BHAGWATDAS JAISWAL vs KOLKATA MUNICIPAL CORPORATION AND ORS
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON’BLE JUSTICE RAJA BASU CHOWDHURY
WPO/491/2025
IA NO: GA/1/2026
Bhagwatdas Jaiswal
Versus
Kolkata Municipal Corporation & Ors.
For the petitioner : Mr. Jaydeep Kar, Sr. Adv.
Mr. Biswajit Mukherjee, Adv.
Mr. Rishav Karnani, Adv.
Ms. Sonali Ghosh Basu, Adv
For the KMC : Mr. Alak Kumar Ghosh, Adv.
Mr. Gopal Chandra Das, Adv.
For the respondent : Mr. Arif Hussain, Adv.
Nos. 7 to 15. Mr. Sudarshan Roy, Adv.
Mr. D. Majumdar, Adv.
Mr. Niladri Mukherjee, Adv.
For the respondent : Mr. Biswaroop Bhattacharya, Adv.
Nos. 16 & 17. Mr. S. K. Poddar, Adv.
For the respondent : Mr. Soumya Majumdar, Sr. Adv.
Nos. 18 & 19. Mr. Shounak Mukhopadhyay, Adv.
Mr. Akash Ghosh, Adv.
Ms. Nabanita Chakraborty, Adv
Heard on : 18.05.2026, 19.05.2026, 20.05.2026 &
21.05.2026.
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Judgment on : 29 June, 2026 .
RAJA BASU CHOWDHURY, J. :
1. The present writ petition has been filed, inter alia , praying for a direction
upon the respondent authorities to declare the certificate of enlistment
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dated 7 April, 2025 granted to the respondent no.19 at 39, Bentinck
Street, Ground Floor, Kolkata 700069, as null and void and bad in law.
2. The petitioner claims to be a stall owner at 39, Bentinck Street,
Municipal Ward No. 46, P.S. Hare Street, Kolkata 700069 (hereinafter
referred to as the “said premises”). According to the petitioner, the said
premises was previously used as Paradise Cinema. The petitioner claims
that it used to run four (4) stalls, selling various kinds of food items at
the Paradise Cinema Hall. Presently, the petitioner runs a food stall
selling soft drinks and snack items at the entrance of the large format
garment departmental store/mall operated by the respondent no.18 and
19.
3. According to the petitioner, the respondent nos. 7 to 15 are the owner of
the said premises. Sometimes in the year 2012, the respondent nos. 7 to
15 had let out their respective portions in the said premises to the
respondent nos. 16 and 17. The respondent no.18 had taken the said
premises for the purpose of running the cinema hall and distribution,
exhibition and exploitation of feature films at the said premises and
started managing and running the Paradise Cinema Hall from the said
premises. The respondent no.19 is the sister concern of respondent
no.18, while the respondent no.20 is a developer holding registered
agreements for the said premises from the respondent nos. 7 to 15.
4. According to the petitioner, the cinema hall was shut down sometime in
2020 and the cinema licence thereof was also surrendered. Thereafter,
the petitioner came to learn that the respondent nos. 7 to 19 have
illegally changed the nature and character of the premises by converting
the cinema hall (Assembly category) situated at the premises, into a
large format garment departmental store run under the name and style
of ‘M-Bazar’. The petitioner therefore, claims that the category of the
premises from an assembly hall has been converted to that of a
‘Mercantile building’.
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5. This apart, the petitioner also contends that the respondent nos. 16 to
19 have undertaken a series of unauthorised structural modifications
and that the change of use is illegal, in violation of statutory norms.
6. According to the petitioner, the respondent nos. 16 to 19 have thus,
illegally converted the sanctioned use of the premises from a cinema hall
(Assembly category) to a large format garment departmental store
‘Mercantile building’ without obtaining the requisite change of
occupancy certificate as is required under Section 416 of the Kolkata
Municipal Corporation Act, 1980 (hereinafter referred to as the “said
Act”). The change of use is patently illegal and invites huge risk to the
inmates of the said building.
7. Being aggrieved and dissatisfied with the arbitrary acts and actions on
the part of the respondents including that of the private respondents,
the petitioner had filed a writ petition, which was registered as WPO 414
of 2024 before the Hon’ble High Court at Calcutta.
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8. Records would reveal that by an order dated 22 May, 2024 a
Coordinate Bench of this Court was pleased to dispose of the said writ
petition by directing the Commissioner of the Kolkata Municipal
Corporation or its delegate to grant an opportunity of hearing to all
necessary parties and ascertain whether the business run by the
petitioner is in accordance with law or not. It was further provided that
if, the concerned party fails to produce the requisite documents for
running the business from the subject premises, then steps shall be
taken by the official respondent to stop the business forthwith.
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9. In terms of the order dated 22 May, 2024, the Additional Municipal
Commissioner, Kolkata Municipal Corporation conducted a hearing on
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14 June, 2024 and on 4 July, 2024, with respect to the grant of trade
licence/certificate of enlistment, and the Special Officer Building also
initiated a demolition case being D/Case No. 08-D/VI/24-25.
