upon an unreported judgment dated 16th April, 2010 (Bodhi Art Limited & Anr. Vs. Kolkata Municipal Corporation and Ors.) made by a Division Bench of this Hon'ble Court by which on the basis of information given on behalf of the Corporation that till date no regulation in term of Section 289 of the Kolkata Municipal Corporation Act, 1980 had been made authorizing it to recover expenses made by it for having a private house-drain made to communicate with municipal drain as is in or under a public street, held the Corporation had acted without jurisdiction in making the demand impugned therein. He further submitted the Corporation in its affidavit-in-opposition relied only on an amendment having been made to Section 393 of the said Act regarding imposition of drainage development fees. He submitted the Corporation having already had demanded and collected drainage development fees from the petitioners, the question for adjudication was whether the Corporation had the power to realize the costs of constructing a drain outside the premises of the petitioners as empowered by any regulation made under Section 289 of the said Act.
Mr. Mukherjee, learned Advocate appeared on behalf of the Kolkata Municipal Corporation and submitted the impugned request was issued in exercise of power under Section 307 read with Section 131 of the said Act. He submitted the impugned request was levy of a fee in respect of drainage as fixed in the budget estimate referred to in Section 131(3) of the said Act being the budget estimate for the year 2013-14. He pointed out the Chief Engineer's Department had given an estimate for house drainage connection fees for, inter alia, supply and laying of SW pipes on concrete bed from termination point of work done by the owner or occupier to the point of connection including the costs of temporary restoration of road surface.
Mr. Mukherjee further submitted Bodhi Art Ltd. relied upon by the petitioners was not applicable to the facts and circumstances of the present case on two counts. Firstly, the said decision was rendered in interpretation of Section 289 of the said Act while, according to him, the impugned request was made under Sections 307 and 131 of the said Act. Secondly, the said decision was rendered upon the petitioners therein having placed strong reliance on the decision reported in 2007 (3) CHN 476 (Asian Leather Ltd. and Anr. Vs. Kolkata Municipal Corporation and Ors.). He submitted the position in law laid down by Asian Leather Ltd. was regarding the right or authority of the Corporation to realize drainage development fees as pre-condition to sanction a building plan which was not the question for consideration in the present case since admittedly the petitioners had paid the drainage development fees demanded of them. He further submitted Asian Leather Ltd. was not good law since the court by that judgment had relied on the decision reported in AIR 1959 SC 135 (Sales Tax Officer, Benaras Vs. Kanhaiya Lal Mukund Lal Saraf) which was held to have been wrongly decided by the Hon'ble Supreme Court in the decision reported in 1997 (89) E.L.T. 247 (SC) (Mafatlal Industries Ltd. Vs. Union of India).
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 fact, the plot 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.
Since the challenge of the petitioner is not directed towards the demand and collection of drainage development fees, this court refrains from going into the question of why then drainage development fees was collected from the petitioners. The position regarding the case at hand stands settled by Bodhi Art Ltd. In that case, the Corporation had raised a demand of Rs.1,02,56,014/- for connection of the house drain in question with brick sewer at a distance of 680 meters away since huge quantity of sewer water coming from the premises could not be passed through the existing Corporation sewer line. It is the same facts in the present case where in the impugned request it had been stated:-
"It is observed at site that the surface drain running in front of your Premises is inadequate in section smooth discharge of effluent. More over, there is no positive out fall of said surface drain at all.
Therefore, smooth discharge of effluent, a length about 450.00M (Four hundred & fifty) of new box drain construction is required for connecting with the existing box drain towards out fall.
So, if you are agree to do the same please arrange to deposit a sum of Rs.40,47,630.00 (Rs. Forty lakh forty-seven thousand six hundred thirty only) for the construction of Box Drain including Supervision Charges immediately".
In appreciating the question involved in that case Section 289 of the said Act was referred to by the Division Bench of this court to find under sub-section 3 thereof, 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 regulation as may be made by the Corporation in this behalf. On the submission of learned Senior Advocate appearing on behalf of the Corporation made to the said Division Bench informing the court no such regulation in terms of Section 289 of the said Act had been made by the Corporation authorizing it to recover the expenses, the demand impugned was quashed with consequent directions upon the Corporation.
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.
For the reasons aforesaid, the impugned request dated 21st January, 2013 stands quashed. There shall also be an order in terms of prayer (b) of the petition, which is allowed to the extent aforesaid and disposed of, without any order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties on usual undertakings.
(Arindam Sinha, J.)