Minerva Dairy & Farm v. Municipal Commissioner — 1993 DIGILAW 237 (CAL)

JUDGMENT 1. MINERVA Dairy and Farm, a registered partnership firm and its three (3) partners namely, Ranjit Singh Bengani, pratap Singh Bengani and Rajinder Singh Bengani have filed the present writ petition, praying, inter alia, :- (a) A writ and/or order or orders and/or direction or directions in the nature of Mandamus be issued calling upon the respondent authorities and/or each of them to show causes to why the purported notes dated July 17, 1991 and July 18 1991 issued in connection with the said flat by the respondent authorities be cancelled and/or withdrawn and/or quashed. (b) A writ and/or order or orders and/or direction or directions in the nature of certiorari be issued directing the respondent authorities and/or each of them to produce and/or transmit all papers documents and/or records duly certified in connection with the dispute herein before this Hon'ble Court so that conscionable justice may be done. (c) A writ and/or order and/or direction or directions in the nature of prohibition be issued prohibiting the respondent authorities and each of them from giving any effect and/or further effect to the said purported notices dated July 17, 1991 and July 18, 1991 issued upon the petitioners. (d) Rule Nisi in terms; of prayers (a), (b) and (c) above. (e) Injunction restraining the respondents and/or each of them and ' or their agents, employees or servants from taking any steps or further steps in connection with the said notices dated July 17. 1991 and July 18, 1991 till the disposal of this application. (f) A special officer be appointed for inspecting the said Hat and the repairs made therein and to submit a report to this Hon'ble Court. (g) Ad-interim order in terms of prayers (d), (e) and (f) above. (h) Costs of and/or incidental to this application be borne by the respondents. (i) Any further or other order or orders be made and/or directions be given as to this Hon'ble Court may deem fit and proper. 2. IT is stated in detail that by and under a registered indenture of lease dated February 24, 1988 entered into between the partners of the above firm namely petitioners Nos. 2,3 and 4 and M/s. Stephen Court Limited, the petitioners became lessees in respect of Flat No. 24a on the Fourth Floor of premises 18a Park Street, Calcutta. The petitioner's Nos. 2,3 and 4 and M/s. Stephen Court Limited, the petitioners became lessees in respect of Flat No. 24a on the Fourth Floor of premises 18a Park Street, Calcutta. The petitioner's Nos. 2, 3 and 4 allowed minerva Dairy and Firm the Petitioner Mo. 1 to become a monthly tenant in respect of the said flat at a rent of Rs. 6000/- per month with rights to sublet or sublease the said flat. It is placed on record that in between April, 1988 and October, 1989, the petitioners had carried out essential reparis of the said flat particularly of the existing wooden mezzanine floor which was in a bad state and the toilet of the said flat and also other urgent repair work. It is contended that while the said flat was being repaired, the petitioners were severly harassed by the respondent No. 4, residing at flat no. 22, Stephen Court, which is immediately below the flat of the petitioners. It is also placed on record that by a registered indenture of lease dated September 13, 1989 the said flat was sublet by the petitioner no. 1 to Eicher Moters Ltd., the respondent No. 5 for use of office space on terms and conditions stated in the said lease. According to the petitioners, the respondent No. 5 informed them that a notice being notice No. 5123. dated July 17, 1991 had been issued: by the respondent authorities Act, 1980 in respect of the said flat, asking for stoppage of all construction work at the said flat. On July 18, I991,the respondent Municipal Authorities, issued a further notice being notice No. CAB/2718 purportedly under section 401 (1) of the Calcutta Municipal Corporation Act 1980 alleging that police personnel had been posted at the said flat or prevention of continuance of unauthorised construction at the said flat. The petitioners have thus challenged the a foresaid notices complaining, inter alia, that the respondent No. 4, who is an influential person had made illegal demands. Since the petitioners could not oblige the respondent No. 4 the impugned notices have been issued by the Calcutta Municipal Corporation Authorities which are illegal and baseless. Stating all these facts the petitioners have come to this Court seeking reliefs on the ground that the notices have been issued by the Calcutta Municipal Corporation Authorities mechanically and with a total non-application of mind. Stating all these facts the petitioners have come to this Court seeking reliefs on the ground that the notices have been issued by the Calcutta Municipal Corporation Authorities mechanically and with a total non-application of mind. The impugned notices are arbitrary, defective and contrary to the statutory provisions and consequently they are invalid and illegal. It appears that the writ petitioners obtained interim orders dated 23rd September, 1991, U. C. Banerjee, J, was pleased to appoint Sri kalika Prasad Banerjee, a practising advocate, of this Court as Special officer to inspect the Premises in question to find out whether there exists any new construction as to enable the Corporation Authorities to issue a notice under Section 401 of the Calcutta Municipal Corporation Act, pursuant thereto the said Special Officer has filed this report on 30th september, 1991. The Special Officer inspected the flat of the petitioners only by giving notice to the Respondent No. 4. The Special Officer has reported that there is mezzanine accommodation having a height of 6ft with wooden floor with wooden staircase. Besides this said accommodation, there is a pantry, wooden staircase on the southern side of the hall. While he visited he did not find any new construction to enable the corporation authorities to issue notice under Section 401 or the Calcutta Municipal corporation Act. as submitted. 