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10. On 18 July, 2024, the Additional Municipal Commissioner,
Kolkata Municipal Corporation passed an order disposing of the
proceeding with respect to the certificate of enlistment/trade licence by
granting an opportunity to re-upload certain documents for certificate of
enlistment. According to the petitioner, despite the respondent nos. 18
and 19 did not have requisite statutory sanction and permission for
running the said business from the said premises and despite the above
proceeding, the municipal authorities did not stop the business
operations of the respondent nos. 18 and 19. As such the petitioner was
constrained to move the Hon’ble Court in contempt jurisdiction, which
was registered as CC. 78 of 2024. Records would reveal that the
Municipal Commissioner in the contempt proceeding had filed an
affidavit of compliance, disclosing that the Special Officer (Building) by
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order dated 4 December, 2024 had rejected/disallowed the change of
use and/or occupancy of the subject premises. Consequently, Kolkata
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Municipal Corporation cancelled the certificate of enlistment on 20
November, 2023, which had been issued in favour of the respondent
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no.19. The order passed by the Special Officer (Building) dated 4
December, 2024 was subsequently affirmed by the Mayor in Council on
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13 December, 2024.
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11. Challenging the order dated 4 December, 2024, the respondent
nos. 18 and 19 filed a writ petition being WPO 1234 of 2024. Though,
the petitioner was not made a party, on the basis of an application for
addition of party, the Court had allowed the petitioner to be added as a
party in such proceedings. On contest, the writ petition being WPO 1234
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of 2024 was disposed of by an order dated 1 May, 2025 by granting
opportunity to the aggrieved party to avail the appellate remedy provided
under Section 415 of the Kolkata Municipal Corporation Act, 1980,
before the Municipal Building Tribunal. The respondent nos. 18 and 19
have since thereafter, filed an appeal before the Municipal Building
Tribunal, which is pending.
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12. In the interregnum, however, the petitioner claims to have been
shocked and surprised to find out that despite the clear finding and the
cancellation of the previous certificate of enlistment as also the
pendency of WPO 1234 of 2024, a fresh certificate of enlistment dated
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7 April, 2025 (commencement dated 2 April, 2025) had been issued
to the same entity for the said premises. Being aggrieved by such
issuance of the certificate of enlistment, the petitioner has filed the
instant writ petition, seeking cancellation thereof.
13. When the writ petition was initially moved though, the petitioner
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had sought for an interim order, however, this Court by order dated 6
November, 2025 noting that challenging a Fire Safety Certificate (in
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short “FSC) dated 11 April, 2025 issued by the Director, Fire
Prevention Wing, West Bengal Fire and Emergency Services, a writ
petition had been filed, which was registered as WPO 284 of 2025 and in
such proceedings a Coordinate Bench of this Court had directed the said
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premises shall not be used for commercial purpose till 19 May, 2025
and on an appeal being filed therefrom, the Division Bench of this
Hon’ble Court taking note of the peculiar facts and balance of
convenience having not restrained the respondent no.18 from carrying
out any business operations, and also noting that though a challenge to
the same was pending before the Hon’ble supreme Court, did not grant
any interim relief and directed the matter to be listed after disposal of
the Special Leave Petition.
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14. Records would reveal that challenging the order dated 6
November, 2025 an appeal was preferred before the Division Bench. By
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an order dated 6 January, 2026, the Division Bench of this Court was
of the view that pendency of this Special Leave Petition should not stand
in the way of consideration of interim relief in the writ petition and
accordingly, directed this Court to take an independent decision in the
matter. Following the above, the matter was taken up for consideration.
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Initially on 15 January, 2026, however, since an accommodation was
sought for on that date by the respondent nos. 18 and 19 the matter
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was adjourned and was taken up for consideration on 22 January,
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2026. On 22 January, 2026 this Court upon hearing the parties and
noting that a certificate of enlistment in the name of the respondent
no.19 was subsisting, was of the view that it shall not be appropriate to
pass any interim order at this stage, so as to stall the business
operation of the respondent no.19, accordingly, directed exchange of
affidavits.
15. Records would also reveal that being aggrieved with the non-grant
of interim order, the petitioner had preferred an appeal therefrom, which
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was registered as APO 6 of 2026. By an order dated 16 February, 2026,
the Division Bench of this Hon’ble Court despite noting that the
livelihood of some persons may be affected, felt that compliance of
provisions of the statute is paramount and mandatory as pre-condition
for running a garment shop, and in the backdrop of an order passed by
the Special Officer (Building), confirmed by the Mayor-in-Council
disallowing change of use of the building noted that the same is ex facie
illegal and cannot be permitted. Having regard thereto, the Division
Bench of this Court was of the view that the garment shop at the said
premises cannot be allowed to run and should be shut down by the
Kolkata Municipal Corporation forthwith and accordingly directed that
the respondent M/s. Metro Retail shall not run the garment shop and it
must be shut down. However, the above order of the Division Bench also
makes it clear that the aforesaid order was only interim, and the same
shall abide by the final result in the writ petition, when the parties shall
be at liberty to canvass all arguments available to them in law, including
maintainability of the writ petition and accordingly, requested the Court
to take up the matter already fixed after affidavits and hear out and
dispose of the writ petition without granting any unnecessary
adjournments.
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16. Since then the matter was mentioned for expeditious hearing and
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was listed on 12 March, 2026, incidentally on the said date, since the
petitioner sought for time to use a response to the application being GA
1 of 2026 filed by the respondents, the matter was adjourned.
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Subsequently, though the matter was fixed on 2 April, 2026 by
consent of the parties, the matter was adjourned on the said date, and
ultimately thereafter the matter could be finally heard out.
