Calcutta High Court (Appellete Side)
Sk. Mujibar Rahaman vs The Kolkata Municipal Corporation & Ors on 20 September, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
1
7 20.09. W.P. No.23348(W) of 2017
ns 2018
Sk. Mujibar Rahaman.
Versus
The Kolkata Municipal Corporation & Ors.
Mr. Yamin Ali .... for the petitioner.
Mr. Ranajit Chatterjee,
Mr. Subhrangshu Panda .... For municipal corporation.
Mr. Amitesh Banerjee, Sr. Adv.,
Mr. Suddhadev Adak ... for the State.
Mr. Srijit Chakraborty,
Mr. Imran Ali .... For respondent nos.10 to 12.
Re: CAN No.6952 of 2018 This is an application at the behest of the corporation seeking a direction upon the private respondents, who according to the corporation are persons responsible, to pay the cost of demolition. The cost of demolition assessed is excess of Rs.32 lakhs.
Learned Advocate appearing for the private respondents submits that, the provisions of Section 400(7) of the Kolkata Municipal Corporation Act, 1980 read with Chapter - XVI relating to payment of recovery of taxes, do not entitle the corporation to make an application, in a pending writ petition, seeking direction 2 upon the private respondents to pay the costs of demolition. He questions the maintainability of the application. He draws the attention of the Court to the judgment and order dated April 28, 2017 passed in WP No.85 of 2014 (Lakhu Dubey Versus The Kolkata Municipal Corporation & Ors.) in support of his contentions.
The State, the corporation and the petitioner are represented.
There exists an order of demolition. The corporation is in the process of implementing such order of demolition. Needless to say that, the work of demolition involves costs. Section 400 of the Act of 1980 requires the persons responsible to remove the unauthorised constructions. The private respondents are alleged to be the persons responsible. The corporation seeks to realise the costs of the demolition from the private respondents.
Section 400 of the Act of 1980 is as follows:-
"Section 400 Order of demolition and stoppage of buildings and works in certain cases and appeal (1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in 3 section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order:
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made :
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub- section (3).
Explanation.-In this Chapter, "the person at whose instance"
shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations if any, or does it by himself. (2) The Municipal Commissioner may make an order under sub- section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the 1 Subs, by s. 2 of the 4 Calcutta Municipal Corporation (Amendment) Act, 2001 (West Ben. Act VIII of 2001) (with effect from 23.3.2001) for the words "consolidated rate".[property tax] on lands and buildings.
(3) Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415.
(4) Where an appeal is preferred under sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-section (1), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5) Save as provided in this section, 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.
(6) Every order made by the Municipal Banking Tribunal on appeal and, subject to such order, the order made by the Municipal Commissioner under sub-section (1) shall be final and conclusive.
(7) Where no appeal has been preferred against an order made 5 by the Municipal Commissioner under sub-section (1) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building Or work to be demolished forthwith.
Section 400(7) of the Act of 1980 allows the corporation to recover the expenses of the demolition from such persons who were responsible for the unauthorised construction as an arrear of tax under the Act of 1980. Chapter XVI of the Act of 1980 deals with payment of recovery of taxes.
According to the private respondents, the corporation must incur the expenses and they deploy the manner and mode of recovery of taxes enumerated in 6 Chapter XVI of the Act of 1980, to realise the same. The corporation has no other avenues for recovering the costs of demolition.
Lakhu Dubey (supra) concerned a demolition proceedings. The writ petitioners therein prayed for implementation of an order passed in a demolition case. Section 400 of the Act of 1980 was considered. It was observed that, although Section 400(7) uses the word "may", it imposes a duty on the Municipal Commissioner to cause the demolition ordered, at the expenses of the persons responsible.
In the facts of the present case, the order of demolition is yet to be implemented in full. In view of the Act of 1980, the private respondents are the persons responsible who should have carried out the order of demolition at their costs and expenses. They have failed to do so, necessitating the corporation to undertake the work of demolition, which according to the corporation would involve costs of a sum of Rs.32 lakhs approximately. Corporation has already expended a sum in excess of Rs. 16 lakhs. They anticipate a further expense of Rs. 16 lakhs. The private respondents are yet to pay the costs already incurred. The private respondents 7 are unwilling to implement the order of demolition on their own.
In the facts of the present case, therefore, it would be prudent to protect the claim of the Corporation. It would also be proper to permit the private respondents to file affidavits to the application. In such affidavit, the respondents will disclose the tangible assets available to each of them.
There will be an order of injunction restraining the private respondents from dealing with or disposing of or selling and alienating any of their assets in any manner whatsoever. They will not operate any of their bank accounts until further orders.
Let affidavit-in-opposition be filed within two weeks from date. Reply thereto, if any, be filed within one week after the ensuring Puja Vacation.
List the writ petition under the same heading on November 22, 2018 as prayed for.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. ) 8