CPAN/1057/2024 of SOHAN LAL MANPURIA AND ORS Vs BINOD KUMAR IAS on 8 September 2026

1. This contempt application has been taken out alleging willful violation of a judgment and order dated July 17, 2023, passed by us in FMA/774/2019. The petitioners had initially approached a learned Judge of this Court by filing WP 25492(W) of 2016, alleging unauthorized construction of a market on their land. By a judgment and order dated June 6, 2017, the said writ petition was disposed of. The relevant portion of the said order reads as follows:- “……. Now, it is the turn of the petitioner to approach this Court by filing the instant writ petition as the market is established by making illegal constructions at the aforesaid plots in gross violation of the provisions of the Kolkata Municipal Corporation Act, 1980. It is, therefore alleged that the comprehensive representation made with the Municipal Commissioner to take immediate steps is not attended and for such inaction the direction is sought in the instant writ petition upon the said authority as stated earlier.

........ 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 illegalities cannot get cured and / or validated as the said municipality is subsequently included in the Corporation. The provisions contained under Section 626 of the Kolkata Municipal Corporation Act can be seen in this regard. ........ The said provision indicates that the moment any area is included within the periphery of the Kolkata Municipal Corporation Act, which was earlier within the limits of the municipality, the Municipal Act governing shall be admitted to be repealed and the provisions of the Acts, Rules and Regulations framed under the Kolkata Municipal Act, 1980 shall apply except the State Government by notification may otherwise direct. It is, therefore, apparent from the aforesaid provisions that the illegal acts under the repealed Act does not automatically get validated and / or receive legal sanction as the said Act stood repealed by virtue of the inclusion of the area within the territorial limits of the Kolkata Municipal Act, 1980. The Municipal Commissioner is required to consider those aspects, more particularly the notification issued and published by the State Government at the time of inclusion of the Jadavpur area within the territorial circumference of the Kolkata Municipal Corporation. Neither in the writ petition nor in the opposition those facts and the documents relating thereto have been disclosed to which this Court feels and it would not be proper to delve into it. In view of the above, the Municipal Commissioner is directed to consider the aforesaid representation in the light of the observance recorded herein above and shall decide the same after affording an opportunity of hearing to the petitioner and all the interested persons, by recording proper reasons within 4 weeks from the date of communication of this order.”[The emphasis is ours]”

2. The Municipal Commissioner, Kolkata Municipal Corporation (KMC), passed an order dated July 16, 2017, after hearing all concerned parties. He observed that the title of the writ petitioners in respect of the concerned land is doubtful. Of course, he also opined that KMC cannot decide the question of title to the plot of land in question. Finally, the Commissioner observed that “In total consideration of the fact and circumstances and having due regard to the solemn direction of the Hon’ble Court the undersigned feels that for all practical purposes and for all time to come for removal of difficulties, the petitioners are requested to approach the Competent Authority.”

3. Challenging the aforesaid order of the Municipal Commissioner, the petitioners herein approached another learned Judge of this Court by filing WP 23340(W) of 2017. The said writ petition was dismissed by the learned Judge by a judgment and order dated June 28, 2018. Assailing such order, the petitioners filed FMA/774/2019.

4. The said appeal was disposed of by us by the judgment and order dated July 17, 2023, violation of which is alleged in the present contempt application.

5. In effect, we had set aside the order of the Municipal Commissioner passed on July 16, 2017 and directed him to take a fresh decision in the matter in light of the observations of the learned Single Judge in the order dated June 6, 2017, in WP 25492(W) of 2016. In particular, we clarified that the Municipal Commissioner will consider the following three points :

(i) Whether or not the private respondents obtained sanctioned plan for the buildings they have set up on the land in question;

(ii) Whether or not permission of Kolkata Municipal Corporation under Section 428 of the KMC Act for running a private market was obtained by the private respondents;

(iii) Whether or not there is any notification of the State Government under Section 628 of the KMC Act excluding the applicability of the provisions of the KMC Act to the private market in question after the market came within the jurisdiction of KMC.”

6. It appears that a fresh order dated December 13, 2023 was passed by the then Municipal Commissioner. We see that the Commissioner has not decided any of the points indicated by us in our order. Instead, he has delegated to the Officers of different department the duty of deciding the questions that we had indicated. Prima facie, this is violation of our order on the part of the Municipal Commissioner.

7. Learned Counsel for the respondent/alleged contemnor says that the present Commissioner, who is also the Administrator of KMC, should be permitted to withdraw the order dated December 13, 2023 and pass an order after considering the matter afresh.

8. Learned Advocate for the petitioners has no objection to such course of action.

9. Hence, we do not delve into this contempt petition any further. Before holding the respondents guilty of contempt, we have to come to a finding that violation of our order was willful. In view of the submission made on behalf of the respondent, we do not deem it necessary to undertake that exercise.

10. Accordingly, we permit the present Commissioner/Administrator of KMC to withdraw the order dated December 13, 2023, passed by his predecessor in Office and pass a fresh order, in accordance with law and applicable Rules and Regulations in light of the order of the learned Single Judge dated June 6, 2017, passed in WP 25492(W) of 2016 and in light of the observations made in our order dated July 17, 2023. Such fresh decision will be taken after granting an opportunity of hearing to all concerned parties including the petitioners and the person responsible for the alleged unauthorized construction or their authorized representatives. The decision will be taken within a period of 12 weeks from the date of communication of this order by the learned Advocate for the petitioners to the Commissioner/Administrator of KMC. The decision so taken shall be communicated to the concerned parties within a week from the date of the decision.

11. The contempt application being CPAN/1057/2024 is disposed of accordingly.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)