Calcutta High Court (Appellete Side)
Smt. Ila Mitra & Anr vs The Kolkata Municipal Corporation & Ors on 9 July, 2019
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
BR 9.7.2019
08
W.P. 11394 (W) of 2019
+
CAN 6071 of 2019
Smt. Ila Mitra & anr.
-vs-
The Kolkata Municipal Corporation & Ors.
Mr. Raghu Nath Chakraborty,
Mr. Debashis Banerjee,
Mr. Partha Sarathi Das ... for the petitioner
Mr. Alak Kumar Ghosh,
Ms. Manisha Nath ... for the KMC
Petitioner has filed the present writ petition
assailing the impugned notice dated 7th December,
2018 under Section 400(1) of the Kolkata Municipal
Corporation Act, 1980. Immediately thereafter on 15th
February, 2019 petitioner made an application under
third proviso of Section 400 which is quoted below:
"Provided also that the Municipal Commissioner
may by order , on such terms and conditions and on
payment of such fees as may be prescribed by
regulation, regularise the minor unauthorised
erection or execution of any minor work without
sanction under this Act, or minor deviation from the
sanctioned plan or execution of any minor erection or
work in contravention of any sanctioned plan under
this Act or the rules or the regulations made
thereunder , as the case may be.
Provided also that the Municipal Commissioner
may, by order, delegate his powers and functions
under the first proviso and the third proviso of this
sub-section to the Special Officers, appointed by the
2
Municipal Commissioner with the approval of the
State Government on such terms and conditions as
may be determined by the Corporation , and expenses
for payment of such officers shall be borne on the
Municipal Fund".
Unfortunately till date no step has been taken
by the Corporation to take a decision in respect of the
petitioner's pending application.
Mr. Chakraborty, learned advocate appearing
for the petitioner submits that in respect of other
cases, respondent-Corporation has already
regularised some illegal unauthorised construction upon making payment. Unfortunately in case of the petitioner, respondent authority is sitting tight over the petitioner's application. Mr. Chakraborty further contends that under Section 400 sub-Section 8 shall not be exercised in a routine manner. In support of his contention Mr. Chakraborty relies on a decision reported in 2007(2) CLJ (Cal) para 27 which is quoted below:
"27. In terms of the Kolkata Municipal Corporation (Transaction of Business of the Mayor-in- Council ) Regulations, 1986 (hereafter the said Regulations ), all cases referred to in the second schedule of the said Regulations shall be brought before the Mayor-in-Council in accordance with the provisions contained in Part-II thereof. Second Schedule to the said Regulations lists demolition of construction in contravention of the provisions of the Act (Section 400 (8) ] at SL. No. 52 as one 3 requiring sanction of the Mayor-in-Council . Reg. 13 of the said Regulations provides that a case referred to in the second schedule has to be submitted to the Mayor through the Municipal Commissioner after consideration by the department concerned with a view to obtaining his orders for circulation of the case or for bringing up for discussion at a meeting of the Mayor-in-Council. From the resolutions of the Mayor In Council extracted above, it is clear that the same were not adopted pursuant to circulation but on the basis of discussion , and hence the relevant statutory provisions in this behalf are considered hereafter. In respect of cases to be brought up for discussion , the department concerned in terms of Reg. 15(1) is required to prepare a Memorandum indicating with the sufficient precision the salient facts of the case and the points for decision. It is also the requirement of Reg. 15 that such Memorandum alongwith such other papers that are necessary for disposal of the case shall be circulated to the members after the Municipal Commissioner has seen them. Reg. 16(2) Provides that the Mayor has to approve the agenda paper showing the cases to be discussed at a meeting of the Mayor-in-Council and only thereafter copies thereof together with copies of such Memoranda that have not been circulated under Reg. 15(1) shall be sent up to the Members by the Council Secretary so as to reach them two clear days before the date of such meeting . In case of emergency , however, the Mayor is empowered to 4 reduce the said period. Reg. 15(1) by itself , thus, is not mandatory in view of Reg. 16(2). Reg.16(3) provides that " except with the permission of the Mayor, no case shall be placed on the agenda of a meeting unless papers relating thereto have been circulated as required by Paragraph (1) of Regulation
15." Reg. 16(3) in view of the words "except" and "unless" in it, without doubt , is ambiguously worded. Requirement of adherence to Reg. 15(1) has been allowed to be dispensed with but not the requirement envisaged in Reg. 16(2). Harmoniously construed in the light of Section 400 (8) , it would mean that a particular case calling for emergent action even without calculation of the relevant papers to the members of the Mayor-in-Council may be placed on the agenda for discussion, if permitted by the Mayor. However, having regard to the scheme of Section 400 , this Court would hold that such a course of action is not to be adopted in all cases but only sparingly , in cases of grave emergency. This Court would also read in Reg. 16(3), to obviate an allegation of arbitrary action, the requirement of recording of the Mayor's satisfaction while granting permission that the case in hand is one which cannot brook any delay and hence has to be placed on agenda for discussion and decision dispensing with the requirement of circulating the papers to the member of the Mayor-in-Council."
