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2008 DIGILAW 44 (CAL)

Sankar Sarkar v. The State of West Bengal

2008-01-11

DIPANKAR DATTA

body2008
Judgment The issues in the three petitions being related, the same were heard together and would be governed by this common judgment. Admitted facts of these cases are: Petitioner no.1 in W.P. 17368 (W) of 2007 Aghore Sarani Maa Sarada Abasik Welfare Samity (hereafter the Association) is an association of flat owners in a housing complex named Maa Sarada Complex (hereafter the housing complex), located within Rajpur Sonarpur Municipality (hereafter the Municipality). There are nine multistoried buildings in the housing complex (numbered ‘A’ to ‘I’) consisting of several flats. Sankar Sarkar (hereafter Sankar), petitioner in W.P. No.15006 (W) 2007, has developed the housing complex. Alleging that Sankar and his son Sanjib Sarkar (hereafter Sanjib) [the petitioner in W.P. 20063 (W) of 2007] along with their associates had raised construction on the common area/space of Block ‘A’ (four shop rooms), allowed flat nos. 2, 3 and 4 of Block ‘I’ to be used as marriage hall, constructed a kitchen over the common space/area of Block ‘I’, structures and shed in the common space of Block ‘B’, started a shop by the name of Biryani Corner in flat nos. 1 and 2 of Block ‘B’, constructed structure and shed in the rear portion of ground floor of Block ‘A’ and had been using the same as parking space of their own private cars, all without lawful authority and/or permission from the Municipality, the Association had lodged objection with the Municipality by addressing representations on diverse dates urging it to take necessary steps in accordance with law. The objection was not considered by the Municipality resulting in filing of a writ petition being W.P. No.23865 (W) of 2006 by the Association. That petition was disposed of by a learned Judge of this Court on 11.12.2006 with a direction upon the Chairman of the Municipality to consider and dispose of the representation dated 23rd August, 2006 after giving opportunity of hearing to the Association and Sankar and to pass a reasoned order. Acting in compliance with the said order, the Chairman of the Municipality heard the parties (the Association and Sankar) on 11.1.07 and inspected the site on 20.1.07. Thereafter, he passed an order on 27.2.07 directing demolition of the unauthorized structures as indicated therein within 30 days from date of communication of the order as well as to stop the commercial use of all residential flats with immediate effect. Thereafter, he passed an order on 27.2.07 directing demolition of the unauthorized structures as indicated therein within 30 days from date of communication of the order as well as to stop the commercial use of all residential flats with immediate effect. The order dated 27.2.07 of the Chairman was challenged by Sankar in a writ petition being W.P. No.5949 (W) of 2007. That petition was disposed of on 5.4.07 by the self same learned Judge with a direction upon the Chairman of the Municipality to review the order dated 27.2.07 after inspecting the original as well as the alleged revised approved plan and other documents, and after giving opportunity of hearing to the parties. Such exercise was directed to be carried out within six weeks from date of communication of the order. The Municipality was restrained from taking any coercive step on the basis of the order dated 27.2.07 for a period of ten weeks. In compliance with the aforesaid order, the Chairman heard the parties once again. Upon hearing them and on consideration of the documents and papers submitted before him by Sankar, the Chairman again passed an order on 13.6.07 directing demolition of unauthorized construction indicated therein within 7 days from date of its receipt and to stop the commercial use of ground floor of Blocks ‘B’ and ‘I’ by Sankar without the permission of the Municipality, with immediate effect. This order dated 13.6.07 of the Chairman is the subject matter of challenge in the two petitions filed by Sankar and Sanjib whereas the Association in its writ petition, alleging inaction on the part of the Municipality, has prayed for a direction on it from this Court to implement the said order as well as the order dated 27.2.07. While Sanjib has challenged the order dated 13.6.07 on the ground that he was not heard and therefore there has been gross violation of the principles of natural justice, Sankar has challenged the order of the Chairman on various grounds, referred to below: 1. It is the specific case of Sankar that the fibre sheds being nonpermanent in nature cannot be termed ‘building’ within the meaning of Section 197 of the West Bengal Municipal Act, 1993 (hereafter the said Act) and hence no permission to erect the same was required; 2. No