Calcutta High Court
Sri Prahlad Singh Jaggi & Ors vs Kolkata Municipal Corporation & Ors on 28 March, 2017
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
W.P. No. 784 of 2016
Sri Prahlad Singh Jaggi & Ors.
Versus
Kolkata Municipal Corporation & Ors.
BEFORE
THE HON'BLE JUSTICE
HARISH TANDON Appearance:
Mr. Joydeep Kar, Sr. Adv.
Mr. Arindam Banerjee, Mr. Saurav Mukherjee, Mr. Sandeep Joshi, Mr. Kajal Kr. Dutt.
Mr.Ashok Banerjee,Sr. Adv.
Mr. Debjit Mukherjee.
Mr. Barin Banerjee, Sr. Adv.
Mr. M. Kundu,
Judgment On : 28.03.2017
The Court:
The petitioner nos. 1 and 2 are the partners of M/s Jaiguru Associates and took the tenancy in the name of the said partnership firm of the Northern Block, 3rd Floor at Premise No. 7, Red Cross Place, Kolkata - 700 001 on the basis of an agreement of tenancy executed on 23rd February, 2016. One of the salient terms and conditions embodied in the said tenancy agreement is that the said partnership firm shall be entitled to sub divide the portions by making temporary wooden partition walls into small cubicles to induct sub-tenants to be members of the legal profession, chartered accountants and the professional engineers. The partnership firm decided to commence execution of work by erecting the internal wooden partition walls and repair the existing wooden mezzanine floor and appointed the contractor for such purposes. The contractor advised that the existing wooden mezzanine floor requires to be replaced as it would be used for storage purposes for which no prior sanction of the building plan or the building permit is required from the Kolkata Municipal Corporation. However, the partnership firm thereafter thought it fit to seek permission for such repairs and caused letters dated 04.04.2016 to the Executive Engineer (Borough -V), Director General (Building Department of the Kolkata Municipal Corporation) and the Officer-in-Charge, Hare Street Police Station. Since no response were made to the said letter, the partnership firm ensued the aforesaid works and completed in substantial degree. In the first week of June, 2016 the police officials from the Hare Street Police Station visited the site and stopped the work as those are unauthorized.
Subsequently, an F.I.R was lodged on 16th May, 2016 by an Assistant Engineer (Civil), Building Department of the KMC under Section 401A of the Kolkata Municipal Corporation Act, 1980 and a criminal proceeding was initiated before the Civil Municipal Magistrate, Kolkata. The petitioners, against whom the F.I.R was lodged, surrendered before the Municipal Magistrate and were enlarged on bail by an order dated 7th June, 2016. The copy of the F.I.R, which was subsequently supplied to the petitioners revealed that such criminal proceeding was initiated alleging the unauthorized construction of wooden mezzanine floor and partition wall on the northern portion of the 3rd floor at the said premises without obtaining any sanction of the building plan and the same is also in contravention to the said Act and Rules framed thereunder and may cause danger to the human lives because the building may collapse. It was further transpired that the notice under Section 401 of the said Act was also issued by Kolkata Municipal Corporation and stated to have been served.
Since, the said work was stopped because of the filing of the F.I.R and the initiation of the criminal proceeding as well as alleged issuance of a notice under Section 401 of the Act, the petitioner challenged the notice of stop work in the instant Writ Petition not only on the ground that it was never served upon them but also that the execution of repair work do not come within the expression "to erect a building" defined under Section 390(1) of the Act and therefor it does not contravene any of the provision of the said Act nor the Rules framed therein.
The Writ Petition was entertained and a direction was passed for filing affidavits. It is a specific stand of the Corporation in the opposition filed that as per the records of the assessment register the nature of the use of the subject premises is shown as office and godown, which was previously occupied by one Anderson Rite & Company. It is further stated that during the inspection it was detected that the works are mainly done for construction of a wooden mezzanine floor and the partition walls without any sanction from the Corporation nor the no- objection certificate was issued from the Fire Department of the West Bengal. It is thus stated that the definition of the expression "to erect a building" under Section 390(1)(h) of the Act means the conversion into a stall, shop, office, warehouse or godown, workshop, factory or garage in any building not originally constructed for such user or to convert any building constructed for such purposes by sub-division or addition in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages and therefore the erection of the wooden mezzanine floor and the partition walls squarely come within ambit of the aforesaid expressions.