Mr. Chakraborty further contends it is the Corporation who is under obligation to dispose of the 5 petitioner's application filed under Section 400 of third proviso. In support of his contention Mr. Chakraborty relies on a Single Bench decision reported in (2014) 3 CAL LT 706 (HC), paras 3 and 4 are quoted below :
"3. Having regard to the fact that there is nothing on record to show the existence of immediate threat to public safety, I feel that the Municipal authority need not resort to the provision contained in sub-section 8 of Section 400 of the Kolkata Municipal Corporation Act for immediate demolition of the construction made on the 6th floor of the said building, particularly in view of the fact that the petitioner's application for sanction of the revised plan for regularising 6th floor construction in the said building is still awaiting consideration before the Municipal Authority.
4. Accordingly, this Court disposes of the writ petition by directing the Municipal authority to proceed under Section 400 (1) of the Kolkata Municipal Corporation Act instead of proceeding under sub-section 8 of section 400 of the said Act in respect of the unauthorised construction which was made by the petitioner in deviation from the sanctioned plan. While doing so the Municipal authority will first consider the petitioner's application for sanction of revised plan and thereafter take the ultimate decision regarding demolition of the unauthorised construction allegedly made by the petitioner in the said building in deviation from the 6 sanctioned plan, provided such unauthorized construction cannot be retained as per the Building Rules framed under the Kolkata Municipal Corporation Act, 1980".
Therefore, in conclusion Mr. Chakraborty submits without disposing the petitioner's pending application the respondent-Corporation cannot take any coercive action against the petitioner.
Per contra, Mr. Ghosh, learned advocate appearing for the KMC submits it is the prerogative and discretion of the Corporation whether they will dispose of the petitioner's application or not. Petitioner cannot dictate the Corporation to dispose of the petitioner's application. If the Corporation considering the nature of deviation thinks fit that without disposing the petitioner's application Corporation should take resource of Section 400 (8) then Corporation is at liberty to do so.
Considering the submissions as advanced by the learned advocates for the parties and after perusing the records, I find that long back on 7th December, 2018 notice under Section 400 (1) was issued against the petitioner. Immediately thereafter on 15th February, 2019 petitioner filed an application for regularisation of his unauthorised construction upon making payment as per third proviso of Section
400. Unfortunately, the respondent- Corporation is sitting tight over the petitioner's application.
Considering the above, I direct the Municipal Commissioner or any of his delegate to take a decision 7 in respect of the petitioner's pending application dated 15th February, 2019 without any further delay but positively within six weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner or his authorised representative and thereafter communicate the decision to the petitioner within one week. Till the decision is communicated to the petitioner the respondent authority is restrained from taking any coercive action against the petitioner.
With this direction the writ petition and also the CAN application being no. 6071 of 2019 is disposed of.
No order as to costs.
Urgent photostat certified copy of this order, if applied for , be given to the learned advocate for the parties on usual undertakings.
( Samapti Chatterjee, J. )