Bhaskar Ghosh vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

Learned counsel for the petitioner files an affidavit-in-reply to the affidavit-in-opposition filed by the private respondent no.13 and objection to the report filed by the respondent-Municipality. However, the State has not been filed any opposition.

When the matter is taken up for hearing, learned counsel for the writ petitioner submits that the private respondent no.13 has violated the provisions of Section 2A of the West Bengal Municipal (Building) Rules, 2007 in converting the classification of a portion of the building-in-question to a commercial building, for the purpose of running an operation theatre, despite such disputed portion being an area on the second floor of the building, which was originally classified as residential.

It is further submitted that there is no legal provision for such conversion.

Learned counsel for the Municipality submits that such conversion was permitted on the basis of no-objection being given by the developers, who were, at the relevant juncture, in occupation of the portion now occupied by the writ petitioner, which the writ petitioner subsequently acquired by purchase.

It is further argued on behalf of the writ petitioner that that the affidavit filed by the Municipality itself shows that there was a revised building plan, without disclosing as to under what provision of law such revision/conversion was made. Learned counsel further relies on clauses (v), (viii) and (ix) of the said report in support of his submissions and argues that the said report itself shows that there is an unauthorised use of common areas including stairs (south front side) of the building, which is visible, and no trade license has been issued by the Dum Dum Municipality for use of the disputed 890 sq. ft. in the second floor as IVF Lab.

However, learned counsel appearing on behalf of the State submits that although a report given by the CMOH is with learned counsel, since it is not in the form of an affidavit, as directed by a previous co-ordinate Bench, the same could not be filed and seeks leave to file such report in the form of affidavit. It is submitted by learned counsel for the State that the said report of CMOH apparently shows that all the required licences were issued in favour of the private respondent.

It appears from the pleadings in the writ petition itself, as well as reliefs therein, that the dispute raised by the writ petitioner revolves around a recognition and licence under Section 7 of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 being granted in favour of the clinical establishment of the respondent no.13 in the residential-cum-commercial building. Learned counsel for the writ petitioner bases his argument on the premise that such licences were issued on the basis of the conversion permitted by the Municipality, which itself was without any legal basis and as such, cannot stand legal scrutiny.

Learned counsel appearing for the private respondent argues that the present contention of the petitioner is beyond the pleadings in the writ petition itself, where only the grant of licence under Section 7 of the 2017 Act has been challenged and consequential reliefs have been claimed. In the event, it is submitted, the petitioner challenges the conversion, the present writ petition ought to be heard by a Bench taking up Municipality matters and not Group-IX matters under the residuary jurisdiction of this Court. As such, it is further argued by learned counsel for the private respondent that the initial ad interim order of restraint passed by the Bench then taking up residuary matters, was also without jurisdiction.

It is submitted on behalf of the private respondent that, since the private respondent has disclosed all licences, issued by relevant authorities, having been granted for running an IVF unit and not of an operation theatre as alleged, in the disputed portion of second floor of the building-in-question, there can be no bar in running such establishment from the said portion and the interim order ought to be vacated immediately.

However, it appears that, from the report issued by the Municipality, it is not satisfactorily established as to how the conversion was effected, which led to the present challenge, relating to grant of the licence under the Section 7 of the 2017 Act. Although learned counsel for the private respondent is justified in arguing that in the event the matter pertains to a challenge to the permission given by the Municipality for conversion, the matter should go before a Bench taking up Municipality matters, such lack of determination ipso facto cannot take away the legality of the interim order granted by the co-ordinate Bench, since the matter of determination is decided by the Chief Justice amongst the Judges of this Court and is not an absolute bar in taking up any matter by any of the co-ordinate Benches, since this Court acts as a High Court, in any event, exercising its jurisdiction under Article 226 of the Constitution of India, even though it does not have determination in the matter and the passing of such orders even by a Bench not having determination as per the roster issued by the Chief Justice, does not, by itself, denude the Court of its jurisdiction as a High Court under Article 226 of the Constitution of India. Hence, the interim order passed by the coordinate Bench in this matter cannot be vacated on such score alone.

Moreover, it is apparent that even the report of the Municipality states that some portion of the property-in-question is being used in an unauthorised manner. It is further alleged therein that the Dum Dum Municipality did not issue any trade licence for use of 890 sq. ft. on the second floor as IVF Lab. Since there is controversy with regard to issuance of licence in respect of the disputed portion, which, according to the private respondent, cannot be restricted to a particular portion of the building, the private respondent cannot prima facie claim a right to run a laboratory or a clinical establishment over the entire building by merely showing trade licence granted in respect of a portion of such building, more so if the conversion of the character of occupation of such building with the blessings of the Municipality was itself illegal.

Hence, the report in the form of affidavit, to be filed by the CMOH, acquires importance. Accordingly, while deprecating the delay occasioned by the respondent no.1 in filing the report of the CMOH in affidavit form, which is adversely affecting the running of a clinical establishment, another opportunity ought to be given to the respondent no.1 to file such report in affidavit form, for a proper and complete adjudication of the dispute involved in the matter, as set forth above.

Accordingly, the respondent no.1 is directed to file such report of the CMOH, as previously directed by a coordinate Bench, in the form of an affidavit, on the reopening date after the oncoming Christmas Vacation.

Reply, if any, shall be filed by the writ petitioner within January 6, 2020.

Let the matter appear on January 7, 2020 at 10.30 a.m. under the same heading.