Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation & Ors vs Sri Baladev Basu Alias Dave Basu & Ors on 14 June, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
And
The Hon'ble Mr. Justice Sankar Acharyya
MAT 699 of 2017
With
CAN 4953 of 2017
The Kolkata Municipal Corporation & Ors.
Vs.
Sri Baladev Basu alias Dave Basu & Ors.
For the appellants : Mr. Alok Kumar Ghosh
Mr. Ranajit Chatterjee
Mr. Subhrangsu Panda
For the respondent/ : Mr. Saurav Banerjee
writ petitioner Mr. Arnab Dutt
Mr. Shuvam Chattopadhyay
Heard on : 14th June, 2017.
Judgement on : 14th June, 2017.
Biswanath Somadder, J. :-
Affidavit of service filed in Court today be taken on record. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
This appeal has been taken out by Kolkata Municipal Corporation and its authorities.
The appeal arises out of a judgment and order rendered by the learned Single Judge on 22nd March, 2017 in WP 45 (W) of 2017 with CAN 280 of 2017 (Sri Baladev Basu alias Dave Basu vs. the Kolkata Municipal Corporation and others).
The subject matter of challenge in the writ proceeding appears to be a construction of pay and use toilet in front of the entrance gate of the writ petitioner's residence. The writ petition was filed at a point of time when such construction was under process. But during the pendency of the writ petition, on the basis of a report submitted by the Deputy Chief Engineer (civil), Bustee Service, KMC, it appears that the process of construction was virtually completed. The relevant provision of law which was taken into consideration by the learned Single Judge was section 353 of the Kolkata Municipal Corporation Act, 1980. It was argued before the learned Single Judge that the applicable law specifically prohibits such construction without a prior sanction from the Mayor-in-Council as well as the approval of the State Government. The learned Single Judge not only considered section 353 of the Kolkata Municipal Corporation Act, 1980 but also went on to consider certain other provisions of law including section 346 and section 347 of the Kolkata Municipal Corporation Act. The learned Single Judge also took into consideration the observations made by the Supreme Court in the case of Ashok Kumar Das and others vs. University of Burdwan and others, reported in (2010) 3 SCC 616 and came to the following conclusion:-
"In view of the proposition of law laid down in the above report, the post-facto sanction by the Mayor-in-Council cannot validate and/or cure the defects in proceeding with the construction of public utility. Though the disapproval has not come yet such approval did not come before the action is taken, which is one of the mandatory requirement under Section 353 of the said Act because of the word 'previous' being used before the sanction of the Mayor-in-Council.
Had it been a case that prior sanction was obtained from the Mayor-in-Council but the approval of the State Government was not taken, since such approval is not preceded with the word 'prior' and 'previous', the subsequent approval would take sufficient care of the aforesaid provision and shall not render the action void or in contravention to the provisions of the Act.
Since the previous permission of the Mayor-in-Council was not taken before embarking to construct the public utility, may be for the purpose of the Act or in the public interest, yet it falls on the parameters of the aforesaid provision and, therefore, cannot be allowed to remain.
There is no difficulty on the part of the Court to mould the relief, if by subsequent action or the act, in course of the writ petition if it becomes inappropriate.
Since the post-facto permission surfaced during pendency of the writ petition and this Court finds that it would not validate or render such action legal in view of the special expressions appearing in Section 353 of the said Act, this Court, therefore, directs the Kolkata Municipal Corporation to remove and/or demolish the public utility constructed in front of the entrance gate of the petitioner within two months from date.
The writ petition is, thus, disposed of.
In view of disposal of the writ petition nothing remains in the connected application filed under CAN 280 of 2017 and the same is also disposed of.
There shall, however, be no order as to costs."
According to the learned advocate representing Kolkata Municipal Corporation although prior sanction was not obtained from the Mayor-in- Council, such a sanction having been obtained subsequently for the purpose of creation of a public urinal cannot be held to be so fatal so as to necessitate a direction for its demolition. We are not at all impressed with the stand taken by the Kolkata Municipal Corporation for the reason that it is a matter of record that even at the time of filing of the writ petition, the concerned authority of Kolkata Municipal Corporation never chose to obtain prior sanction from the Mayor-in-Council or obtained approval of the State Government for construction of the public toilet, right in front of the entrance of the writ petitioner. The least Kolkata Municipal Corporation could have done was to obtain leave of the writ Court before obtaining any post-facto sanction from the Mayor-in-Council, which, in any event, was not in accordance with the relevant provision of law as discussed by the learned Single Judge at length in the impugned judgment and order.
In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed in the impugned judgment and order. Even a bare perusal of the impugned judgment and order reveals no such palpable infirmities or perversities.
The appeal and the application for stay, therefore, are liable to be dismissed and stand accordingly dismissed.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) sb.