It is important to record that during the pendency of the Writ Petition the criminal proceeding initiated under Section 401A of the Act ended as the accused persons were not found guilty of committing any offence punishable under the aforesaid provision.
The learned Advocate appearing for the petitioner submits that the repairs of the existing mezzanine wooden floor and the raising of the wooden partition wall to make cubicles do not make under the expression "to erect a building" given under Section 390 of the said Act and therefore there is no necessity of taking a permission or sanction of the plan under Section 393 of the said Act. It is further submitted that Rule 3 of the Kolkata Municipal Corporation Building Rules expressly provides that no building permit is required for erection of an internal partition wall nor for repairing of the existing structures. It is ardently submitted that Section 401 of the Act can only be invoked if the erection of a building is carried on without or contrary to the sanctioned plan or in contravention of any conditions of such sanctioned plan or any provisions of the Act or the Rules and Regulations made thereunder and not when the construction comes within the purview of Rule 3 of the said Building Rules.
It is thus submitted that the ingredients required for issuance of the said notice is absent and therefore such notice should be quashed and set aside. It is further submitted that once the Municipal Magistrate did not find the execution of work to be in contravention to the Act or the Rules framed therein and acquitted the petitioner, the notice under Section 401 of the Act cannot independently stand upon and is liable to be quashed and set aside.
On the other hand, learned Advocate for the Corporation submits that the construction of a wooden mezzanine floor and the partition wall amounts to erection of a building under Section 390 of the Act and admittedly no plan is sanctioned in this regard, the notice cannot be impinged on such ground. It is further submitted that even after the acquittal in a criminal proceeding initiated under Section 401A of the Act, it has no repercussion on Section 401 of the Act, which stands on a different pedestal. It is vehemently submitted that the petitioners are making a wooden mezzanine floor which is really an additional floor and not permissible without the sanctioned plan and there is no illegality in issuing the notice for a stop work.
In the backdrop of the aforesaid facts, the point needs consideration is the impact of an order of acquittal under Section 401A on the notice under Section 401 of the said Act. The provisions contained under Section 401 can be invoked when there is an erection of any building or an execution of any work being carried on in contravention to the sanctioned plan or the conditions attached thereto or any provisions of the Act or the Rules framed therein. It becomes, therefore necessary to quote Section 390 of the said Act, which deals with the "erection of a building" as under:-
"S. 390. - In this Chapter, unless the context otherwise requires,---
(1) the expression "to erect a building" means---
(a) to erect a new building on any site, whether previously built upon or not;
(b) to re-erect
(i) any building of which more than one-half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed, or
(ii) any building of which more than one-half of the superficial area of the external walls above the level of the plinth has been pulled down, or
(iii) any frame-building of which more than half of the number of posts or beams in the external walls have been pulled down;
(c) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally constructed for human habitation, subsequently appropriated for any other purpose;
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only;
(e) to convert into a place of religious worship or a sacred building any place or building not originally constructed for such purpose;
(f) to roof or cover an open space between walls or buildings to the extent of the structure formed by the roofing or covering of such space;
(g) to convert two or more tenements in a building into a greater or lesser number of such tenements;
(h) to convert into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such, or to convert any building constructed for such purpose, by subdivision or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages;
(i) to covert a building, which when originally constructed was legally exempt from the operation of any building regulations, contained in this Act, or under any rules or regulations made under this Act, or contained in any other law in force for the time being, into a building which, had it been originally erected in its converted form, would have been subject to such building regulations;
(j) to convert into or use as a swelling house any building which has been discontinued as or appropriated for any purpose other than a dwelling house;
(k) to make any addition to a building;
(l) to close permanently any door or window in any external wall;
(m) to remove or reconstruct the principal staircase or to alter its position; (2) "occupancy" or "use group" means the principal occupancy for which a building or a part of a building is used or intended to be used. For the purpose of classification of a building according to occupancy, an occupancy shall be deemed to include subsidiary occupancies which are contingent upon it. Buildings with mixed occupancies shall mean those buildings in which more than one occupancy are present in different portions thereof.
