Calcutta High Court
Aloke Kumar Ghosh And Ors. vs Calcutta Municipal Corporation And ... on 3 July, 1997
Equivalent citations: (1997)2CALLT249(HC), 1997 A I H C 3669, (1997) 2 CAL LJ 274, (1997) 2 CALLT 249, (1997) 101 CAL WN 361
JUDGMENT Vinod Kumar Gupta, J.
1. An ambitious project conceived some time in 1986, to convert an existing market place which has been in an extremely dilapidated state, full of dirt, filth, squalor, human excreta and with all the hazards that go alongwlth an unstable structure built, may be hundred or more years ago, into an ultra-modern multi-storeyed shopping mall has not been allowed to even take off till date, thanks to the diallingdallying on the part of the authorities of Calcutta Municipal Corporation and others, the delay of more than 11 even in starting the project, for a change not being attributable at all to any judicial process. It is not very uncommon these days that some people raise accusing fingers towards the courts of law for delaying the execution, completion and commissioning of projects because of the pendency of litigation in the courts and the issuance of interim directions. This however is a classic case where, without any interference from the courts, the Authority entrusted with the task has not acted at all, for wholly unsustainable reasons. A project which was conceived in the year 1986 and for which a formal agreement was drawn in the year 1987, was to be completed in a couple of years thereafter and yet, 11 full years having passed by in the meantime, not a brick has been laid so far. It was a case of total apathy on the part of CMC authorities; a total lack of concern for the initiation of the project and for its timely completion. The result is that the squalor, the dirt, the filth, the human excreta and the hazards of unsafe habitation in that dilapidated structure called Lansdowne Market continue to rule the roost. The facts may be summarised herein below:
2. On 6th May, 1986 the Calcutta Municipal Corporation (CMC for short) issued a notice inviting tenders for the reconstruction of the Lansdowne Market through a private developer. Respondent No. 13, the private developer submitted his tender along with other eligible tenders and after processing the tenders received and the evaluation of the tender documents etc. CMC on 14.2.87 awarded the contract to respondent No. 13 for building the Lansdowne Market. The construction was to be completed within 48 months from the date of the execution of the contract. The contract agreement executed between the CMC and respondent No. 13 provided that respondent No. 13 shall pay to CMC a sum of rupees 1,39, 51,000/- as premium out of which Rs. 20,92,650/- had to be paid on or before the execution of the agreement and Rs. 3,00,000/- to be deposited as security. The existing stall holders would be relocated temporarily in phases to facilitate the construction and the cost of relocation shall be borne by the respondent No. 13. The respondent No. 13 shall construct the entire building arrange for rehabilitation of the existing authorised occupants in the newly constructed building on its ground floor at his own cost and expenses and if the space on the ground floor is not found adequate, the rehabilitation may be extended to the first floor. The respondent No. 13 shall provide power supply, continuous water supply, drainage, electrification and other services as also escalators, passenger lifts, lifts for goods, car park etc. He will also arrange the landscaping of the open space around the building. The entire cost of construction estimated at Rs. 24 crores would borne by the respondent No. 13. The CMC shall be given the constructed area of 1182 square metres which was at present occupied as also additional constructed area of 1000 sq. mtr., all free of cost. The remaining space shall be leased out to respondent No. 13 for 60 years @ Rs. 25/- per sq. mtr. per month inclusive of maintenance cost with provision for periodical increases. Total area to be constructed by respondent No. 13 is 43690 sq. mtr. out of which 3984 sq mtr. will be used for services and car parking in the basement. An area of 6875 sq mtr. on the ground floor will be given to the existing stall-holders and additional area of 700 sq mtr. on the first floor. CMC would be given the areas of 1182 and 100 sq. mtr. respectively free of cost. The gross area available in the upper floors of the building has been worked out at 39,960 sq. mtr. Excluding 14980 sq. mtr out of this area for circulation for corridors, stairs and toilets etc., the respondent No. 13 was left with an area of 14980 sq. mtr. which he was getting on a lease valid for 60 years. It was to spend almost Rs. 25.39 crores, apart from spending the monthly lease money. The ownership of the building was to remain with the CMC.
