Gautam Roy vs The Kolkata Municipal ...
2022 Latest Caselaw 431 Cal

   D/L
 Item No.
  10 wt 11
09.02.2022
 KOLE
                              MAT 53 of 2022
                                  With
                            IA No. CAN 1 of 2022

                              Gautam Roy
                                -Vs.-
                 The Kolkata Municipal Corporation & Ors.

                                 With
                              MAT 22 of 2022
                                 With
                              CAN 1 of 2022
                                 With
                              CAN 2 of 2022

                               S Ramesh
                                  -Vs.-
                             Goutam Roy & Ors.


             Mr. Mr. R. N. Chakraborty,
             Mr. Amrita De,
                                                        ... for the appellant.
             Mr. A. Kr Ghosh,
             Mr. Gopal Ch. Das,
             Mr. R. De,
                                                            ... for the KMC.

             Mr. Himadri Sikhar Chakraborty,
             Mr. A. Maity,
                                                            ... for the State.
             Mr. S. Bose,
             Mrs. P. Basu Mallick,
                                                ... for the respondent no. 7.

Mr. A. Kr. Banerjee, Mr. A. Das, ... for the appellant in MAT 22 of 2022.

In Re:- MAT 53 of 2022 with CAN 1 of 2022

By consent of the parties, the appeals and the

applications are taken up together for hearing.

The appellant/writ petitioner appears to be a stranger

purchaser, who purchased the ground floor of a two-storeyed

building from one of the co-sharers of the said property. The

respondent no. 7, who is one of the brothers of the vendor of

the appellant, claims to be one of the co-sharers of the said

building.

It, further, appears that the appellant was put in

possession on the ground floor while the respondent no. 7 is

in possession of the first floor.

The respondent no.7 obtained a sanctioned plan for

making some construction/repair on the roof of the property

in question. The appellant by filing the writ petition before

the learned Single Judge sought to resist such construction.

Learned Single Judge dismissed the writ petition.

In a pending suit between the appellant and the

respondent no. 7, an injunction order has been passed

restraining the appellant from interfering with the

construction work/repair work to be carried out by

respondent no. 7.

Learned Single Judge duly considered the arguments

advanced by the respective parties and observed that the

building was in a dilapidated condition and required

immediate repair. It was, further, observed by the learned

Single Judge that the appellant could not show any

document as to his right in respect of the roof or any

document which is inconsistent with the deed of the

respondent no. 7. Learned Single Judge found from the

respective deeds of the parties that the appellant was not

given any right with regard to the roof of the said building,

whereas the respondent no. 7 has the roof-right.

Learned Single Judge, however, declined to go into

the dispute as regards the title to the said property.

We do not see any reason to interfere with the order

of the learned Single Judge. The respondent no. 7 is entitled

to carry out the construction work/repair work as sanctioned

by the Corporation. Though it has been submitted by the

appellant that the sanctioned plan was obtained by way of

collusion between respondent no.7 and the Corporation, no

such pleading is found in the writ petition. The civil rights of

the parties, as rightly observed by the learned Single Judge,

cannot be decided in this writ petition.

The appeal, being no. MAT 53 of 2022 and the

connected application, being no. CAN 1 of 2022 are

accordingly dismissed.

However, we make it clear that it will be open to the

appellant to apply for cancellation of the sanctioned plan if

the law permits him to do so.

The observations made in this order shall not have

any bearing on any pending civil case or any proceeding that

the parties may initiate before any other forum.

In Re: CAN 2 of 2022 in MAT 22 of 2022

An application has been filed by the appellant for

leave to prefer an appeal against the judgment and order

dated December 24, 2021, whereby WPA 20809 of 2021 was

dismissed.

The present applicant was not a party to the

proceedings before the learned Single Judge. The applicant

says that the re-construction/repair work, that respondent

no. 8 in the writ petition was permitted to do, is damaging

portions of the premises owned by him. We are of the view

that if he has a legitimate grievance, he should approach the

appropriate forum and not seek leave of the appeal Court to

prefer an appeal from an order to which he was not a party.

We are not inclined to grant leave to the applicant to

prefer an appeal against the order dated December 24, 2021.

However, the applicant will be at liberty to approach the

appropriate forum in accordance with law for the

enforcement of any right that he may have in respect of the

premises in question and/or for redressal of any other

grievance that he may have against the other parties.

The application being, CAN 2 of 2022 is, accordingly,

dismissed.

In Re: MAT 22 of 2022 with CAN 1 of 2022

In view of CAN 2 of 2022 being dismissed, the appeal

and the stay application also stand dismissed.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible,

after compliance with all the requisite formalities.

(Kausik Chanda, J.) (Arijit Banerjee, J.)