Calcutta High Court
Maharaja Prodyut Kumar Deb Barman vs Shiromoni Flat Owners ... on 13 December, 2021
OD-1, 2 & 3
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
IA No. GA/1/2021
In
APOT/203/2021
MAHARAJA PRODYUT KUMAR DEB BARMAN
-VS-
SHIROMONI FLAT OWNERS ASSOCIATION
&
APOT/204/2021
With
WPO/45/2018
MAHARAJA PRODYUT KUMAR DEB
-VS-
SHIROMONI FLAT OWNERS ASSOCIATION AND ORS
&
IA NO. GA/1/2021
With
WPO/45/2018
In
APOT/206/2021
MAHARAJA PRODYUT KUMAR DEB
-VS-
SHIROMONI FLAT OWNERS ASSOCIATION
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE KAUSIK CHANDA
Date : December 13, 2021.
[Via video conference]
Appearance
Mr. Ratnanko Banerji, Sr. Adv.
Mr. Krishna Raj Thaker, Adv.
Mr. Aditya Kanodia, Adv.
Mr. Indradeep Basu, Adv.
...for the Appellant
2
Mr. Sakya Sen, Adv.
Mrs. Reshmi Ghosh, Adv.
Mr. Atish Ghosh, Adv.
...for the respondent nos. 1 to 16/writ petitioners
Mr. Utpal Bose, Sr. Adv.
Mr. Reetobroto Mitra, Adv.
Ms. Labanyasree Sinha, Adv.
...for the respondent no.25
Mr. Probal Kr. Mukherjee, Sr. Adv.
Mr. Subrata Goswami, Adv.
...for the respondent nos. 26 & 27
Mr. Achintya Kumar Banerjee, Adv.
Mr. Gopal Chandra Das, Adv.
...for KMC
The Court : By consent of the parties, the appeal and the stay
application are taken up together for hearing.
Affidavit-of-service filed in Court today is taken on record.
The present litigation pertains to a construction that is being made on
premises situate at 59, Ballygunge Cirular Road, 700019, which is popularly
known as 'Tripura House'. The appellant in these three appeals is the owner of
the land in question.
The respondent nos.1 to 16 herein filed a writ petition challenging a
plan sanctioned by the Kolkata Municipal Corporation (in short 'KMC') for
construction of a multistoried building on the land in question. In the writ
petition an interim order was prayed for stopping the construction. By an
order dated April 23, 2018, a learned Single Judge declined to stay the
construction, gave direction for exchange of affidavits and recorded that the
construction shall abide by the result of the writ petition.
Thereafter, from time to time the writ petition was heard. On August
23,2021, an order was passed by the learned Single Judge staying further
construction on the land in question. The learned Judge recorded that
adjournment was being sought for by KMC and respondent nos.9 and 10.
Because of the pressure of work, it would not be possible for the learned
Judge to hear out the writ petition before the puja vacation. Further
construction was stayed till November 30, 2021.
Being aggrieved, the developer came up in appeal against the aforesaid
stay order. By an order dated November 29, 2021, this Bench disposed of the
appeal, without interfering, in view of the fact that the interim order was to
continue only till the next day i.e. November 30, 2021 and the matter was
being heard by the learned Single Judge. This Bench did not go into the merits
of the interim order of stay passed on August 23, 2021 by the learned Judge.
On November 29, 2021 itself, the learned Judge passed an order
extending the interim order of stay till December 24, 2021.
The present appellant applied before the learned Single Judge for
vacating of the interim order of stay. It is the contention of the appellant that
by an order dated December 3, 2021, the appellant's prayer for vacating the
order of stay of further construction was refused. The appellant has filed an
appeal against the order dated December 3, 2021. The appellant has also filed
appeals against the orders dated August 23, 2021 and November 29, 2021.
Appearing for the appellant in all the three appeals, Mr. Ratnanko
Banerji, learned senior counsel submitted that the order dated August 23,
2021 could not have been passed as the same would be hit by the principles of
res judicata. A learned Single Judge at the time of admitting the writ petition,
declined to pass an interim order of stay of construction. Hence, unless there
was change of circumstances, at a subsequent stage in the same proceedings,
no such interim order could be passed. In this connection Mr. Banerji relied
on a decision of the Supreme Court in the case of Barkat Ali And Anr. -vs.-
Badrinarain (Dead) by LRS. reported at (2008) 4 Supreme Court Cases 615
wherein at paragraph 13 of the reported judgment, the Supreme Court held
that "the principles of res judicata not only apply in respect of separate
proceedings but the general principles also apply at the subsequent stage of
the same proceedings also and the same Court is precluded to go into that
question again which has been decided or deemed to have been decided by it
at an early stage." The Hon'ble Court referred to its earlier judgments in the
case of Arjun Singh -vs.- Mohindra Kumar reported at AIR 1964 SC 993 and in
the case of Satyadhyan Ghosal -vs.- Deorajin Debi reported at AIR 1960 SC
941.
