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IN THE HIGH COURT AT CALCUTTA
Arijit Banerjee, Apurba Sinha Ray, JJ.
Sohan Lal Manpuria & Ors. – Appellants
Versus
Kolkata Municipal Corporation & Ors. – Respondents
FMA 774 of 2019
Decided On : 17-07-2023
KOLKATA MUNICIPAL CORPORATION ACT - Unauthorized construction - Private market - Running without requisite permission - Commissioner's order - Not addressing factual issues indicated by the Court - Remand - Fresh decision by Commissioner.
Fact of the Case:
Appellants, claiming to be owners of two plots of land in Jadavpur Municipality, alleged that private respondents set up a private market on their land without obtaining a sanctioned plan or requisite permission from the Kolkata Municipal Corporation (KMC) under Section 428 of the Kolkata Municipal Corporation Act, 1980 (KMC Act). They filed a writ petition which was disposed of by a learned Single Judge directing the Municipal Commissioner to consider their representation in light of the observations recorded in the judgment. The Commissioner passed an order after hearing all concerned parties, but the appellants challenged it, alleging that the Commissioner failed to consider the issues referred to him and raised irrelevant questions.
Finding of the Court:
The Court held that the Municipal Commissioner failed to consider and act in terms of the observations made by the learned Judge in the earlier writ petition and did not address the factual issues indicated by the learned Judge, such as whether there was a sanctioned plan, whether permission was obtained under Section 428 of the KMC Act, and whether there was a notification under Section 628 of the KMC Act. The Court found that the Commissioner's order was incurably bad as it did not follow the directions in the earlier writ petition.
Issues: 1. Whether the Municipal Commissioner addressed the factual issues indicated by the Court in the earlier writ petition. 2. Whether the Commissioner's order was perverse or without jurisdiction or breached the principles of natural justice.
Ratio Decidendi: 1. The Municipal Commissioner was bound to consider and act in terms of the observations made by the learned Judge in the earlier writ petition and was obliged to address the issues indicated by the learned Judge. 2. The Commissioner's order was not sustainable as it did not follow the directions in the earlier writ petition and failed to consider the factual issues indicated by the Court.
Final Decision: The Court set aside the impugned judgment and order of the learned Single Judge and the order of the Municipal Commissioner and remanded the matter to the Municipal Commissioner for taking a fresh decision on the representation of the appellants in light of the observations of the learned Single Judge in the earlier writ petition. The Commissioner was directed to take a fresh reasoned decision within 12 weeks from the date of communication of the order.
JUDGMENT :
Arijit Banerjee, J.
1. This appeal is directed against a judgment and order dated June 28, 2018, passed by a learned Single Judge whereby the appellants’ writ petition being WP 23340 (W) of 2017 was dismissed.
2. The appellants claim to be the owners of two plots of land which were originally within the Jadavpur Municipality. The two plots being RS plot no. 126/165 and 124/167 measure in excess of 35 acres. The appellants submitted before the learned Single Judge as also before us that the private respondents have set up a private market on their land without obtaining sanctioned plan for the buildings which have been constructed or requisite permission of Kolkata Municipal Corporation (in short “KMC”) under section 428 of the Kolkata Municipal Corporation Act, 1980 (in short the ‘the KMC Act’). They submitted that a representation was made by them to KMC regarding the unauthorized construction and running of the private market from their land. Since the KMC Authorities failed to address their grievance, they were constrained to file a writ petition being WP No. 25492 (W) of 2016.
3. The said writ petition was disposed of by a learned Single Judge by a judgment and order dated June 6, 2017. The relevant portions of the said judgment and order are extracted hereunder:-
........
Chapter XXIV of the said Act contains the exhaustive provisions relating to markets and the slaughter houses. The said chapter imbibed within itself the municipal markets and the private markets. Section 428 of the Act clearly provides that no place other than a municipal market shall be used as a market place unless such place has been licensed as a market by the Municipal Commissioner under Section 436 of the Act. The municipal licenses are dealt with under Chapter XXV. Section 435 thereof puts an embargo on any person to use any premises for any of the non residential purposes mentioned in Schedule V without the municipal license granted by the Municipal Commissioner. Though Article 19(1)(g) of the Constitution of India guarantees all citizens the right to practice any profession or carry on any occupation, trade or business but the same is not an absolute right which would be evident from Article 19(6) of the Constitution.
Sections 437 and 438 create an absolute prohibition against the establishment and / or opening of the market for public without the valid license. It is therefore manifest from the aforesaid provisions that the Municipal Commissioner has to form a conclusive opinion with precision and information whether such market is established in conformity with the aforesaid provisions or not.
A plea has been taken by the Corporation that the said market was established prior to the inclusion of the Jadavpur Municipality within the Kolkata Municipal Corporation. No records pertaining to any permission granted by the Jadavpur Municipality to establish and run the market for public nor any document relating to sanction being granted for construction of the shops or the stalls are produced. If the stand of the Corporation is considered to be true and correct for the sake of argument, yet it does not absolve the Corporation from arriving at the definite opinion on the various provisions of the Bengal Municipal Act, 1932. Chapter 17 of the aforesaid Act contains somewhat similar provisions to Chapter XXIV and XXV of the Kolkata Municipal Corporation Act. Identical prohibition is provided in the aforesaid Act and therefore the i
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