3. If the CMC was to take up the reconstruction of the Lansdowne Market itself, it has to be incur the following expenditure:
1. Cost of shifting the existing stalls;
2. Cost of building temporary alternative structures for relocation of the existing stall holders.
3. The cost of structuring only the basement and foundation was worked out to Rs. 9.77 crores. If the CMC was to borrow Rs. 25 corres from HUDCO, it was liable to pay interest etc. etc.
4. It has been submitted by almost all the parties that between mid-1987 and 21st January, 1994, when the first writ petition was filed by one Shri Sanjeev Kumar Tulsian in this court with regard to the same market, about which I shall advert later, there was no legal impediment in the way of either the CMC or respondent No. 13 undertaking the construction work except perhaps some so-called practical difficulties like the interference or obstruction etc. by the stall holders or the inhabitants of the area, why could the CMC not handle such a situation, despite it having awarded a contract, the completion whereof was time bound, is not wholly understandable. The fact remains that the contract work has not so far started and respondent No. 13 has been given numerous extensions as per the terms and conditions of the agreement executed by the parties to complete the construction work. It is stated by the parties that the last extension has recently been given and the contract work has not started even at present.
5. On 21st January, 1994 one Sanjiv Kumar Tulsian had filed a writapplication under Article 226 of the Constitution of India in this court with regard to the award of contract to respondent No. 13 and the construction of the market. Vide order dated 4th February, 1994 a learned single Judge of this court disposed of this writ-application by directing that respondent No. 13 shall start the construction work immediately and not later than 2 weeks and that the petitioner Sanjiv Kumar Tulsian and all other stall holders shall cooperate with the work of construction. It was also directed that if there was any interference or obstruction in construction work CMC shall have the liberty to take appropriate police help. DCP, South was directed to render necessary police protection, if asked for. Prior to the passing of this order the Chief Engineer (Planning and Development), of the CMC was asked by the learned single Judge to inspect the place and file his report with regard to the state of the building. In his report submitted to the court he had observed that the condition of the building was very dilapidated, that major accidents may occur at any moment. In fact, according to this report some portion of this market had collapsed on 25th July, 1991 and another portion in July 1993 injuring some persons. Lansdowne Market Byabasayee Samity, respondent No. 12 herein, even though was not a party in the aforesaid writ application, failed an appeal upon leave against the aforesaid judgment of the learned single Judge. The Division Bench however vide its judgment dated 1st March, 1995 refused to interfere in the judgment of the learned single Judge and disposed of the appeal by issuing some directions, which inter alia included the following:
1. Respondent No. 13 shall first construct the temporary structures for accommodation by the stall-holders who are likely to be affected by the construction in a particular phase;
2. The stall holders will be given 7 days time to shift from the market into the temporary structure. If they do not do so respondent No. 13 shall not have any obligation to accommodate them in the temporary structures and the authorities shall be at liberty to evict the stall holders from the market by taking police help;
3. After the stall holders vacate the respective portions of the market, respondent No. 13 shall proceed with the construction work expeditiously and complete the same very early as per the terms of the agreement so that the entire market is rebuilt as per the scheme already formulated.
6. While disposing of the appeal, the Division Bench had made the following observations with regard to the merits of this case and the points of controversy involved:-
1. This court is not concerned about the validity or otherwise of the policy decision taken by the Calcutta Municipal Corporation with regard to awarding of the contract in favour of respondent No. 13. The property in question belongs to Calcutta Municipal Corporation and the members of the public are the beneficiaries of the project. Once the CMC decides to reconstruct the building as a welfare measure, such a decision cannot be the subject matter of judicial review.
2. The project is for the benefit of the public and is in public interest. All the existing stall-holders get accommodation on the ground floor of the new building and would be entitled to carry on trade and business as hitherto.