3. THE respondent, Calcutta Municipal Corporation Authorities have filed their affidavit -in- opposition, it is disclosed in detail that a letter of complaint dated 25th June, 1. 991 was received by the respondent No. 1 from L. P. Manet and Co., solicitors and advocates, on behalf of its client the respondent No. 4, in respect of unauthorised and illegal construction made at flat No. 24a, Stephen Court, 4th Floor, 18a, Park Street Calcutta On the basis of the aforesaid complaint a local inspection was caused by the district Building Surveyor cm 17-7-1991. It appeared from the said inspection report submitted by the District Building Surveyor, that the addition and alteration work were in progress at the said flat at the material point of time wherein a mezzanine floor with a special wooden staircase was constructed illegally. Moreover, two additional rooms have been constructed within the said flat. The respondent No. 5 was found to be a occupier of the said flat and the residential flat has been converted into office. Moreover, two additional rooms have been constructed within the said flat. The respondent No. 5 was found to be a occupier of the said flat and the residential flat has been converted into office. There is a further report on 6th August, 1991, submitted by the district Building Surveyor. Borough No. VII, that he also caused to inspect the said flat of the respondent No. 4 at the said premises No. 18, Park street. Calcutta. During inspection he observed that the outer walls of the hat on the south was damaged due to continuous seepage of sewer water from the toilet of the said flat of the petitioners. It is further revealed from the said report that the roof slab of the flat of the respondent No. 4 has also been damaged and in some part of the said roof (ceiling) signs of cracks have formed as also a portion of the corridor slab had fallen. The district Building Surveyor recommended: for immediate steps in the matter in accordance with law. On 20th September, the said inspection report of the District Building Surveyor, Borough No. VII, was forwarded to the respondent authority by the City Architect, and also by the Deputy municipal Commissioner (building) to (he respondent No. 1. The other allegations of the writ petitioners have teen denied. The respondent No. 4 who is claiming to be a Dental Surgeon having his residence -cum- chamber in flat No. 22, Stephen Court at 18, Park Street, Calcutta, has filed an affidavit on 23rd November, 1992 September, 1991 and 30th September, 1991 and for necessary direction upon the respondent, Calcutta Municipal authorities to take action forthwith for demolition of unauthorised construction made by the writ petitioners at Flat No. 24a, at Park Street, calcutta. The respondent No. 4 has placed on record that sometimes in the year 1990 the writ petitioners started 'certain work of construction of addition and alteration to their flat and upon enquiry the petitioner represented that simple repair work was being done. The respondent No. 4 has placed on record that sometimes in the year 1990 the writ petitioners started 'certain work of construction of addition and alteration to their flat and upon enquiry the petitioner represented that simple repair work was being done. The respondent No. 4 relied on such a version and after few months it was noticed that cracks have appeared on the ceiling of the room situated at the south eastern side of the flat of the respondent No. 4 and since: he tried to ascertain the causes of such displacement of plaster and cracks, he found that the writ petitioners had constructed a mezzanine floor in their flat. The writ petitioners have also constructed a toilet just above the kitchen and room of worship of the third party petitioner's (flat is most improper, irregular, unauthorised and illegal manner. He has alleged that the said construction and/or work of addition and alteration made by the writ petitioners are major in nature and the same are unauthorised the illegal and such unauthorised construction has resulted in total change of original nature and character of the said flat and they have caused extra heavy load over roof and walls of the flat of the respondent No. 4 without any sanction. Several cracks have appeared and those are enlarging gradually and they are serious danger to the lives and property of the respondent No. 4 and the members of the family. It is placed on record that the writ petitioners have neither obtained any permission from the owner of the said premises nor from the Calcutta Municipal corporation. The said construction, addition and/or alteration were carried out by the writ petitioners are unauthorised, illegal, wrongful and were carried in improper way and in violation of the provisions as contained in the Calcutta Municipal corporation Act. 4. THE above matter appeared in the list on various dates and as suggested and agreed by the learned lawyers appearing on behalf of the respective parties, the cases have been taken up for final disposal. Leave was granted to the parties to file further affidavits and to disclose the total document, they wanted to rely on; the corporation authorities have produced the case file and the records in original. Mr. Pratap Chatterjee, learned counsel appearing with Mr. Joydip kar, submitted