The occupancy classification shall, unless otherwise spelt out in any development plan under any law in force for the time being, include--
(a) residential buildings, that is to say, any buildings in which sleeping accommodation is provided for normal residential purposes with or without cooking facility or dining facility or both; such building shall include one or two or multi-family dwellings, hostels, apartment houses and flats, and private garages;
(b) educational buildings, that is to say, any buildings used for school, college or day-care purposes involving assembly for instruction, education or recreation incidental to educational buildings;
(c) institutional buildings, that is to say, any buildings or part thereof ordinarily providing sleeping accommodation for occupants and used for the purposes of medical or other treatment or care of persons suffering from physical or mental illness, disease or infirmity, care or infants, convalescents or aged persons and for penal or correctional detention in which the liberty of the inmates is restricted; such buildings shall include hospitals, clinics, dispensaries, senatoria, custodial institutions and penal institutions like jails, prisons, mental hospitals and reformatories;
(d) assembly buildings, that is to say, any buildings or part thereof where groups of people congregate or gather for amusement or recreation or for social, religious, patriotic, civil travel, sports, and similar other purposes; such buildings shall include theatres, motion picture houses, drive-in- theatres, city halls, town halls, auditoria, exhibition halls, museums, skating rinks, gymnasium, restaurants, eating houses, hotels, boarding houses, lodging or rooming houses, guest houses, dormitories, places of worship, dance halls, club rooms, gymkhana, passenger stations and terminals of air, surface and other public transportation services, recreation piers, and stadia;
(e) business buildings, that is to say, any buildings or part thereof used for transaction of business for the keeping of accounts and records or for similar purposes; such buildings shall include offices, banks, professional establishments, court houses, and libraries for the principal function of transaction of public business and keeping of books and records, and shall also include office buildings (premises) solely or principally used as an office or for office purpose.
Explanation. ---- For the purpose of this clause,---
(i) the expression "office purpose" shall include the purpose of administration and clerical work (including telephone and telegraph operating and operating computers), and
(ii) the expression "clerical work" shall include writing, book keeping, sorting papers, typing, filing, duplicating, punching cards or tapes, machine calculating, drawing of matter for publication, and editorial preparation of matter for publications;
(f) mercantile buildings that is to say, any buildings or part thereof used as shops, stores, or markets for display or sale of merchandise, either wholesale or retail, or for office, storage or service facilities incidental to the sale of merchandise and located in the same building; such building shall include establishments, wholly or partly engaged in wholesale trade, manufacturer's wholesale outlets (including related storage facilities), warehouses, and establishments engaged in truck transport (including truck transport booking agencies);
(g) industrial buildings, that is to say, any buildings or structures or part thereof in which products or materials of all kinds and properties are fabricated, assembled or processed as in assembly plants; such buildings shall include laboratories, power plants, smoke houses, refineries, gas plants, mills, diaries, factories, workshops, automobile repair garages, and printing presses;
(h) storage buildings, that is to say, any buildings or part thereof used primarily for the storage or sheltering of goods, wares of merchandise as in warehouses; such building shall include cold storages, freight depots, transit sheds, store houses, public garages, hangars, truck terminals, grain elevators, barns an stables;
(i) hazardous buildings, that is to say, any buildings or part thereof used for the storage, handling, manufacture or processing of highly combustible or explosive materials or products which are liable to burn with extreme rapidity or which may produce poisonous fumes or explosions during storage, handling, manufacture or processing or which involve highly corrosive, toxic or noxious alkalies, acids or other liquids or chemicals producing flames, fumes, explosions or mixtures of dust or which result in the division of matter into particles subject to spontaneous ignition;
(3) "alteration" means the change from one occupancy to another, or the structural change, such as the addition to any area or height, or the removal of a part of a building, or the change to the structure, such as the construction of or cutting into or removal of any wall, partition, column, beam, joist, floor, or other support, or the change to or closing of any required means of ingress or egress, or the change to any fixture or equipment."
