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Soham Lal Manpuria and Ors. Vs. Kolkata Municipal Corporation and Ors. - (High Court of Calcutta) (06 Jun 2017)

No place other than municipal market shall be used as a market place unless such place has been licensed as a market by Municipal Commissioner

MANU/WB/0391/2017

Civil

Present writ petition is filed for a direction upon corporation authorities to take steps for demolition of illegal construction and stoppage of illegal running of private market on lands of Petitioner. Subject matter of dispute discernable from writ petition pertains to firstly inaction on part of Municipal Commissioner to decide representation filed by Petitioners, and secondly, whether market established by market committee and constructions made thereupon is strictly inconformity with provisions of Kolkata Municipal Corporation Act, 1980.

Chapter XXIV of said Act contains exhaustive provisions relating to markets and slaughter houses. Said chapter imbibed within itself municipal markets and private markets. Section 428 of 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 Municipal Commissioner under Section 436 of Act. Municipal licenses are dealt with under Chapter XXV. Section 435 of Act, thereof puts an embargo on any person to use any premises for any of non-residential purposes mentioned in Schedule V without municipal license granted by Municipal Commissioner. Though Article 19(1)(g) of Constitution of India, guarantees all citizens right to practice any profession or carry on any occupation, trade or business but same is not an absolute right which would be evident from Article 19(6) of Constitution.

Sections 437 and 438 of Act create an absolute prohibition against establishment and/or opening of market for public without valid license. It is therefore manifest from aforesaid provisions that, Municipal Commissioner has to form a conclusive opinion with precision and information whether such market is established in conformity with aforesaid provisions or not.

A plea has been taken by Corporation that, said market was established prior to inclusion of Jadavpur Municipality within Kolkata Municipal Corporation. No records pertaining to any permission granted by Jadavpur Municipality to establish and run market for public nor any document relating to sanction being granted for construction of shops or stalls are produced. If stand of Corporation is considered to be true and correct for sake of argument, yet it does not absolve Corporation from arriving at definite opinion on various provisions of Bengal Municipal Act, 1932. Chapter 17 of aforesaid Act contains somewhat similar provisions to Chapter XXIV and XXV of Kolkata Municipal Corporation Act. Identical prohibition is provided in aforesaid Act and therefore, illegalities cannot get cured and/or validated as said municipality is subsequently included in Corporation.

Section 626 of Kolkata Municipal Corporation Act, indicates that, the moment any area is included within periphery of Kolkata Municipal Corporation Act, which was earlier within limits of municipality, Municipal Act governing shall be admitted to be repealed and provisions of Acts, Rules and Regulations framed under Kolkata Municipal Act, 1980 shall apply except State Government by notification may otherwise direct.

Illegal acts under repealed Act does not automatically get validated and/or receive legal sanction as said Act stood repealed by virtue of inclusion of area within territorial limits of Kolkata Municipal Act, 1980. Municipal Commissioner is required to consider those aspects, more particularly the notification issued and published by State Government at time of inclusion of Jadavpur area within territorial circumference of Kolkata Municipal Corporation.

Municipal Commissioner is directed to consider representation and shall decide same after affording an opportunity of hearing to Petitioner and all interested persons, by recording proper reasons within 4 weeks from date of communication of this order. Petition disposed off.

Tags : ILLEGAL CONSTRUCTION   DIRECTION   DEMOLITION  

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