WP No.790 of 2016 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE MRIDU BAGARIA Versus KOLKATA MUNICIPAL CORPORATION & ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date : 8th November, 2016.
Appearance: Mr.Saptangshu Basu, Sr.Advocate Mr.Kaushik Dey, Advocate Mr.Sudhakar Prasad, Advocate Mr.P.Basu, Advocate for the petitioner Mr.Saumabho Ghosh, Advocate Mr.Sanjoy Bose, Advocate Mr.A.Sinha, Advocate for the private respondents Mr.Gurudas Mitra, Advocate Mr.D.Ghorai, Advocate for Kolkata Municipal Corporation The Court: We are here concerned with premises No.92A Jamunalal Bajaj Street, Kolkata 7.
This has several storeys.
In the photographs annexed to the petition and also handed up to this Court by Mr.Ghosh, the building is in a most dilapidated condition.
Although the orders under Section 411(1) and 411(2) of the Kolkata Municipal Corporation Act 1980 issued by the Corporation requiring its repair and for removal of the occupants therein are not on record, they have been brought to the notice of the Court by learned Counsel for the Corporation and Mr.Ghosh for the private respondents.
Mr.Basu, Sr.Advocate for the petitioner submits that these orders were not served upon his client.
His client claims to be a tenant in respect of the first, second and third floors of the said premises.
Mr.Basu submits that in the guise of implementing these orders of the Corporation, there is threatened dispossession of his client.
Mr.Ghosh submits that the petitioner is not an occupant of the premises.
It does not have the fiRs.or second or third floor.
In fact, according to him, the premises is vacant.
Sections 411(1) and 411(2) of the said Act are in the following terms :“411.
Power to order removal of dangerous buildings – (1) If any wall or building, or anything affixed thereto, be deemed by the Municipal Commissioner to be in a ruinous state, or likely to fall, or to be in any way dangerous, he shall forthwith cause a written notice to be served on the owner and to be put on some conspicuous part of the wall or building or served on the occupier, if any, of the building, requiring such owner or occupier forthwith to demolish, repair or secure such wall, building or thing, as the case may require: Provided that in the case of a heritage building, the Municipal Commissioner may refer the state or the conditions thereof to the Heritage Conservation Committee for its consideration and decision.
(2) The Municipal Commissioner may, if it appears to him necessary so to do, cause a proper hoarding or fence or other means of protection to be put up at the expense of the owner of such wall or building for the safety of the public or the inmates thereof; and may, after giving them such notice as the Municipal Commissioner may think necessary, require the inmates of the building to vacate it.” Under Section 411(1) the Municipal Commissioner on being satisfied that the building is ruinous or dangerous may immediately ask the owner or occupier to demolish or repair or secure the building.
If this sub-section is read with sub-section 2, the Commissioner is empowered to give such notice as he thinks necessary to the “inmates” of the building and require them to be evicted from it.
On a harmonious construction of these two sub-sections 1 & 2, I tend to think that if a building is occupied by persons and it has to be repaired or secured by their eviction, then a proper notice has to be given to those persons before such an exercise is allowed to be undertaken by the owner or occupier, by the Corporation.
The building in question is stated to have an occupier/occupiers It appears that in this case no such notice was issued to the occupier or occupieRs.A notice is not contemplated just for the sake of formality.
The “inmates” have to be heard before a plan for repairing or securing the building is drawn up and executed.
This is so because if it is not repaired or secured in a proper manner, they are likely to be affected by it.
This can be called a civil consequence.
Specially so, if the attempt to repair and secure is aimed at evicting the occupants.
I am of the opinion that initially the basic facts have to be established.
The building has to be properly identified by Joint Special Officers appointed by the Court.
At this stage, Mr.Ghosh even goes to the extent of contending that there are no second, third or fourth floors in the building.
The occupancy status has to be ascertained.
In those circumstances, I appoint Mr.Udayan Chakraborty, Advocate of Bar Library Club at an initial remuneration of 1000 GMs and MRS.Swati Mukherjee, Advocate, Bar Association Room No.14 at an initial remuneration of 600 GMs.as Joint Special Officers to inspect the premises and report to this Court with regard to the nature and condition of the building and its occupancy status.
The remuneration of the Joint Special Officers are to be borne by the petitioner and the private respondents equally.
The inspection should be made upon notice to the owners and occupieRs.A report should be filed in this Court by 21st November, 2016.
Simultaneously a copy of the report should be sent to the Commissioner of Kolkata Municipal Corporation.
He will order a hearing to be given to the owner and occupieRs.and to take a reasoned decision based on this report, with regard to repair and securing of the building.
He should keep in mind the interest of the owners as well as the occupieRs.The decision should be made within two months of furnishing of the report by the Joint Special OfficeRs.The Municipal Commissioner may delegate this work if permitted to do so.
The orders so passed by the Commissioner should also be filed in this Court.
Till the Commissioner is able to take a decision under Section 411(1) & 411(2) on the basis of the report of the Joint Special OfficeRs.the private respondents should not further continue with the repair or demolition work in the building.
This writ application is kept pending.
It is formally admitted.
Affidavit in opposition is to be filed by 28th November 2016.
List this application on 14th December, 2016.
Affidavit in reply may be filed in the meantime.
I make it clear that from now on whoever wishes to occupy the premises will do so on his/her own risk and peril.
Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.P.MUKERJI, J.) G/