3. The reconstruction of the building would be made in the five phases. The stall holders or the squatters as the work of construction progresses would be first shifted to alternative accommodation in or around the market before the demolition of dilapidated structure so that they can carry on their business during the period of construction of building. Upon conclusion of phase one of construction, the stall holders and squatters and other vendors will be brought back to the new building (constructed area) and thereafter the construction of other phases will be taken up following similar procedure. By this process all the 5 phases of the building would be constructed without affecting the business of stall holders and squatters.
4. It is quite evident that the CMC authorities cannot continue with the present state of the market. Apart from the fact that these market incurs an establishment cost of Rs. 7,65,000/- every month, and the income being only Rs. 5,85,730/- per month, the structure is such that it is impossible to continue working there. The project when completed would be in larger public interest and individual likes or dislikes cannot affect a project of such public nature.
7. Against the aforesaid judgment of the Division Bench, respondent No. 12 herein preferred a Special Leave Petition, being SLP 12182/95 in the Supreme Court which however was disposed of vide judgment dated 11.7.95. Their lordships of the Supreme Court while disposing of the SLP and refusing to interfere with the judgment of the High Court passed the following order:-
"We are not inclined to interfere with the impugned order of the High Court. However we place it on record that Mr. Tapash Ray, learned counsel appearing for the Calcutta Municipal Corporation states that pursuant to the direction of the High Court, an alternate site near the market in question has been earmarked for accommodating the stall holders when construction will be undertaken. The special leave petition is disposed of accordingly."
8. The writ petitioners who are 46 in number and claim to be residents of South Calcutta, close to or around the vicinity of the Lansdowne Market have approached this court through the present petition styling it as public interest writ application against the so-called wrongful, illegal and motivated actions of CMC in awarding the contract of 1987 to respondent No. 13 and in closing a public street to vehicular traffic by setting up squatters-vendors, and vegetables sellers there. In this petition the writ petitioners have asked for the following main reliefs:-
1. To enquire into the legality and proprietory of awarding the contract to respondent No. 13, through an independent investigating agency.
2. To quash, set aside and cancel the aforesaid contract.
3. To restrain CMC not to allow any stall-holders, vendors or squatters to occupy any basic street and footpath surrounding the Lansdowne Market and to restore normal operations in the Lansdowne market as existing at present.
9. On 21.3.97 when this petition was taken up for hearing, after some of the learned counsel had made their submissions, I thought, it prudent and desirable that I acquaint myself personally with the local and situation of the Lansdowne Market as also the conditions prevailing there so as to properly appreciate the points of controversy involved in this case. All the learned counsel for the parties readily agreed to my said suggestion and I accordingly observed in the order dated 21.3.97 that I shall be accompanied by Shri L.C. Bihani, the learned Advocate appearing for CMC and Shri M.C. Das, the learned advocate appearing for West Bengal Pollution Control Board. All the learned advocates for the parties agreed to this proposal and it was pursuant to this order that immediately thereafter, one morning, accompanies by the aforesaid two advocates, I in-cognito visited the Lansdowne Market and its surroundings areas, including Benoy Bose Road.
10. This is a case where once again this court is being called upon to decide an issue of far-reaching public interest, viz. whether the rights of a few individuals, even is properly substantiated can have precedence over larger public interest, the paramount right of the society and the obligation of the state to serve the people. In this case a lot has been said about the bona-fides of the petitioners by the respondents and even the credentials of the petitioners have been challenged.
11. It has been pleaded on behalf of the respondents that none of the petitioners has any interest in the outcome of the writ application and that none of them has any right either to maintain this petition or to claim any interest in its subject matter. Even though I am not deciding about the bona-fides or otherwise of the petitioners in this case, I cannot remain oblivious to the fact that the petitioners have undoubtedly failed to establish any right or any direct interest in the outcome of this petition or in the issues herein. Larger public interest in a case like this is of paramount legal importance and this court should not hesitate in upholding the right of the society in having a newly constructed ultramodern municipal market with all modern facilities available, both to the sellers as well as purchasers, free from all hazards. It is the right of the shop keepers to work in conducive and congenial atmosphere as also it is the right of the shoppers to shop in ideal surroundings. When I went through the Lansdowne Market I found that even walking through the market was not possible. It was so dirty, so much full of foul smell, so muddy, so bad in all respects that it was wholly unfit for human habitation, for selling wares and for the shoppers to move around. The place was so unhygienic that one wondered as to how many diseases it might be breeding everyday. It was a place which was simply nauseating. Nauseating everywhere.
