Kolkata: The Calcutta High Court on Tuesday directed the Kolkata Municipal Corporation (KMC) to carry out demolition in respect of three rooftop restaurants if it feels there is a “grave emergency” to do so else it should first give a hearing opportunity to the petitioners in respect of the “unauthorised constructions”.
The bench of Justice Gaurang Kanth was moved by three of the rooftop restaurants who were served notices by the KMC under Section 401 of KMC Act, 1980, directing the petitioners to cease operations and demolish unauthorized structures at their premises, failing which coercive demolition under Section 400 (8) of KMC Act will be initiated.
The petitioners questioned the legality of the notice under Section 401, questioning if the KMC had the authority to issue such notice directing stoppage of commercial operations. They submitted that no hearing opportunity was given to them before issuance.
They also challenged the immediate action under Section 400 (8) which they argued was only for emergent situations. They stated that stopping operations will affect the livelihood of people engaged with the businesses. The petitioners submitted that they have all necessary permissions and licenses. The KMC’s counsel submitted that the rooftop restaurants in this case involved unauthorised constructions in violation of KMC Building Rules, 2009. Such constructions compromised critical fire exit routes, posing a severe threat to public safety. Section 401 empowers the Municipal Commissioner to issue stop-work notices for such constructions. Immediate action was necessary and hence measures under Section 400 (8) were justified if petitioners failed to comply. The court remanded the matter to the KMC for verification of the relevant documents, facts, and figures. Upon such re-verification, KMC shall arrive at a fresh decision as to whether the invocation of Section 400(8) is warranted.
“Only if KMC arrives at the conclusion based on both subjective and objective assessment that there exists a grave emergency and immediate demolition is imperative for safeguarding public safety, may the authority proceed with such demolition,” court said, adding that in the absence of any imminent threat to life or property, the petitioner shall be afforded an opportunity of hearing. Petitioners were restrained from carrying out any activities whatsoever at the disputed site. The impugned notice under Section 401 was kept in abeyance till final decision. The OC of Shakespeare Sarani Police Station and Bhowanipore PS were directed to maintain strict vigilance over the property to ensure that no activities are undertaken and that no third-party rights are created during the pendency of proceedings before the KMC.