17. Mr. Kar, learned senior advocate appearing in support of the writ
petition, has submitted that in the instant case, since, the Special
Officer (Building) has already refused the permission to grant
conversion, the petitioner cannot be permitted to obtain a certificate of
enlistment for running the business. According to him, the present
petition is not limited to a challenge to a mere certificate of enlistment
but is a challenge to a patent and continuous illegality committed by the
respondent nos. 18 and 19. He submits that the respondent nos. 18 and
19 have illegally procured the certificate of enlistment and commenced
mercantile operations i.e. a garment departmental store. The same is in
direct defiance of the order of rejection of the change of use and binding
statutory directions. According to him, the Division Bench had to
intervene to bring the business operations to a halt. He has also
reiterated that the previous licence had been cancelled on the very same
ground and the appeal against the order of rejection remains pending
before the Municipal Building Tribunal. On the status of the petitioner,
it is submitted that the petitioner runs a popcorn, snacks and soft
drinks stall of 80 sq. ft. immediately inside the entrance of the cinema
hall at 39, Bentinck Street where the large format garment departmental
store/mall operated by the respondent nos. 18 and 19 is situated. On
the locus of the writ petitioner, it is submitted that the petitioner had
been impleaded by respondent nos. 18 and 19 in the appeal before the
Municipal Building Tribunal wherein he has been arrayed as a
respondent. He further submitted that this Court has already
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adjudicated the petitioner’s locus when his addition was allowed by the
Coordinate Bench in GA 2 of 2025 arising out of WPO 1234 of 2024. It is
still further submitted that in cases involving unauthorised
construction, illegal change of use or continuing violation of municipal
and planning laws, the issue assumes the character of a public wrong.
Accordingly, any public spirited citizen, taxpayer, neighbour, outsider or
even a stranger has sufficient locus to invoke jurisdiction to compel
municipal authorities to discharge their statutory obligations and
prevent continuing illegality. The rationale consistently adopted by the
Courts is that unauthorised constructions and illegal use affects
planned development, civic amenities and public safety. In support of
his aforesaid contentions, he has placed reliance on the following
judgments:
i. Sri K. Ramadas Shenoy v. The Chief Officers, Town
Municipal Council, Udipi & Ors., reported in (1974) 2 SCC 506 ,
ii. Dipak Kumar Mukherjee v. Kolkata Municipal Corporation &
Ors. , reported in (2013) 5 SCC 336 ,
iii. Smt. Banasri Mondal v. State of West Bengal & Ors. , in WPA
740 of 2021, (2021:CHC-AS:5407) .
iv. Jamila Khatoon & Ors. v. State of West Bengal & Ors. ,
reported in 2022 SCC OnLine Cal 2478 ,
v. Shadab Jahan Begum & Ors. v. The Kolkata Municipal
Corporation & Ors. , in WPA 13617 of 2021, (2022: CHC-
AS:7032) and
vi. Shri Biplab Das v. Tamralipta Municipality & Ors. , in WPA
11359 of 2021 .
vii. Lutfor Rahaman Sarkar & Ors. v. The State of West Bengal
& Ors. in WPA 29596 of 2025 .
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18. Mr. Kar has also invited the attention of this Court to the
provisions of Section 199 of the said Act and the guidelines issued
thereunder. According to him, Section 199 does not merely permit the
State Government to frame guidelines. It expressly incorporates those
guidelines into the statutory scheme. The application for a certificate of
enlistment must be made as per the guidelines posted on the municipal
corporation’s web portal. Section 199 of the said Act mandates in no
uncertain terms that the application shall be accompanied by the
prescribed fee “and also” by the documents determined and specified by
the State Government in the guidelines. It makes compliance with the
guidelines a statutory pre-condition for a valid application, not a mere
administrative convenience. He has also contended that the guidelines
once issued under Section 199, cease to be a free-standing executive
instructions and they become part of the statutory fabric of Section 199
itself. Non-compliance with the guidelines is in effect, non-compliance
with the statutory provision. In this context, he has placed reliance on
Clause 4 of the guidelines which mandates that every online application
for a certificate of enlistment must be accompanied by a system-based
integrated application cum self-declaration containing all particulars of
Annexure I and Annexure II.
19. According to him, Annexure II is not a mere formality, it requires
from the applicant a positive unequivocal affirmation, declaration and
undertaking that : (a) the premises for which the Trade Licence is sought
is fully compliant with all KMC laws and regulations; (b) The use of the
premises is neither illegal nor unauthorised; and (c) In the event any
information furnished is found to be false, the Certificate of Enlistment
shall be liable to cancellation together with such other penal
consequences as may follow.
20. Regulation 8(1)(d) of the Guidelines independently and expressly
empowered the municipal corporation to cancel any Certificate of
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Enlistment that was obtained by means of a false self-declaration. This
is not a discretionary power. It is a mandatory consequence that flows
from the very undertaking extracted from every applicant as a condition
of grant. According to him, the respondent nos. 18 and 19 were aware
that no change of use had been granted and that a prior enlistment for
the same use had already been cancelled. Notwithstanding the above, by
making false declarations they have obtained the permissions i.e.
certificate of enlistment, and thereby played fraud upon Kolkata
Municipal Corporation and upon this Court. Upon discovering this
fraud, the Kolkata Municipal Corporation cancelled the trade licence.
