The main legal point established in the judgment is the justification for issuing a notice under Section 412(1) of the Kolkata Municipal Corporation Act, 1980, based on building violations, and the absence of the requirement for prior hearing before action under Section 412.

JUDGMENT

Arijit Banerjee, J. - A judgment and order dated December 12, 2019, whereby W.P. No. 15249(W) of 2019 was disposed of, is the subject matter of challenge in this appeal.

2. The Writ petitioners approached the learned Single Judge challenging a notice dated July 31, 2019, issued under Section 412(1) of the Kolkata Municipal Corporation Act, 1980 (in short 'the said Act'). Section 412 of the said Act reads as follows:-

'412. Power to order building to be vacated in certain circumstances.- (1) The municipal Commissioner may, by order in writing, direct that any building, which in his opinion is in a dangerous condition or is not provided with sufficient means of egress in case of fire or is occupied in contravention of Section 396 or Section 403, be vacated forthwith or within such period as may be specified in the order:

Provided that at the time of making such order, the Municipal Commissioner shall record a brief statement of the reasons therefor.

(2) If any person fails to vacate the building in pursuance of such order, the Municipal Commissioner may direct any police officer to remove such person from the building and the police officer shall comply with such direction.

(3) The Municipal Commissioner shall, on the application of any person who has vacated or has been removed from any building in pursuance of any order or any direction, as the case may be, under this section, reinstate such person in the building as soon as the circumstances permit.'

3. Before the learned Single Judge as also before us, learned Advocate for the writ petitioners/respondents argued that no reasons have been recorded in the notice impugned as to why the Municipal Commissioner is of the opinion that the building in question is in a dangerous condition. Nor is it recorded in the notice that the building is not provided with sufficient means of egress in case of fire or that the building is occupied in contravention of Section 396 or Section 403 of the said Act. Recording of a brief statement of the reasons for which such notice is issued, is a statutory mandate in the proviso to Section 412(1) of the said Act. Hence the notice is bad in law. The impugned notice reads as follows:-

'Sir/Madam,

Please take notice that you are hereby required by the Municipal Commissioner vide his approval dated 11.01.2019 issued under Section 412(1) of the Kolkata Municipal Corporation Act, 1980 to vacate your possession of the building which is already declared as unauthorised construction and the same is under your occupation. A demolition programme will be carried out on 07.08.2019 at the case premises as per order of K.M.C. Authority and physically the present condition of the building is very much dangerous and unsafe not for inmates but also the neighbours of the adjacent premises.

You are hereby directed to vacate your possession at unauthorized portion of the building at the above mentioned premises occupied by you immediately after receiving the notice issued under Section 412(1) of the KMC Act 1980 to execute the demolition work smoothly.'

4. The learned Judge came to the conclusion that the opinion of the Municipal commissioner that the condition of the building is dangerous and unsafe for inmates is based on the premise that the building is unauthorised. He observed that an unauthorised construction does not necessarily mean that the same is in a dangerous condition or that it necessarily lacks sufficient means of egress in case of fire. The learned Judge held that the impugned notice was not in terms of Section 412(1) of the said Act and set aside the notice. However, the learned Judge noted that a notice under Sections 544/546 of the said Act had been issued invoking Section 400(8) of the said Act. His Lordship clarified that 'the Corporation might proceed in accordance with law factoring in that impugned notice is set aside.' Being aggrieved by the quashing of the notice under Section 412(1) of the said Act, the Corporation is before us by way of this ap