construction, whether kitchen or other room, was made on the septic tanks of Blocks ‘I’ and ‘B’. No construction, whether kitchen or other room, was made on the septic tanks of Blocks ‘I’ and ‘B’. It is, however, admitted by him that at times the employees of his son used to keep certain goods on the cover of the septic tank of Block ‘B’ but on being noticed, they were specifically directed not to keep anything there; 3. Rooms on the top floors of the buildings being Blocks ‘B’, ‘C’, ‘D’, ‘G’ and ‘I’ were made within permissible sanctioned heights and were sold by the owners long back and in respect thereof Sankar had virtually nothing to do; 4. Portion of Block ‘B’ is being used by his son Sanjib for running a business in the trade name and style of Biryani Corner after obtaining due and proper licence and permission from the concerned authorities including the Municipality and therefore running of business from the flats in question cannot be termed unauthorised; 5. Office building for the residents of the Complex has not been constructed by the petitioner, yet, he was asked to demolish such non-existing building. 6. No flat on the ground floor of Block ‘I’ was/is being used as marriage hall and that the concerned flat, which belongs to Sankar, is vacant and it is only on the request of some of the owners of the other flats who have good relation with him that they had been permitted to use the same for organizing reception on the occasion of marriage of their sons/daughters absolutely free of cost and without any charge whatsoever and for this no permission was required to be obtained from the Municipality. The respective cases of Sankar and Sanjib have been argued by a common learned Counsel. According to him, the Municipality all along was aware that Sanjib is the owner of the flat from where he runs the business under the name and style Biryani Corner. He argued that flats 1 and 2 of Block ‘B’ on the ground floor were purchased by Sankar in the name of Sanjib from one Sri Amit Kumar Das, being the vendor, and Sanjib started restaurant business in the year 2002 after obtaining necessary certificate of enlistment from the Municipality. In support thereof, he referred to the certificates of enlistment issued in favour of Sanjib for the years 2002-03 and 2006-07. In support thereof, he referred to the certificates of enlistment issued in favour of Sanjib for the years 2002-03 and 2006-07. He also referred to the licence issued by the Municipality on 19.4.02 in favour of Sanjib under Section 24(2) (b) of the Prevention of Food Adulteration Act, 1954. He submitted that for the purpose of running a restaurant or eating house, no permission was required to be obtained under Section 201(1) of the said Act since Schedule II thereof makes no reference of business of restaurant or eating house as one finds in the corresponding Schedule of the Kolkata Municipal Corporation Act, 1980; therefore, Sanjib was not required to obtain permission from the Municipality for putting his premises to use for non-residential purpose. The order dated 13.6.07 passed by the Chairman, he urged, visits Sanjib with civil consequences and having regard to the settled law that no order having the effect of civil consequences can be passed without hearing the party to be affected thereby, the order of the Chairman cannot be sustained in the eye of law. Nothing has been placed before this Court on behalf of Sanjib that after the deed of sale referred to above was executed, and Sanjib by dint of purchase had become the owner in respect of the ground floor flats of Block B, the Municipality was informed of such transfer. In fact, assessment list produced by learned Counsel for the Municipality proves the point that Sanjib’s name was never entered in the municipal records. It has been submitted by learned Counsel for the Municipality that in the absence of Sanjib’s name in the municipal records the Municipality was not under any obligation to serve notice on Sanjib. True it is, that the order dated 13.6.07 has been passed by the Chairman without putting Sanjib on notice. The contention as to whether by reason of non-service of notice/non-grant of opportunity to defend the proceedings stood vitiated need not be decided for reasons discussed hereafter for which this Court considers it unnecessary to direct the Municipality to serve notice on Sanjib and to hear him. Having regard to the history of litigations referred to above, it appears to this Court that the cause of Sanjib was espoused by his father Sankar in the earlier rounds and at no point of time Sankar claimed that Sanjib must be put on notice. Having regard to the history of litigations referred to above, it appears to this Court that the cause of Sanjib was espoused by his father Sankar in the earlier rounds and at no point of time Sankar claimed that