There is no irregularity in the same. It is still further submitted that the
cancellation already affected by the Municipal Corporation cannot be
undone. No formal application has been filed by the respondent nos. 18
and 19 to challenge the cancellation. This Court in the facts, should not
entertain such challenge by way of supplementary affidavit. As such, no
interference is called for.
21. The respondent nos. 18 and 19 have contested the matter by filing
affidavit-in-opposition. Mr. Majumdar, learned senior advocate
representing the respondent nos. 18 and 19, at the very outset, has
raised the issue of maintainability and the locus of the writ petitioner to
maintain the writ petition. According to him, the respondent no.20 is a
developer who is supporting the petitioner and is the person behind the
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petitioner. He submits that the order dated 4 December, 2024 was
passed pursuant to a writ petition instituted by one Shiv Shankar
Dubey. The said writ petition being WPO 284 of 2024 mainly related to
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Fire Safety Licence dated 11 April, 2025 issued by the Director, Fire
Prevention Wing, West Bengal Fire Emergency Service. While hearing
out a challenge to the said order, the Coordinate Bench of this Court
had directed that the subject premises shall not be used for any
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commercial purpose till 19 May, 2025 or until further order whichever
is earlier. Challenging such order, an appeal was preferred which was
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registered as APOT 136 of 2025 arising out of WPO 284 of 2025. The
Division Bench of this Court while hearing the above appeal at that
stage felt that the appellant ought not to have been restrained from
operating its business in the said premises before arriving at a finding
that the Fire Safety Certificate as issued, is not maintained in
accordance with law. Accordingly, the interim order passed by the
Coordinate Bench was vacated. He has also drawn the attention of this
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Court to the order dated 18 July, 2024 issued by the Municipal
Commissioner and would submit that the Municipal Commissioner had
only directed uploading of additional documents which was duly
complied with. The certificate of enlistment according to him, was
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cancelled on 16 December, 2024 but the same was again reissued on
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7 April, 2025, after making an online application. This, according to
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him, was applied for at a time when the interim order dated 15
February, 2025 passed by this Hon’ble Court in connection with WPO
1234 of 2024 was subsisting. He submits that having regard to the
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interim order passed in WPO 1234 of 2024 on 7 April, 2025, the
petitioner applied for a fresh certificate of enlistment. There is no
irregularity in that regard. According to him, the challenge to the
rejection of change of use of occupancy is pending before the Tribunal
and as such the same cannot interfere with the right of the petitioner to
be entitled to the certificate of enlistment. According to him, the two
issues as regards the change of occupancy and certificate of enlistment
are mutually exclusive. By referring to the guidelines for enlistment of
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profession, Trade and Calling dated 28 August, 2020, he submits that
the same does not require any change of occupancy certificate. Change
of occupancy certificate is not a certificate or licence or a document that
is required for issuance of certificate of enlistment. The lack of relevance
of such a document was admitted by the advocate for the Kolkata
Municipal Corporation in course of hearing before the Hon’ble Division
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Bench on 19 May, 2026, in connection with the appeal filed by the
respondent nos. 18 and 19. By placing reliance on the provisions of
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Section 390 of the said Act, he submits that Section 390 of the said Act
refers to simultaneous use of premises for more than one purposes
which will be clearly seen from the words “are used” in the definition
clause under Section 390 of the said Act. Admittedly, the Cinema Hall
has been closed since 2020. Since then, the respondent nos. 18 and 19
had been carrying out business upon obtaining the certificate of
enlistment issued in its favour. In this context, he has also placed
reliance on Schedule V and VA. According to him ‘Mercantile building’
does not fall within the category of premises under Schedule V which
mandatorily requires permission to operate and cannot be operated
without any permission. He submits that a Mercantile building which
has been defined in Section 390(2)(f) of the said Act, for carrying out
operation in such building, no specific permission in terms of Schedule
V is required, and hence also supports the respondent nos. 18 and 19 in
the case. This apart, it is submitted that though the Hon’ble Division
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Bench of this Court did not by its order dated 16 February, 2026 direct
the municipality to cancel the certificate of enlistment, though the same
has been cancelled citing the order of the Division Bench.
22. Having heard the learned advocates appearing for the respective
parties and having considered the materials on record, the primary
question that falls for consideration in the present case, apart from the
maintainability issue and the locus of the petitioner, is whether the
respondent nos. 17 and 18 have any right to carry on business from a
building which is admitted by the parties to be a ‘Mercantile building’
from where (previously, Paradise Cinema Hall) Cinematograph Films
were being shown and exhibited.
23. The ancillary question that also falls for consideration in the
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present application is whether having regard to the order dated 4
December, 2024 passed by the Special Officer (Building), which dealt
with proceedings under Section 400 and under Section 416(5) of the
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said Act, whereunder change of use was disallowed, could the
respondent nos. 18 and 19 carry on business contrary to such order
and lastly, whether the right to seek issuance of certificate of enlistment
is dependent upon allowing change of use of a building.
