Calcutta High Court

Kolkata Municipal Corporation & ... vs Yusuf Khan & Ors on 25 March, 2021

                                1


               IN THE HIGH COURT AT CALCUTTA
                       CIVIL APPELLATE JURISDICTION
                               ORIGINAL SIDE

PRESENT:

HON'BLE JUSTICE SUBRATA TALUKDAR
              AND
HON'BLE JUSTICE HIRANMAY BHATTACHARYYA



                             G.A. No. 1 of 2020
                                    With
                           A.P.O. No. 148 of 2019
                                    With
                           W.P.O. No. 479 of 2017

               Kolkata Municipal Corporation & Ors.
                               -Vs.-
                        Yusuf Khan & Ors.

 For the Appellants                 : Mr.   Alok Kr. Ghosh
                                      Mr.   Ranjit Chatterjee
                                      Mr.   Gopal Chandra Das
                                      Mr.   Subhrangsu Panda


 For the Respondents                : Mr. Kalyan Bandyopadhyay

Mr. S. Sengupta Mr. S.Pal

For other respondents : Mr. S. Sarkar

Heard on : 21/01/2021

Judgment on : 25/03/2021

Subrata Talukdar, J:

The short question which arises in this appeal relates to

whether the Hon'ble Single Bench vide its judgement and order

impugned dated 30th August 2019 in WP NO. 479 of 2017 was correct

while observing on the entire list of other heritage buildings under the

Kolkata Municipal Corporation (KMC) or, the observations of the

Hon'ble Single Bench stand restricted to the building in issue in the

writ petition alone.

The building in issue is 31/1A and 31/1B, Nayanchand Dutta

Street, Kolkata 700006 popularly known in the area as Krishna

Palace.

The paragraph in issue in the impugned judgement dated 30 th

August, 2019 reads as follows:-

"After the Court by an order dated 24th September 2014 directed KMC to exercise power under Section 425B KMC Act, the convenor of the Heritage Conservation Committee issued a letter intimating the petitioner that legal action be taken against him for demolition of the heritage structure prior to obtaining permission from the Heritage Conservation Committee. In the said notice also there is mention of inclusion of the building in the heritage list prepared by the expert committee. Acceptance and adoption of the entire list en masse does not amount to compliance of the provision of Section 425B KMC Act (emphasis supplied)."

Mr. Ghosh, Ld. Counsel appearing for the KMC/the appellant,

submits that the Hon'ble Single Bench held that the inclusion of the said

building of the writ petitioner in the list of heritage buildings being in

violation of the provisions of Section 425B of the Kolkata Municipal

Corporation Act, 1980 (KMC Act) the writ petitioner is entitled to a

declaration that such inclusion is illegal. The Hon'ble Single Bench therefore

held that in view of the declaration (supra), the writ petitioner is also entitled

to the consequential relief of removal of the said building from the heritage

list of buildings prepared by the KMC.

Mr. Ghosh however submits that the observations of the Hon'ble

Single Bench on the en masse acceptance and adoption of the entire list (of

heritage buildings) be read down to apply only to the facts of the said

building in issue in the writ petition without applying whatsoever to any

other heritage building under the KMC. The effect of the observations

carries with it the effect of impacting other buildings under consideration in

the heritage list of KMC thereby creating rights and obligations qua third

parties who are not the subject matter of the writ petition.

The so-called observations of the Hon'ble Single Bench carry the

potential to open a Pandora' box of misconceived heritage buildings related

litigation. Mr. Ghosh therefore submits that either the observations be

expunged or, be read down to mean an obiter only in the facts of the writ

petition restricted to the said building alone.

Per Contra, Mr. Kalyan Bandopadhyay, Ld. Senior Counsel appearing

for the respondent in the appeal/ the writ petitioner, submits that the

purported observations brought into issue in this appeal by the KMC/ the

appellants are self-explanatory and/or self-clarificatory. It is submitted that

the purported observations should be naturally read in the context of the

facts in issue before the Hon'ble Single Bench.

Mr. Bandopadhyay points out that the said purported observations

are part of a paragraph of the judgement and order of the Hon'ble Single

Bench (as quoted above), which refers to an earlier order of the Hon'ble

Court dated 24th September 2014 by which the KMC was directed to exercise

its powers under Section 425B of the KMC Act qua the said building only. It

is submitted that reference has also been made in the said paragraph to the

action of the KMC threatening legal action against the writ petitioner for

taking steps to demolish part of the said building.

The KMC issued notice stating that the alleged work of demolition was

being carried out by the writ petitioner inspite of the fact that the said

building is part of the heritage list prepared by the Expert Committee.

Therefore, Mr. Bandopadhyay argues, that the purported observations on

acceptance and adoption of the entire list en masse is axiomatically

restrictive in its application to the so-called heritage status surrounding the

said building alone.

Having heard the parties and considering the materials placed, this

Court finds as follows.

That it must be noticed at the threshold that the present appeal has

been directed against the merits of the entire judgement and order dated

30th August 2019. The prayer in the application, being GA No.1 of 2020 as

filed by the appellants/the KMC, is for staying the operation of the order

dated 30th August 2019.

However, at the Bar arguments have been advanced restricting the

scope of intervention in this appeal only to the legal effect of the purported

observations of the Hon'ble Single Bench as recorded hereinabove. While

there is adequate force in the argument advanced by Mr. Bandopadhyay, Ld.

Senior Counsel, that the purported observations, when read in the context

of the entire judgement and order as also in the limited context of the

paragraph in which such purported observations appear (supra) it would be

clear that the said purported observations were addressed in the context of

the said building alone, on the other hand, there is also a basis to the

apprehension expressed by Learned Counsel for the appellants/ the KMC

that the said observations carry the potential of being read in rem in future

by speculators and misguided litigators.

Although, by their very character the observations appear to be in the

nature of an obiter, no attempt should therefore be made in future by third

parties to clothe them with a different legal character other than obiter to the

case in hand itself.

This Court cannot lose sight of the fact that the use of the words

entire list and en masse carry an implication of being applied in rem thereby

provoking third parties to raise omnibus claims in relation to their buildings

against the KMC. Such multiple and frivolous legal action shall obstruct the

KMC from executing the law as it stands qua heritage buildings.

This Court, at this juncture, relies on the authority of the Hon'ble

Apex Court as reported in AIR 1962 SC 680 Paragraph 19, In Re: K.T.M.T.M.

Abdul Kayoom and another v. Commissioner of Income Tax, Madras and,

underscores the binding view that a case rests on its own facts. The

relevant paragraph reads as follows:-

"......... each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such cases one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, its broad resemblance to another case is not at all decisive."

The following authorities are ad idem on the above proposition of law

as reported in AIR 2002 SC 3633 Paragraph 28:-

"Above being the position, we find no substance in the plea that evidence of eye witnesses is not sufficient to fasten guilt by application of Section 149. So far as the observations made in Kamaksha Rai's case(supra). It is to be noted that the decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (See Padamasundara Rao(dead) v. State of Tamil Nadu, (2002(3)JT(SC)1). It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial, as was observed in Krishna Mochi's case."

And in AIR 2003 SC 511 Paragraph 59:-

"A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. See Smt. Ram Rakhi V. Union of India and others (AIR 2002 Delhi

458); Delhi Administration (NCT of Delhi) v. Manoharlal (AIR 2002 SC 3088); Haryana Financial Corporation and another v. M/s. Jagadamba Oil Mills and another (2002 (1) JT (SC) 482) and Dr. Nalini Mahajan etc. v. Director of Income-tax (Investigation) and others ((2002) 257 ITR 123)."

Accordingly, the observations of the Hon'ble Single Bench under

discussion in this appeal to the effect that: "Acceptance and adoption of

the entire list en masse does not amount to compliance of the

provision of Section 425B KMC Act" in the judgement and order

impugned dated 30th August, 2019 shall be read as applicable to the facts of

the said building alone in issue in the writ petition and this appeal.