Sanjib must be put on notice. That (i) the Association filed writ petition in the year 2006 and order thereon was passed by this Court on 11.12.06, (ii) an order was passed on 27.2.07 by the Chairman acting in pursuance thereof which was challenged by Sankar by filing a fresh writ petition, (iii) an order was passed thereon by this Court on 5.4.07 pursuant whereto the Chairman fixed a date of hearing wherein learned Advocate for Sankar produced relevant papers and urged various points inclusive of the point that Sanjib was the owner of the restaurant New Briyani Corner, and (iv) the impugned order was passed on 13.6.07 by the Chairman, are facts which have all been pleaded by Sanjib in his petition and verified as true to his knowledge. This Court has not found any averment in the body of the petition that Sanjib was not aware or ignorant of proceedings being conducted by the Chairman in pursuance of the Court’s orders. In such circumstances, this Court is constrained to hold that Sanjib is a fence-sitter who has questioned the order dated 13.6.07 by filing a writ petition on 12.9.07, only after this Court in its order dated 5.9.07 on the writ petition filed by the Association had expressed its mind that the writ petition may be disposed of without inviting affidavits. This Court is not convinced that Sanjib has approached it with a bonafide claim of having suffered real prejudice due to the action of the Municipality in not putting him on notice. The contention of learned Counsel for Sanjib that no permission was required to be obtained by Sanjib in terms of Section 201(2) of the Act is misconceived. Schedule II of the Act lists a number of items which cannot be stored or prepared or manufactured without a licence or permission, viz. bread, combustible material, fish, flour, gas, meat, oil, sweet meat. In course of hearing, copy of the menu card of Biryani Corner was produced before this Court. The genuineness thereof has not been disputed by learned counsel for Sanjib. bread, combustible material, fish, flour, gas, meat, oil, sweet meat. In course of hearing, copy of the menu card of Biryani Corner was produced before this Court. The genuineness thereof has not been disputed by learned counsel for Sanjib. It appears from the food items listed on the menu card that some of the articles referred to above are required to be stored to facilitate preparation or manufacture of food items while the other articles, in raw form, are cooked, prepared and served on the request of the customers. Therefore, the provisions of Section 201(1) are clearly attracted. It is true, as contended by learned Counsel for Sanjib, that Schedule II of the Act does not make specific reference to restaurant or eating house for which licence and/or permission is required to be obtained as is the requirement under the Kolkata Municipal Corporation Act but absence thereof in the said Schedule hardly comes to the rescue of Sanjib inasmuch as for storing meat, fish, flour etc. and for using gas or other material for manufacture of the finished products, the relevant entries of Schedule II have applicability and, therefore, Sanjib was bound to obtain permission or licence thereunder. Not having obtained the same, running of business of a restaurant or eating house despite issuance of certificate of enlistment and licence under other statutory provisions is absolutely unauthorized and this Court finds no reason to interfere with the order of the Chairman in this respect. The Municipality shall ensure that the restaurant business of Sanjib in the name and style Biryani Corner is stopped at once. However, while the Municipality shall be entitled to enforce its order dated 13.6.07 in so far as Biryani Corner of Sanjib is concerned, he shall not be precluded from applying for permission/licence and if such application is made, the Municipality shall consider it in accordance with law. So far as Sankar is concerned, this Court holds the same view that the claim put forward by him is also not bonafide. The averments made by Sankar in the present petition are clearly at variance with the statements made in his earlier writ petition being W.P. No. 5949(W) of 2007 which manifests an attempt to mislead the Court on factual aspects. The averments made by Sankar in the present petition are clearly at variance with the statements made in his earlier writ petition being W.P. No. 5949(W) of 2007 which manifests an attempt to mislead the Court on factual aspects. While in the earlier petition, the allegation regarding unauthorized construction was sought to be countered by him on the ground that the same had been erected pursuant to a revised plan sanctioned by the Municipality, the purported revised sanctioned plan annexed to that petition as well as the one which has been produced before this Court are not revised