24. Since the above issues are interlinked, they are taken up together
for consideration. To appreciate the above, it is necessary to understand
the scope of the relevant provisions for grant of certificate of enlistment
and change of use of a building. I find that Section 199 of the said Act
authorises the Municipal Commissioner or any official authorised by
him to issue a certificate of enlistment. In this context, it may be noted
that Section 199 of the said Act makes it obligatory for every person
engaged or intending to be engaged in any profession, trade or calling, in
Kolkata as categorized in Schedule IV of the said Act, either by himself
or by any authorised agent or representative, to obtain a certificate of
enlistment for such period and on payment of such fees, as may be
determined by the Corporation and as may be specified in the form of
guidelines issued by the State Government. The same also provides that
the certificate of enlistment must be renewed, on or before the expiry of
the validity period thereof, from the Municipal Commissioner or, in his
absence, from the concerned official authorised by the Municipal
Commissioner upon presentation of an application together with such
application fees, at such rates or, as may be determined by the
Corporation under sub-section (3) of Section 131 and also documents as
may be determined and specified by the State Government in the
Guidelines that may be hosted in the web portal. Sub-section (2)
provides that the Municipal Commissioner or an official authorised by
him, shall, on receipt of an application under sub-section (1), grant such
certificate of enlistment, if such application is in order and upon
payment of fees under sub-section (3) of Section 131 of the said Act or
shall reject the application, if it is not in order. Guidelines for enlistment
of profession, trade and calling in Kolkata Municipal Corporation areas
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has since been notified by superseding the previous guidelines on 28
August, 2020. The documents required for submission of application for
the certificate of enlistment have been identified in Clause (4) thereof. To
morefully appreciate the same, the relevant clause along with the note
appended thereto is enclosed herewith:
25. The provision for registered companies, restriction of issue
of certificate of enlistment and the issue of new certificate and the
modalities for renewal thereof, including its validity have been
detailed in Clauses 5, 6, 7, 8, 9 and 10. To morefully appreciate
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the same, the relevant clauses are extracted hereinbelow:-
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26. As would appear from the above, the same also requires a self-
declaration to be submitted containing all particulars of Annexure I and
Annexure II. Although, a lot of stress has been placed by Mr. Kar, to,
inter alia , contend that an application for grant of certificate of
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enlistment mandatorily requires authorisation for change of use, I have
not been able to identify any such requirement from the relevant section
and the guidelines.
27. Insofar as the regulation of building uses is concerned, the same
finds place in Chapter XXXIII of the said Act. Section 416 of the said Act
prohibits the change of use of building without permission. The same
provides that no person shall, without any written permission of the
Municipal Commissioner or otherwise than in conformity with the
conditions, if any, or such permission use or permit to be used for the
purpose of human habitation any part of a building not originally
erected or authorised to be used for such purpose; change or allow the
change of the use of any building for any purpose other than that
specified in the sanction under Section 396; change or allow the change
of the use of any building erected before the commencement of this Act
contrary to the use for which such erection was originally sanctioned;
convert or allow the conversion of a tenement under a particular
occupancy or use group to a tenement under another occupancy group
or use group provided no such permission shall be given if the new
occupancy or use group is otherwise than in conformity with the
provisions of this Act or the rules and the regulations made thereunder
or of any other law in force for the time being. To morefully appreciate
the same, the relevant section is extracted hereinbelow:-
“ 416. Prohibition on change of use of building.— (1) No
person shall, without any written permission of the Municipal
Commissioner or otherwise than in conformity with the conditions, if
any, or such permission,—
(a) use or permit to be used for the purpose of human habitation any part
of a building not originally erected or authorised to be used for such
purpose;
(b) change or allow the change or the use of any building for any purpose
other than that specified in the sanction under section 396;
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(c) change or allow the change or the use of any building eroded before the
commencement or this Act contrary to the use for which such erection
was originally sanctioned;
(d) convert or allow the conversion of a tenement under a particular
occupancy or use group to a tenement under another occupancy or use
group:
Provided that no such permission shall be given if the new
occupancy or use group is otherwise than in conformity with the
provisions of this Act or the rates and the regulations made thereunder
or of any other law in force for the time being.
(2) If, in any case, such permission is given, no change of occupancy
or use group shall be allowed before any necessary alterations or
provisions have been made to the satisfaction or the Municipal
Commissioner and in accordance with the provisions of this Act or the
rates and the regulations made thereunder or of any other law in force
for the time being.
(3) Any change of use made before the commencement of this Act,
except in so far as such use is permitted under [section 385] of
the [Kolkata] Municipal Act, 1951 (West Ben. Act XXXIII of 1951), shall
be deemed to be an unauthorised change and shall be death with
under the provisions or this Act.
(4) Notwithstanding any other action that may be taken against any
person, whether owner or occupier or both, contravening any provision
of this section, the Municipal Commissioner may levy on such person in
accordance with such scale as may be [determined by regulations] a
fine not exceeding in each case rupees one hundred per square metre
per month for the area under unauthorized use throughout the period
during which such contravention continues.
(5) The Municipal Commissioner may, if he deems fit, order that the
unauthorized use be slopped forthwith:
Provided that before making any such order, the Municipal
Commissioner shall give a reasonable opportunity to the person
affected to show cause why such order should not be made.
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(6) Any person aggrieved by an order or the Municipal Commissioner
under sub-section (5) may, within thirty days, from the date of the
order, prefer an appeal against the order to the Municipal Building
Tribunal appointed under section 415.
(7) Where an appeal is preferred under sub-section (6), the Municipal
Building Tribunal may slay the enforcement of the order on such terms,
if any, and for such period as it may think fit:
Provided that the fine levied under sub-section (4) shall not be
waived.
(8) Save as otherwise provided in this section, no court shall
entertain any suit, application or other proceeding for injunction or other
relief against the Municipal Commissioner to restrain him from inking
any action or making any order in pursuance of the provisions or this
section.