that the impugned notices issued by the Corporation authorities are not proper. Leave was granted to the parties to file further affidavits and to disclose the total document, they wanted to rely on; the corporation authorities have produced the case file and the records in original. Mr. Pratap Chatterjee, learned counsel appearing with Mr. Joydip kar, submitted that the impugned notices issued by the Corporation authorities are not proper. The Corporation Authorities have moved at the instance of the respondent No. 4. Nothing new has been done by the writ petitions in their flat excepting certain essential repair works. The mezzanine floor and or the toilet were only repaired. He has taken the court through the deed of lease, the description of the flat given in the schedule and also sketch map annexed to one of the documents for service arrangement to indicate, inter alia, that there is indication of pillars to understand the existence of Mezzanine floor for a long time. Even if those constructions were made without any sanction, they must be existing for a long time, and the petitioners took the lease of the flat with the mezzanine floor and addition and alteration and there is no reason to issue notices under Section 401 and 401 (1) by the Calcutta Municipal Corporation authorities at a belated stage and the impugned notices are misconceived. Mr. Chatterjee, has also developed his argument that if there is any dispute between the writ petitioners and the respondent No. 4, the same cannot be resolved before the writ court. If there is any case of nuisance and unauthorised construction as alleged by the respondent No. 4, the respondent No. 4 cannot obtain any relief even if the writ petition fails. For damages, if any, the respondent No. 4 has to file a civil suit and/or to move, any other appropriate forum. 5. MR. Mihir Roy, learned advocate, for the Calcutta Municipal Authorities has argued by drawing attention of this court to the reports of building surveyor, Borough committee. He has also drawn the attention of the court that there is no permission nor any sanction for any construction and/or addition and alteration at the flat of the writ petitioners. On the contrary in the report of the Special Officer there is mention of the existence of mezzanine floor and the staircase. He has also drawn the attention of the court that there is no permission nor any sanction for any construction and/or addition and alteration at the flat of the writ petitioners. On the contrary in the report of the Special Officer there is mention of the existence of mezzanine floor and the staircase. The petitioners have not been able to show any permission of the Calcutta Municipal Corporation authorities for not making alleged addition and alteration within the flat which have substantially caused damages to the flat of the respondent No. 4. The attention of the court has also been drawn to the report dated 6th august, 1991 which is quoted herein below "refer your above note dt. 5-8-91. I have caused inspection to the flat of Dr. J. R. Dutta, 3rd floor. During inspection it was observed that the outer walls of the flat on the south is damaged slight due to continuous seepage of sewer water from the toilet of 4th floor of Sri bengani. This toilet is perhaps illegally been constructed. At present the outer wall of Dr. Dutta's flat is dry as I am told that the occupiers on the fourth floor had already stopped usuing the same. Further, it was also observed that the roof slab of Dr. Dutta's flat has since been damaged. The part of roof (ceiling) where there were sign of cracks and a portion of the concrete the slab had already fallen, thereby exposing the M. S. reinforcement. This room is being used by Dr. Dutta is bedroom. For which, he has panicked. I have perused the report as annexed of Shri Abhijit Sengupta. B. E. (Civil) A. M. I. E. date. 3-5-91 and accordingly 1 confirm that his observations made thereof are correct. In view of above, it is recommended to demolish the mezzanine floor on the 4th floor occupied by Sri Ranjit Singh Bengani, flat No. 24a under Section 400 (8) of C. M. C. Act 1980 as to release the additional lead from the floor so that any accident occurs. . Submitted, sd/- illigible 6. 8. 91. 6. MR. Roy has further submitted that the impugned notices are proper, legal and valid in as much as the petitioner have illegally made unauthorised construction without any permission, and as such steps have been taken, under Section 401 (1) of the Calcutta Municipal Corporation Act. . Submitted, sd/- illigible 6. 8. 91. 6. MR. Roy has further submitted that the impugned notices are proper, legal and valid in as much as the petitioner have illegally made unauthorised construction without any permission, and as such steps have been taken, under Section 401 (1) of the Calcutta Municipal Corporation Act. It envisages where the erection of any building of 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 as 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. It will appear from the report that there is recommendation for taking action under Section 400 (8) of the Calcutta municipal Corporation Act. It is provided that notwithstanding anything contained in Chapter XXII, if the Mayor in Council is of the opinion that immediate action is called for in relation to a building or a work which is being carried or 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. Mr. P. K. Roy, learned counsel, appearing for the respondent No. 4 has submitted that the respondent has placed on record all the relevant facts and material document to indicate, interalia, that the addition and alteration made in the flat: of the writ petitioners are unauthorised in nature. They are causing serious damages to the flat of the respondent No 4. He his futher conceded that the respondent No. 4 has contested the proceeding to show that the writ petitioners will be bound by the steps to be taken by the C. M. C. authorities to remove the unauthorised portions of the work carried out the flat of the writ petitioners. He has also conceded that by dismissal of the writ petition the respondent No. 4 cannot obtain any relief from this court for sustaining damages. He has to take appropriate action before the appropriate forum. He has also conceded that by dismissal of the writ petition the respondent No. 4 cannot obtain any relief from this court for sustaining damages. He has to take appropriate action before the appropriate forum. The submission of the respondent No. 4 is that the hurdle made by the writ petitioners to restrain the Calcutta municipal Corporation authorities to take appropriate actions for removal of the unauthorised construction of the writ petitioners will be removed by the disposal of the writ petition and by vacating interim orders. 7. HAVING heard the learned lawyers of the respective parties an upon perusal of the affidavits and the documents annexed to their affidavits and the records produced by the Calcutta Municipal Authorites, this court is of the view that the writ petitioners obtained lease of the flat in question by an admitted document of indenture of lease and in the schedule there is mention that the flat No. 24a at the 4th floor of the premises No. 18a Park street (Stephen Court Calcutta) consists of one bedroom, one hall room, one pantry, one passage, one bathroom, one covered verandah, one kitchen room and one box room and butted and bounded as follows :- On the North - Park Street on the South - Compound of 18a, Park street on the East - Flat No. 24 on the West - Flat No 31 8. THERE is no mention of the floor and there is no mention of additional construction as it appears from the reports of the Building Surveyer. The petitioners have not been able to produce any document as to sanction and/or permission for raising any additional and unauthorised construction. The reference of the sketch plan annexed to the document dated 6th day of January, 1989 does not indicate as to the existence of the mezzanine floor, stair case, the new toilet: and all other additions and alterations. The petitioners have not been able to produce any document as to sanction and/or permission for raising any additional and unauthorised construction. The reference of the sketch plan annexed to the document dated 6th day of January, 1989 does not indicate as to the existence of the mezzanine floor, stair case, the new toilet: and all other additions and alterations. It will also appear from the letter dated 15th July, 1991 written by the lessor of the writ petitioners namely Stephen Court Limited copy whereof is annexed 'h' at page 38 of the petition filed by the respondent No. 4 with the affidavits sworn on 23rd November, 1992, it will appear that the Stephen Court Limited has made it clear that addition and alteration of substantial nature namely construction of new mezzanine floor and extra toilet are alleged to have been made by the writ petitioners without intimating the lessor and without sanction and permission from the municipal authorities. Stephen Court Limited promised to take up the matter with the lessee to remove forthwith all such constructions made in the demised flat which have been done without any sanction from the municipal Authorities. Looking at the said documents, this court is of the view that the lessor of the writ petitioners did not lease out the flat with the mezzanine floor, additional toilet and other additional constructions to the writ petitioners at the time of the grant of the lease. The contention of the writ petitioners that these constructions wane remaining at the time of the. execution of the lease is without any merit, from the materials on record as produced, this court is convinced that the writ petition have made unauthorised construction of mezzanine floor, staircase, toilet and other additions and alteration; and the reports of the Building surveyor indicate the true state of affairs. This Court is further of the view that the steps taken by the Calcutta Municipal Corporation Authorities is issuing the notices under Section 401 and 401 (1) of the Calcutta Municipal Corporation Act are consistant with the provisions of the law and the issuance of such notices is all the more justified. This court is also convinced that the writ petition is mis-conceived and it is intended to stall the proceedings at the instance of the Calcutta Municipal Corporation Authorities for removal of unauthorised constructions at the flat in question. This court is also convinced that the writ petition is mis-conceived and it is intended to stall the proceedings at the instance of the Calcutta Municipal Corporation Authorities for removal of unauthorised constructions at the flat in question. For the foregoing reasons this court does not find any merit in the writ petition to interfere. It is also observed that in the fitness of things the respondent. Calcutta Municipal Corporation Authorities, should take prompt steps as contemplated under Section 400 (8) of the C. M. C. Act to remove the unauthorised portions of work at the flat and the continuance of such unauthorised' portions are likely to cause severe damages to the lives and property of the respondent No. 4. With these observations and findings, the writ petition is dismissed and all interim orders are vacated. There will however be no order as to costs. Petition rejected.