sanctioned plans at all as contended by learned counsel and, therefore, the justification sought to be advanced is of no avail. In addition, certain other justifications have been raised in respect of the unauthorized construction raised by Sankar, which have been referred to at an earlier part of this judgment. The same are taken up for consideration seriatim. i. Fibre sheds – The contention advanced on behalf of Sankar is that these are temporary structures for which no sanction is required since it does not come within the purview of the term ‘building’ within the meaning of Section 197 of the said Act. Learned Counsel for the Municipality referred to Rules 2(9A), 2(16) and 2(26), 47, 49 and 52 of the Municipal Building Rules 1996. He submitted that these sheds being affixed to buildings would constitute “building” as defined in the Building Rules and, therefore, could not have been affixed without permission from the Municipality. He further submitted that by such affixation the ground coverage has increased contrary to the sanction granted by the Municipality and, therefore, the same are liable to be removed. On perusal of the impugned order, this Court finds that the Chairman has recorded a conclusion that these fibre sheds are unauthorised without, however, specifying with reference to particular rules as to how they can be termed unauthorised. Justification sought to be provided by the learned Counsel for the Municipality is of no avail having regard to the law laid down by the Apex Court in AIR 1978 SC 851 : Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi. Justification sought to be provided by the learned Counsel for the Municipality is of no avail having regard to the law laid down by the Apex Court in AIR 1978 SC 851 : Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi. The direction for demolition of the fibre sheds accordingly stands set aside with a direction on the Chairman to pass a reasoned order according to law on the basis of the materials before him, as early as possible but positively within a fortnight from date of receipt of this order. ii. If the assertion of Sankar is to be believed that there is no construction, whether kitchen or any other room on the septic tanks of Blocks ‘B’ and ‘I’, he cannot be a person aggrieved as a result of the direction of the Chairman to demolish the same, for, according to him the order cannot be implemented in view of non-existence of any structures on septic tanks. The Chairman of Municipality shall therefore raze unauthorized constructions, if any, on the septic tanks of Blocks ‘I’ and ‘B’ without any delay. iii. So far as the rooms on the top floor of Blocks ‘B’, ‘C’, ‘D’, ‘G’ and ‘I’ are concerned, Sankar has alleged that the same were raised within the permissible sanctioned heights and sold by the owners thereof long back without Sankar having anything to do with it. If that be so, again, Sankar need not be aggrieved if the structures on the top floor of the aforesaid blocks are demolished. The Chairman shall also take steps to demolish the unauthorised structures. iv. It is the stand of Sankar that there is no existence of any office building constructed by him in the housing complex. It was the obligation of the Chairman to indicate with particulars the existence of such building. This has not been specified. The Chairman shall be at liberty to make further inspection upon notice to Sankar and if it is found to exist, he shall be at liberty to take appropriate action in respect thereof in accordance with law. v. Regarding the flats which had been allowed to be used for marriage purposes, this Court is unable to accept the contention of Sankar. v. Regarding the flats which had been allowed to be used for marriage purposes, this Court is unable to accept the contention of Sankar. It appears from the photographs placed before this Court that a hoarding of ‘marriage hall’ has been erected and adjoining space of the flats are being used as kitchen for such hall (not disputed by learned Counsel for Sankar) which belies the contention that the flats are being occasionally used for marriage purposes on the request of Sankar’s acquaintances. On the contrary, that the flats are rented for holding social functions is evident from the hoarding itself. In view of the same, the Municipality shall enforce the provisions of law and ensure that no activity takes place in any of the concerned flats other than purposes for which the same were allowed to be used, as specified in the sanctioned plan. Prayer made by the Association to direct the Municipality to implement its order dated 27.2.07, however, cannot be granted since it has merged in the subsequent order dated 13.6.07 and has no existence in the eye of law. With the aforesaid directions, the writ petitions stand disposed of without any order for costs.