(9) Every order made by the Municipal Building Tribunal on appeal
and subject to such order, the order or the Municipal Commissioner
under sub-section (5) shall be final and conclusive.
(10) Where no appeal has been preferred against an order made
under sub-section (5) or where an order under that sub-section has
been confirmed oil appeal, whether with or without modification, the
person against whom such order has been made shall comply with the
same within the period specified therein, or, as the case may be, within
the period, if any, fixed by the Municipal Building Tribunal on appeal,
and on the failure of such person to comply with such order within such
period, the Municipal Commissioner may require any police officer or
any employee of the Corporation to seal up such area after evicting all
persons therefrom to prevent its further unauthorized use. ”
28. In this context, it may be necessary to note that the Special Officer
(Building) while dealing with the above issue has made the following
observations.
“ Whereas as per section 416(1)(d) of the K.M.C. Act, 1980 implements
that No person shall without any written permission of the Municipal
Commissioner or otherwise than in conformity with the conditions, if
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any, of such permission convert or allow the conversion of a tenement
under a particular occupancy or use group to a tenement under another
occupancy or use group.
For such change as per section 416(2) of the K.M.C. Act, 1980 unless
necessary alterations have been made to the satisfaction of the
Municipal Commissioner and in accordance with the provisions of this
Act or the rules and the regulations made thereunder or of any other
law in force for the time being. For which it may be noted that already
notice under section 416(5) of the said Act has been issued in respect of
the said premises by the Building Department.
That as per prevailing system of K.M.C change of use of any nature of a
building if done by any person/occupier/owner to apply before the
Building Department with relevant documents for such change of use
along with appropriate plan of such change with other statutory
certificate for permissible for such changes. Thereafter, Building
Department will examine and inspect the site with all documents and
will give their appropriate decision of such change of use.
In this respect the application made by the applicant for change of use
on the ground floor of the premises on 12.04.2024 for conversion
Cinema Hall into Garment Shop for running livelihood of the employees.
Prior to that application, concerned Executive Engineer already issue
notice under section 416(5) of the K.M.C. Act, 1980 on 04.04.2024
which indicates stop forthwith of such unauthorized use of such
change.
That while going through the documents in respect of the sub-lease
deed dated 10.11.2023 and main lease deed dated 11.10.2012 it
indicates that the said premises only use for Cinema business and
other allied purposes by the lessee and also by his associate and
subsidiary companies wherein the Lessee is directly involved. Wherein
sub-lease deed dated 10.11.2023 indicates that the said demised
premises only use for distribution, exhibition and exploitation of feature
films and for cinema business and other allied business as permitted
under the Head Leases after procuring necessary permissions.
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Hence from the above, it can be observed that the Hon’ble High Court
Division Bench, wherein allowing the P.R. for carrying out their
business at the said premises. Simultaneously, documents submitted
by the parties which reflects that there is a violation or misuse of the
said premises in respect of running of the business as granted by the
Lessor/Owner in the main Lease Deed dated 11.10.2012.
In view of above observation, it can be concluded that change of use as
done by the P/R without appropriate permission from the KMC
authority tantamounts to violation followed by the usage of the said
permission as mentioned in the lease deeds dated 11/10/2012 and
10/11/2023 as stated above, for which said change of use is
disallowed. ”
29. Challenge to the aforesaid order is now pending before the
Tribunal. The question that arises for consideration is whether non-
grant of a change of use, which is otherwise not impermissible in terms
of the provisions of this Act and when a challenge thereto is pending
before the Tribunal, can the grant of certificate of enlistment by the
municipality be construed to be bad and whether the petitioner can have
any right to seek cancellation of such certificate of enlistment.
30. In this context, it may be relevant to note that the Coordinate
Bench of this Court in the case of In re: Venode Kumar Jalan v.
Calcutta Municipal Corporation & Ors. , reported in 1987 SCC OnLine
Cal 158 and the Division Bench of this Court in the case of The
Chairman, Khardah Municipality & Anr. v. M/s. Annapurna Bakery &
Anr. , reported in 1996 SCC OnLine Cal 186 , was of the view that though
under the pre-amended provision an enquiry was required to be made by
the Municipal Commissioner, such enquiry did not authorise the
Commissioner to embark upon an enquiry into the title. The same view has
been reiterated in the case of Raghunathpur Municipality & Ors. v.
Sabita Chowdhury & Anr. , reported in 2019 SCC Online Cal 5947 .
Another Coordinate Bench of this Court in the case of Subir Bhowmick v.
The State of West Bengal & Ors. , reported in 2018 SCC OnLine Cal
7639 , after considering the scope of enquiry as contemplated under the
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provisions of both the Kolkata Municipal Corporation Act, 1980 including
its amended provisions and the West Bengal Municipal Act 1993, and
diverse authorities including the case of Indu Bhushan Bhattacharya v.
Swaroop Kumar Shah delivered by the Division Bench of this Court
th
rendered in AST 216 of 2012 dated 4 October, 2012, had noted that the
municipality should limit this enquiry with regard to the requirement of the
provisions and nothing else, and despite a provision having being made
under the prescribed form for production of landlord consent, the
municipal authorities cannot refuse to grant certificate of enlistment to the
petitioner who intends to be engaged in a trade within the municipal area
for non-production of such landlord’s consent letter. In other words, the
Court directed the enquiry to be confined strictly to the provisions of the
specific section of statute.
