(Sudhanshu Dhulia and Ahsanuddin Amanullah, JJ.)
Pritha Nandy _______________________________________ Petitioner;
v.
State of West Bengal and Others ___________________ Respondent(s).
Special Leave Petition (C) No. 23759 of 2024, decided on December 13, 2024
The Order of the court was delivered by
Order
1. The petitioner has come before this Court challenging the final judgment and order of a Division Bench of the Calcutta High Court (“Division Bench”) dated 10.05.2024 in M.A.T. No. 280 of 2024. The Division Bench confirmed the common judgment of a Single Judge of the Calcutta High Court whereby W.P.O. No. 1351 of 2023 and W.P.A. No. 5978 of 2023 filed by the petitioner were dismissed.
2. Facts of the case are as follows:
The petitioner and her sister-in-law (Respondent no. 11 herein) are the joint-owners of premises no. 99A, a double storeyed building located in Bidhan Sarani, Kolkata.
There were two tenants on the ground floor of said premises-Susanta Sutar (Respondent No. 10 herein) who was in possession of two shops, and Jiban Krishna Bhowmick (since deceased, represented by his legal heirs Respondent nos. 5-9 herein) who was in possession of one shop.
The petitioner alleges that following the death of Jiban Krishna Bhowmick, his legal heirs (Respondent nos. 5-9), in collusion with Respondent No. 10 and with the indulgence of Respondent No. 11, gave possession of the shop rented out to their predecessor-in-interest to Respondent no. 10.
Thereafter, Respondent No. 10, in order to create a single large room, demolished the load bearing partition wall between the shops and covered the entire roof with iron columns and steel joists. This action, according to the petitioner, damaged the structural integrity and stability of the building (which in any case is an old structure), and endangered the safety and security of its occupants.
The petitioner alleges that the alterations were done neither with the petitioner’s permission nor with the authorization of the Municipal Corporation. Hence, such action is alleged to be in violation of:
(i) The tenancy agreement between the petitioner and respondent no. 10
(ii) S.5(4) of the West Bengal Premises Tenancy Act, 1997, which provides that a tenant shall not make any addition to or alteration in the demised premises without the written consent of the landlord
(iii) Building Rules, 2009 framed under the Kolkata Municipal Corporation Act, 1980 (“KMC Act”)
3. The petitioner submits that she made complaints and representations before the police as well as Municipal Corporation against the actions of Respondent no. 10. Aggrieved by the inaction of these authorities, she approached the Calcutta High Court by filing Writ Petitions.
4. Apart from the Writ Petitions, the petitioner has also filed two suits, details of which are as follows:
a. Title Suit No. 464 of 2022 before the City Civil Court at Kolkata praying for declaration that Respondent No. 10 has no right to convert the tenanted road side shop room into a big room by demolishing the load bearing partition wall.
b. Title Suit No. 472 of 2022 before City Civil Court at Kolkata praying for partition of the property.
5. The petitioner contended that she had obtained stay orders dated 08.03.2022 and 27.02.2022, respectively, in the abovementioned suits. Hence, the alterations made to the building were also in violation of said stay orders.
6. The respondents, on the other hand, argued that the alterations to the premises were made in compliance with notice dated 12.03.2022 which had been issued by the Kolkata Municipal Corporation under S.411(1) of the KMC Act to the owner/occupier of the premises in question, and no authorization was required to undertake said alterations.
7. S.411(1) of the KMC Act reads as follows:
“S.411. Power to order removal of dangerous building
(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.”
8. In the present case, admittedly, a notice under S.411(1) of the KMC Act had been issued. The petitioner, however, contended that the said notice was collusive in nature.
9. The Division Bench considered the specific question of whether Respondent no. 10 has made constructions in violation of Building Rules framed under the KMC Act, which is the primary grievance of the petitioner.
10. The Division Bench perused the report dated 16.10.2023 prepared by the Director General (Buildings), Building Department, Kolkata Municipal Corporation in compliance with the order of the High Court dated 25.09.2023. The report reads as follows:
“In compliance with the solemn order of the Hon’ble High Court, Calcutta dated 25.09.2023 the undersigned inspected the captioned premises on 16.10.2023 with prior intimation to all the parties. At the time of inspection all the necessary parties were present.
During inspection it is found that there exists a two storied old building which is used both for residential and commercial purpose. After thorough spot inspection it is found that few columns of steel joist are in existence there at the roof of the two storied building. The steel joist columns appear to stand thereon since long. The structure at the top cannot be treated as unauthorized construction. The demolition of the internal partition walls is not considered as an unauthorized construction work. So, the structure at the top of the roof and the demolition of the internal walls cannot be treated as unauthorized.
During inspection it is revealed that the two storied old existing building has been thoroughly renovated to secure the building on the basis of the notice served under Section 411(1) of the KMC Act, 1980 for safety and security of the inmates of the building and public in general.”
11. Placing reliance on the contents of the above report, the Division Bench concluded that there had been no violation of the KMC Act because the alterations were made in compliance with a notice under S.411(1), and the nature of alterations does not require prior permission from the statutory authority in terms of the Building Rules framed under the KMC Act.
12. The Division Bench thus concluded that there has been no unauthorized construction and only such alterations had been made which would secure the building in light of the safety and security of occupants as well as the public at large.
13. We have perused the record and heard the arguments made at the bar. We find no reason to interfere with the final judgment and order of the Division Bench, which has rightly held that the alterations to the premises in question were not unauthorised inasmuch as they were carried out by the occupier in compliance with a statutory notice under S.411(1) of the KMC Act.
14. A notice under S.411(1) of the KMC Act is concerned primarily with safety of a building’s inhabitants as well as safety of the public at large, whereas the West Bengal Premises Tenancy Act, 1997 governs the relationship between the tenant and landlord. As stated above, the petitioner has already filed Title Suit No. 464 of 2022 before the City Civil Court at Kolkata praying for declaration against Respondent No. 10 in relation to the demolition of the partition wall, which is also the subject matter of the present proceedings. The law will take its own course in said suit.
15. This Special Leave Petition is accordingly dismissed.
16. Interim orders, if any, stand vacated. Interlocutory applications, if any, stand disposed of.
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