OD-2 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE WPO/428/2026 M/S. JAJODIA INTERNATIONAL VERSUS KOLKATA MUNICIPAL CORPORATION AND ORS. BEFORE The Hon’ble Justice PARTHA SARATHI CHATTERJEE Date: 10th September, 2026 Appearance Mr. Suddhasatva Banerjee, Adv. Mr. Rohit Banerjee, Adv. Mr. Nilay Sengupta, Adv. Mr. Sujit Banerjee, Adv. Mr. Ankit Sharma, Adv. …for the petitioner Mr. Biswajit Mukherjee, Adv. Mr. Guru Das Mitra, Adv. Ms, Gulnaz Quraishi, Adv. ….for the respondents 1. The present writ petition has been preferred challenging the legality and tenability of the notice dated 1st September, 2026 issued by the Municipal Commissioner, Kolkata Municipal Corporation (in short, “KMC”), whereby the closure of the petitioner’s business has been directed in exercise of the power under Section 416 of the Kolkata Municipal Corporation Act, 1980 (in short, “the 1980 Act”), on the allegation of change of use of the building and carrying on business without the requisite statutory documents. 2. Mr. Banerjee, learned Advocate appearing for the petitioner, submits that the petitioner has been carrying on the business of a guest house (lodging only) from the 3rd and 4th floors of the building situated at premises no. 57, Mahatma Gandhi 2 Road, Kolkata – 700 009. He submits that, on 1st September, 2026, certain officials of the KMC visited the said premises and conducted an inspection and, immediately thereafter, handed over the impugned notice dated 1st September, 2026 to the petitioner at the spot. The said notice directed closure of the petitioner’s business and further informed the petitioner that the Certificate of Enlistment issued in his favour had been suspended until further orders to be issued by the KMC under Section 199 of the 1980 Act. 3. Referring to sub-section (5) of Section 416 of the 1980 Act, he submits that the Municipal Commissioner is required to afford a reasonable opportunity to the person affected to show cause as to why such an order should not be made. He submits that no such opportunity of hearing was afforded to the petitioner before issuance of the impugned notice. He further submits that, although an inspection of the petitioner’s building was conducted, no inspection report was furnished to the petitioner before the impugned notice was issued. 4. Referring to the decision of a Co-ordinate Bench of this Court reported in (2006) 24 CHN 136 CAL (Laddu Gopal Bajoria & Anr. Vs. Kolkata Municipal Corporation & Ors.), he submits that, in a similar situation, upon finding that no reasonable opportunity of hearing had been afforded to the person affected and that the inspection report had not been furnished to him, the Bench quashed the order passed by the Commissioner directing closure of the business. Placing reliance on the unreported decision of the Hon’ble Division Bench of this Court in MAT 2036 of 2023 (Safi Uddin Naskar Vs. The State of West Bengal & Ors.), he submits that the Hon’ble Division Bench observed that, if the Municipality proposes to cancel a trade licence/Certificate of Enlistment, it is incumbent upon the Municipality to afford an 3 opportunity of hearing or, at least, an opportunity to show cause to the person affected. He submits that, taking note of the fact that no such opportunity had been afforded in the said case, the Hon’ble Division Bench set aside the order cancelling the trade licence solely on the ground of violation of the principles of natural justice. 5. Referring to an extract of the inspection book, he submits that, in column no. 3 thereof, the nature of use of the premises has specifically been recorded as “commercial” on the basis of the assessment report of 2017. He submits that the Corporation has accepted a sum of Rs. 9,10,000/- (Rupees nine lakhs and ten thousand only) from the petitioner towards permitting the use of the said building for commercial purposes. Referring to the money receipts issued by the Corporation, he submits that the petitioner has been depositing a sum of Rs. 16,560/- every year, which has been levied in respect of the commercial use of the said building. He contends that the said money receipts also demonstrate that the petitioner has been running a boarding/guest house (lodging only), with or without A/C, from the said portion of the building. He further submits that the petitioner’s trade licence remains valid up to 31st March, 2027. In such circumstances, he submits that the action taken by the Municipal Commissioner is arbitrary and unsustainable in law and furnishes sufficient ground for interference by this Court with the impugned notice. 6. Mr. Mukherjee, learned Advocate appearing for the Corporation, submits that the Corporation is duly empowered to take appropriate action against the owner of a building if it is found that there has been any change of use, change of occupancy or change of use group in respect thereof. Drawing my attention to sub- section (2) of Section 390 of the 1980 Act, he submits that the petitioner had been 4 granted permission to use the said building as a mercantile building for accommodating an office. However, the petitioner is presently using the said building for operating a guest house, which falls within the category of an assembly building, and such change of use, according to him, is unauthorized and illegal. He further submits that specific permission is required to be obtained from the competent authority of the Corporation for using a building for any non-residential purpose other than the purpose for which permission had originally been granted. He submits that no such permission has ever been obtained by the petitioner from the Corporation. 7. Referring to the proviso to sub-section (1) of Section 199 of the 1980 Act, he submits that the possession of a Certificate of Enlistment and the renewal thereof shall not absolve the owner of a building from obtaining any licence required under the said Act or under any other law for the time being in force. He further submits that the petitioner has not obtained the requisite fire licence in respect of the said premises. 8. In response, Mr. Banerjee refers to the notification dated 05.03.2024 and submits that, in respect of a building having a height of less than 15.5 metres, self- certification is sufficient and no separate certificate or licence from the Fire Department is required. 9. Heard learned advocates appearing for the respective parties and perused the materials on record. 10. Undisputedly, there can be no quarrel with the proposition that the Corporation is vested with ample power to take appropriate action against any unauthorized change of use of a building within its territorial jurisdiction. 5 Therefore, if it is found that any person is operating a business or carrying on any activity without obtaining the requisite permission from the competent authority, the Corporation is empowered to direct closure of such business or activity. Such power, however, is required to be exercised strictly in accordance with the procedure prescribed by the legislative mandate embodied in Section 416 of the 1980 Act. The proviso to sub-section (5) of Section 416 specifically provides that, before making any order under the said sub-section, the Municipal Commissioner shall afford a reasonable opportunity to the person affected to show cause as to why such order should not be made. The exercise of the power under Section 416 is, therefore, not unfettered but is conditioned upon compliance with the aforesaid procedural safeguard. Before taking any action under the said provision, the Municipal Commissioner is required to afford the person affected a reasonable opportunity to show cause against the proposed action. 11. In the present case, the aforesaid mandatory requirement has not been complied with and no inspection report was furnished to the petitioner before issuance of the impugned notice. Therefore, applying the principle laid down in Safi Uddin Naskar (supra), the notice dated 1st September, 2026, appearing at page 84 of the writ petition, cannot be sustained in law and is, accordingly, set aside. 12. However, this order shall not preclude the Corporation from taking appropriate steps against the petitioner in accordance with law, if it is found that the petitioner has been carrying on any business activity in contravention of any provision of the 1980 Act or any other law for the time being in force. 13. Mr. Mukherjee has sought to impress upon this Court that the expression “person affected”, as occurring in Section 416 of the 1980 Act, ought to be given a 6 restricted meaning and should be construed as referring only to the owner of the building, being the person responsible for any change of use thereof. I am unable to accept such contention. The legislature has consciously employed the expression “person affected” without restricting its application to the owner only. The use of such expression, in the absence of any qualifying words, indicates that the legislature intended to confer a wider meaning upon the expression so as to encompass every person who may be adversely affected by an order proposed to be passed under the said provision. 14. WPO/428/2026 is thus disposed of. There shall be no order as to the costs. (PARTHA SARATHI CHATTERJEE, J.) akg/sp3