31. In my view, the grant of certificate of enlistment does not stand on
the same footing as of an unauthorised construction, nor can the same
be considered to be a social evil, for any individual to object of such
grant. It is well-settled that a writ of mandamus can be granted only in a
case where there is a statutory duty imposed upon the authority/officer
concerned and there is a failure on the part of that authority/officer to
discharge the statutory obligation. The chief function of the writ is to
compel performance of public duties prescribed by statute and to keep
subordinate tribunal and officers exercising public functions within the
limits of their jurisdiction. Reliance in this regard is placed on the
judgment delivered by the Hon’ble Supreme Court in the case of Union
of India & Ors. v. C. Krishna Reddy, reported in (2003) 12 SCC 627 .
Therefore, for this Court to exercise jurisdiction and issue a writ of
mandamus to compel the authorities to do certain acts, the petitioner
must be able to demonstrate that there is a statute which imposes a
legal duty/obligation and the aggrieved party has a legal right under the
statute to enforce its performance. Admittedly, in the present case, I find
that originally, the business carried on from the said premises was
exhibition of Cinematograph films which in terms of Schedule V read
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with Section 435 specifically required a municipal licence to use the
same. In this context, I may note that Chapter XXV of the said Act,
which engrafts Section 435 provides that a premises is not to be used
for non-residential purpose without licence. As such, the building in
question which was running a cinema hall was run for non-residential
purpose with the sanction of the municipal authority in the form of a
licence, and was not a prohibited business within the meaning of the
schedule. To morefully appreciate the same, Section 435 is extracted
hereinbelow: -
“ 435. Premises not to be used for non-residential purpose
without municipal license .—(1) Except as hereinafter provided in
this Act, no person shall use or permit to be used any premises for any
of the non-residential purposes mentioned in schedule V without or
otherwise than in conformity with the terms of a municipal licence
granted by the Municipal Commissioner so as not to contravene the
provisions of sub-section (2):
Provided that no such municipal licence shall be given in respect of
any non-residential use of a premises which is otherwise than in
conformity with the provisions of this Act or any other law far the time
being in force or the rates or the regulations or orders made thereunder.
(2) In case of a non-residential use of a premises for a purpose for
which a licence or permission is required from Government or any
statutory body under any law for the time being in force, no municipal
licence under this section shall be given until the licence or permission
under the said law has been produced before the Municipal
Commissioner, and duly authenticated copies thereof are submitted to
him:
Provided that in the case where production of a municipal licence is
a precondition for the gram ora licence under any other law for the time
being in force, the Municipal Commissioner may grant a provisional
municipal licence which shall become final only upon production of a
licence or permission under the said law;
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Provided further that such provisional municipal licence shall have
validity only for the purpose of fulfilling the preconditions of the licence
under any other law as aforesaid.
(3) In specifying the terms of a licence granted under this section,
the Municipal Commissioner may require the licencee to take all or any
of such measures as he may deem fit to guard against danger to the,
health or properly or for the abatement of nuisance of any kind.
(4) The Corporation shall by regulation determine the fees to be paid
in respect of a municipal licence to be granted under sub-section (1),
and may specify different fees for different categories of non-residential
uses in different areas of [Kolkala]:
Provided that no such fees shall exceed rupees two thousand and
five hundred in any case.
(5) The Corporation may by regulation determine the following:—
(a) when the initial licence is to be taken out and the procedure of
annual renewal thereof;
(b) mailers connected with the display of licence, inspection of
premises, powers of inspectors, and such other mailers.
(6) The Municipal Commissioner shall maintain two separate
registers in such form and in such manner as may be prescribed so
that in respect of each municipal licence granted under this section,—
(a) one register shall contain ‘premises wise’ information on the
non-residential uses, and
(b) one register shall contain such information, on basis of
different ‘non-residential user groups’, for factories,
warehouses, medical institutions, educational institutions and
others as may be prescribed. ”
32. It is an admitted position that the cinema hall has since closed
down long back and the building in question as admitted by the parties
is now a ‘Mercantile building’ within the meaning of Section 390(2)(f) of
the said Act. It is not the case of the parties that the building is a
residential building. The petitioner in fact has made a statement that he
carries on commercial business from the small stall at the entrance of
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the aforesaid Mercantile building. It is not the case of the petitioner that
it has stopped carrying on commercial business from the said
‘mercantile building’. Though, Mr. Kar, has attempted to contend by
placing reliance on the order passed by the Coordinate Bench in GA 2 of
2025, that the petitioner’s locus to object to the grant of certificate of
enlistment and change of use had already been decided in favour of the
petitioner, in my view, the aforesaid question was neither argued nor
th
dealt with by the Coordinate Bench. A perusal of the order dated 15
January, 2025 passed in WPO 1234 of 2024 would reveal that the
petitioner was the complainant and at the instance of the petitioner
complaining of unauthorised construction and/or wrongful use of
Paradise Cinema Hall that the writ petition was disposed of by the order
nd
dated 22 May, 2024, directing the Commissioner, Kolkata Municipal
Corporation or its delegate to decide on the issue of running the
th
business from the said premises, which resulted in the order dated 4
th
December 2024. Since, the order dated 4 December, 2024 formed
subject matter of challenge in WPO 1234 of 2024, the application for
addition being GA 2 of 2025 was allowed. To morefully appreciate the
th
same, the aforesaid order dated 15 January, 2025 passed in GA 2 of
2025 filed in connection with WPO 1234 of 2024 is extracted
hereinbelow: -
“ The Court: It appears that the order impugned in this writ petition
was based on a complaint filed by the applicant.