12. The fact that this court, both at the level of the learned single Judge and the Division Bench has upheld the award of contract to the respondent No. 13 as also the right of CMC to have the market re-developed and deconstructed through the respondent No. 13 did not bother or trouble the petitioners from once again approaching this court. The fact that this court has already ordered the making of detailed arrangements for rehabilitation of the stall holders in a manner by providing all safe-guards and protecting their interests has also not prevented the petitioners once again by asking this court to interfere. The fact that the apex court of the country has approved the judgment of this court and that it refused to interfere in the matter, thus putting to an end finally any controversy, did not prevent the petitioners from once again approaching this court. I have carefully gone through the judgment of the learned single Judge, the Division Bench and the Supreme Court and I find myself totally unable to reconcile with any idea as to how can this court reopen any issue in this case which has finally been decided by all courts throughout right up to the apex court.
13. After 11 years of the award of contract and after practically 3 years since this court decided the issue finally, the petitioners once again want the entire controversy to be reopened. I am afraid I cannot embark upon exercise, enquiry or investigation into any issue relating to this market since all the issues have now being rendered respondent integra. I cannot permit the petitioners to re-open and re-agitate the very issues in this petition which have since finally been adjudicated and settled in the earlier petition.
14. The above referred earlier judgments however did not deal directly and specifically with two particular issues which have been very vehe- mently urged by the parties in this case and which are of some relevance to the points of the controversy involved. Since most of the other issues raised in this petition have been dealt with by the earlier judgments and because I am not reiterating those issues specifically, I think that the two uncovered issues should be considered and adjudicated upon in this case. The first issue relates to the question of encroachment upon public road, as is alleged by the petitioners and the second concerns the question relating to the grant of sanction, rather the absence of it, in the building plan with respect to the proposed new market.
15. In so far as the question relating to the encroachment upon the road is concerned, I found on my personal inspection that some temporary structures have been fabricated and put on a part of the Binoy Bose Road which is adjacent, rather next to the Lansdowne Market. It is in these temporary structures, as per the directions of Division Bench of this court and as per the order of Supreme Court, that the vendors and other stall holders would be temporarily shifted so that each phase of the construction is completed without actually disturbing the business of any occupier in the existing market. The fixation of these temporary structures is a wholly temporary phenomenon and thus the closure of the road is also a temporary phase. Even though this issue was indirectly dealt with by the Division Bench of this court and the apex court, yet I may also observe that the CMC has the power under Section 353 of the Act, read with the Calcutta Municipal Corporation (Transaction of Business of the Mayorin-Council) Regulations 1986. Second Scheduled to the 1986 Regulations contains entry 42 which clearly deals with the temporary closure of public streets and the determination of the conditions thereof. Section 353 of the CMC Act authorises the Municipal Corporation to permanently or temporarily close the whole or a part of the public street in public interest or for the purpose of carrying out the provisions of the Act. The Supreme Court in its order dated 11.7.95 had clearly observed about the provisions of an alternative site near the market being earmarked for accommodating the stall holders during the various phases of the construction. To the same effect are the directions contained in the judgment of the Division Bench passed on 1st March, 1995. The issue therefore stands closed and is not open for re-examination any more.
