The high court on Tuesday kept in “abeyance” for two weeks the demolition order issued by the city’s civic body for rooftop bars and restaurants, directing the Kolkata Municipal Corporation (KMC) to “reverify” documentation before taking further action.
“Even a party found to be in violation of the law is entitled to be dealt with in accordance with established legal procedures and not subjected to impulsive or arbitrary actions,” Justice Gaurang Kanth stated in open court.
Last week, the KMC had issued notices to numerous rooftop establishments across the city demanding they “stop operations and demolish authorised structures immediately” or face demolition under Section 400(8) of the KMC Act.
Three popular city establishments with rooftop sections challenged the notices in court, with support from the National Restaurant Association of India (NRAI). The petition was heard by Justice Kanth on Tuesday.
While the court order restrains the petitioners from “carrying out any activities whatsoever at the disputed site” for two weeks, they may continue operating in their lower-floor sections. Since the NRAI is a petitioner, most restaurants with rooftop sections are expected to follow the same guidelines.
A senior state government official confirmed that the KMC will halt demolitions of all similar establishments. “A few restaurants have moved the court. But, in principle, the case affects all rooftop establishments,” the official said.
Key points from the order
Justice Kanth’s order, uploaded to the court website on Tuesday evening, made several significant observations:
- The central question is whether emergency action under Section 400(8) of the KMC Act is warranted
- This court is conscious of the fact that the invocation of Section 400(1) and Section 400(8) serves distinct legal purposes. Section 400(1) generally addresses construction violations, while Section 400(8) should be invoked only when immediate action is necessary to prevent imminent injury
- The discretion to determine which provision applies belongs solely to the competent authority, deemed to be an expert body
- Section 400(8) requires a conclusive opinion that the unauthorised structure poses an imminent threat to life or property. In the absence of such imminent danger, Section 400(8) should not be invoked at the preliminary stage, and the principles of natural justice must be observed
- The respondent authority (KMC) appears to have pursued demolition after failing to prevent unauthorised construction and activity. As a statutory authority, it (KMC) must act reasonably, follow statutory guidelines, and avoid arbitrary application of the law
- The court has directed the KMC to reverify all documentation and reach a fresh decision on whether Section 400(8) should be invoked
- Only if the KMC determines that a “grave emergency” exists may they proceed with demolition. Otherwise, affected establishments must be given a hearing opportunity first
- The aforesaid steps shall be undertaken and completed expeditiously, but in any event, not later than two weeks from the date of communication of this order
- In the interim, the impugned notice under Section 401 of the KMC Act shall remain in abeyance till the respondent takes a final decision
- The petitioners are restrained from carrying out any activities whatsoever at the disputed site
The petitioners’ counsel, Joydip Kar, argued that the establishments in question possessed all necessary permits.
This ruling follows recent demolitions at LMNOQ, a rooftop establishment at Celica Park on Park Street, which occurred after chief minister Mamata Banerjee’s surprise visit raised fire-safety concerns. Her inspection came in the wake of a devastating fire at Rituraj Hotel in Burrabazar that claimed 14 lives on the night of April 29.
Justice Kanth had previously stayed LMNOQ’s demolition until Thursday, the next hearing, and asked the KMC to provide legal justification for their actions.