In that view of the matter, GA/2/2025 for addition of party is
allowed.
The petitioner will be at liberty to correct the cause-title.
Accordingly, let a copy of the amended writ petition be served upon
the applicant within a period of one week from date.
List this matter after one week under the same heading.
Interim order granted earlier is extended for a further period of one
month.
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The Corporation is restrained from taking any coercive steps
against the petitioner for a period of one month. ”
33. The said order does not deal with the issues raised herein or the
locus of the petitioner to object to the grant of certificate of enlistment.
Such issue was not raised before this Court either in WPO 414 of 2024
or in WPO 1234 of 2024. Simply because, the respondent nos. 18 and
19 as appellants before the Building Tribunal, while maintaining a
th
challenge to the order dated 4 December, 2024 has arrayed the
petitioner as a party respondent, the same cannot authorise the
petitioner to object to the grant of the certificate of enlistment. This
apart, certificate of enlistment, in my view, is only the first step for
running a business operation, which is otherwise not prohibited by law.
Admittedly, the business operation, which the respondent nos. 18 and
19 were running are not prohibited business. Further, for the petitioner
to object to the grant of certificate of enlistment, the petitioner must be
in a position to demonstrate that the petitioner had a right to object and
was otherwise entitled to notice in connection with grant of certificate of
enlistment by the municipal authorities. Having regard to the provisions
contained under Section 199 of the said Act, and the guidelines framed
thereunder, this Court did not find any scope or opportunity available to
the petitioner to object to the grant of certificate of enlistment. Since the
statute does not provide for any opportunity to the petitioner to be
entitled to a notice to object to the grant of certificate of enlistment, in
my view, the petitioner does not have the legal right to challenge the
grant. In this regard, I must note that Mr. Kar, learned advocate for the
petitioner to sustain the petition had submitted that the petition was not
limited to a mere challenge to the certificate of enlistment but is a
challenge to the patent and continuous illegality committed by the
respondents in illegally obtaining the certificate of enlistment.
Unfortunately, having regard to the observation made hereinabove, I am
afraid unless the petitioner can establish that he has a right to object to
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the grant of certificate of enlistment, he cannot complain of any wrong
being committed against him in the petitioner obtaining the certificate.
The judgments relied on by Mr. Kar deal with illegal construction which
stands on a different footing than a grant of certificate of enlistment. The
judgment delivered in the case of Sri K. Ramadas Shenoy (supra),
Dipak Kumar Mukherjee (supra), Smt. Banasri Mondal (supra),
Jamila Khatoon & Ors. (supra), Shadab Jahan Begum & Ors.
(supra) deal with the issue of illegal construction, and as noted above
the same stands on a different footing, and as such are distinguishable
on facts. The judgment delivered in the case of Lutfor Rahaman
Sarkar & Ors. (supra) deals with the issue of carrying out a business of
boarding house in a residential premises. In such case as well, the Court
did not direct cancellation of the certificate of enlistment. Such case also
dealt with illegal construction. As such the above judgments do not
assist the petitioner.
34. Thus, the petitioner having not been able to demonstrate what
legal right of the petitioner has been infringed, the present petition at
the instance of the petitioner who is also carrying on commercial
business from the mercantile building, is not maintainable. I may
however, add that though, a grant of certificate of enlistment may not
authorise the party to carry on business contrary to the other provisions
of the statute, however, a grant of certificate of enlistment in the given
facts cannot be said to be bad especially when, a challenge to the order
rejecting the change of use is pending before the Tribunal. I also notice
that the application for obtaining certificate of enlistment online was
made at a point of time when there was a subsisting interim order
passed in WPO 1234 of 2024.
35. There is another aspect of the matter though, the Division Bench
th
by its order by dated 16 February, 2026 as and by way of interim
measure had only directed the municipality to ensure that the
respondent nos. 18 and 19 do not carry out the business operation,
however, the municipality being overzealous without seeking leave of
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this Court had purported to cancel the certificate of enlistment despite
that the main matter was pending before this Court by citing the order
of the Hon’ble Division Bench. Though Mr. Kar had insisted that in
absence of any application this Court should not interfere, however, this
Court has taken a very serious view of the matter and strongly believes
that the steps taken by the Municipal Commissioner to cancel the
licence undermines the majesty of the Court especially when there was
no directive by the Division Bench or this Court to cancel the licence
and the parent issue was at large and under consideration of this Court.
In the given facts, this Court to restore public confidence in the judiciary
which has been eroded by the overzealous act of cancellation of the
certificate of enlistment, feels it appropriate that the order passed by the
municipality, which has been passed without seeking leave, should be
set aside and accordingly, quashes the same.
36. Considering the fact that the appeal from the order of rejection of
change of use is pending for some time now, in the fitness of things, it is
only appropriate that the Municipal Building Tribunal should be and is
accordingly directed to by considering the fact that the livelihood of
several persons is at stake, conclude the proceedings on an expeditious
basis preferably within a period of one month from the date of
communication of this order.
37. With the above observations and directions, the writ petition being
WPO 491 of 2025, along with the connected application, if any, stand
disposed of.
38. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be
made available to the parties, on priority basis, upon compliance of all
formalities.
(RAJA BASU CHOWDHURY, J.)