The Corporation was relying upon Clause 'h' of sub-Section 1 of Section 390 of the Act as the construction of a wooden mezzanine floor and partition wall by sub-division or addition for the purpose of office amounts to erection of a building and Section 392 of the said Act prohibits such erection without previous sanction of the Municipal Commissioner under Section 393 of the Act.
For better understanding of the respective submissions the provisions contained under Sections 401 and 401A are reproduced as under:-
"S. 401. Order of stoppage of buildings or works in certain cases.--- (1) Where the demolition of any heritage building or the erection of any building or the execution of any work has been commenced or is being carried on without or contrary to the sanction referred to in section 396 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or the rules or the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, by order, require the person at whose instance the building or the work has been commenced or is being carried on to stop the same forthwith.
(1A) (a) Notwithstanding anything contained elsewhere in this Act or in any rules or regulations made thereunder, no owner of any building, and no person engaged in the construction of any building on behalf of the owner thereof shall allow storage or stagnation of water in the site for the construction of such building. Every such owner or every such person, as the case may be, shall completely empty all collections of such water at least once in a week.
(b) Where the construction of a building is carried on in contravention of the provisions of clause (a), the Municipal Commissioner may, in addition to any other action that may be taken under this Act, by a written order, require the person at whose instance such storage or stagnation of water in the site for the construction of the building is made to stop forthwith any further construction of the building, and such order shall remain in force till the person as aforesaid complies with the requirements of the order as aforesaid to the satisfaction of the Municipal Commissioner.
(1B) If an order made by the Municipal Commissioner under clause (b) of sub-
section (1A) directing any person to stop the construction of any building is not complied with, the Municipal Commissioner may take such measures as he deems fit or may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified by the Municipal Commissioner and such police officer shall comply with such requirement.
(2) No Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(3) If an order, made by the Municipal Commissioner under section 400 or under sub-section (1) of this section directing any person to stop the erection of any building or the execution of any work, is not complied with, the Municipal Commissioner may take such measures as he deems fir or may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified by the Municipal Commissioner and such police officer shall comply with such requirement.
(4) After the requirement under sub-section (3) has been complied with, the Municipal Commissioner may, if he thinks fir, depute, by a written order, a police officer or an officer or other employees of the Corporation to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued.
(5) Where a police officer or an officer or other employee of the Corporation has been deputed under sub-section (4) to watch the premises, the cost of such deputation to be determined by the Corporation by regulations shall be paid by the person at whose instance such erection or execution is being continued or to whom notice under sub-section (1) has been givn and shall be recoverable from such person as an arrear of tax under this Act."
S. 401A. Construction of building in contravention of the provisions of the Act or the rules made thereunder.---- (1) Notwithstanding anything contained in this Act or the rules made thereunder or in any other law for the time being in force, any person, who, being responsible by himself or by any other person on his behalf, so constructs or attempts to so construct or conspires to so construct any new building or additional floor or floors of any building in contravention of the provisions of this Act, or the rules made thereunder as endangers or is likely to endanger human life, or any property of the Corporation whereupon the water-supply, drainage or sewerage or the road traffic is disrupted or is likely to be disrupted, or is likely to cause a fire hazard, shall be punishable with imprisonment of either description for a term which may extend to five years and also with fine which may extend to fifty thousand rupees.
Explanation.--- "Person" shall include an owner, occupier, lessee, mortgagee, consultant, promoter or financier, or a servant or agent of an owner, occupier, lessee, mortgagee, consultant, promoter or financier, who supervises or causes the construction of any new building or additional floor or floors of any building as aforesaid.
(2) The offence under sub-section (1) shall be cognizable and non-bailable, within the meaning of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Where an offence under sub-section (1) has been committed by a company, the provisions of section 619 shall apply to such company.
Explanation.--- "Company" shall have the same meaning as in the Explanation in section 619."