The second submission of Mr. Banerji was that the parent order dated
August 23, 2021, is devoid of any reason at all. Any order including any
interim order must be supported by reasons to be recorded in that order.
Otherwise, the order is rendered illegal and in fact void. In this connection,
Mr. Banerji referred to the Supreme Court decisions in Shiv Kumar Chadha
Etc. -vs.- Municipal Corporation of Delhi reported at (1993) 3 SCC 161,
Secretary And Curator, Victoria Memorial Hall -vs.- Howrah Ganatantrik Nagrik
Samity And Ors. reported at (2010) 3 SCC 732 and Gujarat Bottling Co. Ltd.
And Ors. -vs.- Coca Cola Co. And Ors. reported at (1995) 5 SCC 545.
Relying on these decisions, Mr. Banerjee asked for setting aside of the
orders under appeal.
Appearing for the writ petitioners/respondents, Mr. Sakya Sen, learned
senior counsel submitted that the appellant did not participate in the
proceedings before the learned Single Judge at any stage. The appellant has
not filed any affidavit nor has made submission through counsel. The conduct
of the appellant does not entitle him to make any grievance against the orders
under appeal. The appellant has waited for about four months before
challenging the August 23, 2021 order in appeal. The learned Judge is hearing
out the matter with great expedition. KMC has concluded its submission. Only
the Heritage Commission and the developer remain to advance their
arguments. The proceedings before the learned Single Judge are likely to
conclude at an early date. Since the stay order has been continuing from
August 23, 2021, balance of convenience is in favour of the order being
continued till the disposal of the writ petition by the learned Single Judge.
Mr. Sen emphasized that the Court should not help or pass any order
in aid of a recalcitrant litigant like the present appellant whose only object has
been to delay the proceedings before the learned Single Judge.
We have given our anxious consideration to the rival contention of the
parties. When we disposed of the appeal of the developer against the order
dated August 23, 2021, we did not go into the merits of the order in view of
the fact that the order was due to expire on November 30, 2021 and we were
considering the appeal on the previous date i.e. on November 29, 2021.
However, presently we have to decide whether the August 23, 2021 order is
sustainable in law.
As we have recorded above, a learned Single Judge of this Court at the
time of admitting the writ petition refused to pass an interim order of stay of
construction. This was affirmed by a Division Bench of this Court by its order
dated May 14, 2018. We are of the view that unless there was change of
circumstances, no interim order of stay of construction should have been
passed by the learned Single Judge. The principles of res judicata do apply to
different stages of the same proceedings.
Further, there is no reason recorded in the order dated August 23,
2021 as to why it suddenly became necessary to pass an interim order of stay
of construction. With respect, the fact that for whatever reason the Court was
unable to hear out the matter before the puja vacation, in our view, is not a
reason that can by itself sustain the impugned order of stay of construction.
The Hon'ble Supreme Court has laid down in several decisions some of which
have been referred to above that reasons are the life-blood of a judicial order.
We are unable to sustain the order dated August 23, 2021 and the
subsequent order dated November 29, 2021, which merely continued the
earlier order. The said orders are set aside.
We make it clear that nothing herein will prevent the learned Single
Judge from passing an interim order if the learned Judge is of the view that
same is necessary to do justice to the parties, and such order should reflect
the reasons as to why the learned Judge is of the opinion that an interim
order of stay of construction should be passed at this stage.
We also hope that the proceedings before the learned Judge would
come to an early conclusion. None of the parties shall make any prayer for
adjournment without extremely compelling reasons.
We have not dwelt on the merits of the writ petition at all. Our
observations are restricted to the order dated August 23, 2021 and the order
dated November 29, 2021.
In view of the aforesaid, we need not pass any order on the appeal
preferred against the order dated December 3, 2021 which appeal, according
to Mr. Sen, is in any event not maintainable. However, we do not need to
decide that point in view of what we have recorded above.
The three appeals along with the connected applications are
accordingly disposed of.
Since, affidavits have not been called for, the allegations in the stay
petition shall be deemed not to be admitted by the respondents.
We are told that the matter has been fixed for hearing by the learned
Single Judge tomorrow i.e. 14th December, 2021. We are sure that the parties
will fully co-operate with the learned Judge in proceeding with utmost
expedition and bringing the writ petition to an early conclusion.
(ARIJIT BANERJEE, J.)
(KAUSIK CHANDA, J.)
sp3/Sbghosh