16. With regard to the second question, it was pointed out by the learned Advocate for the petitioners that the building plan for the reconstruction of the new Lansdowne Market has not been sanctioned by the CMC in accordance with the provision of Section 391 read with Section 396 of the CMC Act of 1980. Reliance was placed upon Rule 51 contained in Schedule 16 of CMC Act 1951 which has however been repealed by Section 635 of CMC Act of 1980. I have considered the submission regarding the non-sanction of the plan and find that even though the building plan is shown to have been approved by the Municipal Commissioner, yet a formal sanction as was required under Section 391 read with Section 396 of the Act has not been accorded. The question which thus requires consideration and the re-examination is whether the buildings owned and proposed to be constructed by CMC are exempt from the operation of Sections 391, 392, 393 and 396 of 1980 Act contained in Chapter XXII which make it obligatory and mandatory upon every person constructing any building to have a duly sanctioned building plan. These sections enjoin upon every such person intending to construct a building to obtain the sanction of the CMC in respect of the building plan of the building proposed to be constructed. Is there any provision in the Act which absolves the CMC from the rigour of obtaining prior sanction for such buildings where CMC itself is the owner and proposes to construct the building? I could not find any provision either in the CMC Act of 1980 or the Building Rules whereby, either expressly or by necessary implication, it could be inferred or deduced that the buildings owned and proposed to be constructed by the CMC are exempt for the requirement of obtaining the prior sanction under Section 391,392 and 396 of the Act. CMC, in the matter of operation of Sections 391,392 and 396 of the Act has been treated at par with other persons, as per the Scheme of the Act and the legislature in its wisdom did not draw any distinction between the CMC and other persons in the matter of obtaining the prior sanction for construction of a building. Mere fact that CMC, be it thought the Building Committee, the Mayor-in-Council or the Municipal Commissioner himself, is the authority to grant sanction for the construction of a building does not mean that CMC itself is exempted from the operation of this law when it comes to its own buildings. Had the legislature intended that the buildings owned by CMC need not obtain any prior sanction in accordance with the requirement contained in Sections 391 and 396 of the Act, it could have made specific provision to that effect in the Act itself. It therefore follows that mere accord of administrative approval by the Municipal Commissioner to a building plan does not meet with the requirements of Sections 391 and 396 of the Act. According of administrative approval by the Municipal Commissioner is different and distinct from the grant of statutory sanction by the CMC in accordance with the procedure prescribed under Section 391 and 396 of the Act. As these two sections clearly stipulate, the sanction processing has to be properly gone through at the level of the Building Committee and then put up before the Mayor-in-Council and it is only after these two bodies have considered and approved the building plan that the Municipal Commissioner records the sanctibn on behalf of CMC. Admittedly in the present case, the building plan was never put up before either the Building Committee or the Mayor-in-Council. The Municipal Commissioner himself has no statutory power in a case like the present one to grant statutory sanction under Section 391 and 396 of the Act. He only records the granting of statutory sanction after the building plan has been approved statutorily by the Building Committee and the Mayorin-Council.
17. In the facts and circumstances of this case however I feel that the omission to accord statutory sanction to the building plan is such an irregularity which appears to have occurred because of the lack of understanding of the legal provisions by the Corporation and its functionaries. It perhaps appears that the CMC Authorities were under a misconception about the applicability of the provisions of Sections 391, 392 and 396 of the Act and thus always took it that the property of the Corporation is exempt from the operation of these sections and hence there is no requirement of prior sanction of the building plan. Such an irregularity, based on the aforesaid bonafide misunderstanding of the legal provisions In my view is curable. It shall be open to the Corporation once again to process the case for granting the statutory sanction to the building plan for the proposed construction of the market. This is a fit case where the principal of ex post facto grant of sanction can easily be invoked in aid of advancing the cause of justice. Since the CMC did not grant the statutory sanction earlier, by invoking the aforesaid principal of ex post facto grant of sanction, this court has no hesitation in holding that the CMC shall be well within its rights to process the sanction case afresh for grant of ex post facto approval since the absence of the sanction earlier should not be deemed to come in the way of the CMC and respondent No. 13 in either the grant of the contract or the start of the construction activity. A mere irregularity, that too based upon a bonafide misunderstanding of the legal requirement cannot vitiate the award of contract or the start of the construction activity.
For the foregoing reasons therefore being unable to find any merit in this writ petition, the same is dismissed but without any order as to costs.
As prayed for, let certified xerox copy of this judgment be given to the learning Advocates for the parties within one week from the date of application for such copy.