From the conjoint reading of the aforesaid quoted provisions, the Municipal Commissioner can issue a notice to stop the erection of any building or execution of any work if it contravenes to the provision of Sections 390, 393 and 396 of the Act. Simultaneously, the provisions under Section 401A can also be activated if a person is responsible for construction or attempting or conspiring to construct any new building or additional floor or floors of any building in contravention to the provisions of the Act or the Rules framed thereunder if it endangers or likely to endanger human life or any property of the Corporation whereupon the water supply, drainage or sewerage or the road traffic is disrupted or likely to be disrupted or cause fire hazard. The language used in both the aforesaid Sections are distinct, different and stands on its own footing though with the common intent that it is reletable to the construction of a building or execution of a work. Section 401A was introduced subsequently by an amendment Act of 1993 keeping in mind the existing provision in the said Act. Section 401 is in essence a preparatory action in aid of a proceeding under Section 400(1) of the Act, which contains an exhaustive provision relating to the consequential orders to be passed by the Commissioner in the event the aforesaid erection, construction or the work is found to be illegal or unauthorized. Under sub-Section 1 of Section 400, the Municipal Commissioner has to serve a notice briefly stating the reasons therefore and after affording a reasonable opportunity of hearing to the person responsible for such unauthorized and illegal work may pass an order for demolition. It is therefore axiomatic to record that the moment an order is passed under sub-Section 1 of Section 400 of the Act, the action under Section 401 cannot survive independently being the dependent one. Incorporation of Section 401A by way of an amendment in the said statute is an additional mode of prosecuting a person in a criminal action and imbibe within itself such act to be a punishable offence. Rule 3(2) of the Building Rules exempted certain works keeping them outside the periphery of the provisions relating to erection of a building which could be seen from the opening words starting with the non-obstante clause. Though the proceeding under Sections 400, 401A can be launched on somewhat common grounds and the notice of stop work being the starting point, they are subject to the exceptions carved out under Rule 3(2) of the Building Rules.
I am conscious of the proposition of law that the Rules framed in exercise of the Rule making powers contained in the parent Act if contravenes to any of the provisions of the said Act, it cannot have a supremacy over it. The object and purpose for incorporation of Rule 3(2) of the Building Rules and ingredients incorporated therein does not appear to be in direct conflict with the substantive provision of the Act.
The spirit of the aforesaid provisions does not clothe the power on the Municipal Commissioner to remain dormant and silent in not initiating a proceeding under sub-Section 1 of Section 400. The Municipal Commissioner who was prima-facie satisfied over the unauthorized and illegal construction and issued a notice under Section 401 of the Act must promptly take steps under sub-Section 1 of Section 400 of the Act and decide the dispute if raised by the person responsible after affording him an opportunity of hearing.
The moot question which this Court feels requires consideration is whether there was an existence of a wooden mezzanine floor and the same is being repaired by the petitioners or it is a new construction bringing a new floor offending the provision of the Act. Such question is essentially a question of fact and needs to be gone into by the fact finding authority and not in exercise of a Writ Jurisdiction. The Writ Court should not convert itself into a Court of facts and usurp the power of an authority. Admittedly, the Municipal Commissioner has not initiated any proceeding under sub-Section 1 of Section 400 of the Act even after issuing a notice under Section 401 thereof which this Court feels should not be encouraged. The object of Section 401 of the Act, by no stretch of imagination be treated as a permanent action of the Municipal Commissioner in view of Section 400(1) of the Act.
Since this Court does not find that any interference is called for to a notice under Section 401 of the Act, the only relief which can be extended to the petitioners is by way of direction upon the Municipal Commissioner to activate the provisions of Section 400(1) of the said Act. The proceeding under the aforesaid provision is not a casual or idle exercise but requires a conscious application of mind on the attending facts and circumstances. It is open to the petitioners to take all the pleas available to him either agitated or not agitated in the instant Writ Petition to be taken therein.
The impact of the judgment of acquittal by a Municipal Magistrate under Section 401A shall also be considered by the Municipal Commissioner and it goes without saying that proper reasons shall be recorded in this regard.
The Municipal Commissioner or is delegate shall initiate the proceeding within one week from the date of the communication of the order and shall dispose of the same within six weeks therefrom in accordance with law.
In the light of the observations recorded hereinabove the Writ Petition is disposed of.
However, there shall be no order as to costs.
(Harish Tandon, J.)