Calcutta High Court (Appellete Side)
Smt. Chandana Saha & Anr vs Sri Ashok Kumar Roy & Ors on 1 December, 2023
16.
01-12-2023
(Ct. no.06)
debajyoti
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
FMAT 528 of 2023
+
IA NO:CAN/1/2023
Smt. Chandana Saha & Anr.
Vs.
Sri Ashok Kumar Roy & Ors.
Mr. Biswaroop Bhattacharya,
Mr. Varun Kothari,
Mr. Arya Bhattacharyya
... For the Appellants.
Mr. Partha Pratim Roy,
Mr. Srinjoy Das,
Mr. Barnamoy Basak,
Mr. Sumit Kumar Dey
... For Respondents.
A judgment and order dated October 12, 2023,
whereby an injunction application of the respondents
herein filed in their suit being Title Suit No.697 of
2023, pending before learned Judge, Bench-XIII, City
Civil Court, Calcutta, was allowed, is the subject
matter of challenge in this appeal at the instance of
the defendants in the suit. The plaintiffs in the suit
are admittedly the owners of a portion of the second
floor of a multi-storied building called "Hiralal
Commercial Complex" at Premises No.35, Acharya
Prafulla Chandra Road, Kolkata-9. They purchased
that property from the erstwhile owners thereof being
Narendra Saha and others.
With the intention of using the suit property as a
tourist lodge, the plaintiffs started making certain
structural changes in the said unit. The defendants
objected on the ground that the changes that the
plaintiffs were seeking to make were not permitted by
any sanctioned plan of Kolkata Municipal
Corporation.
Complaining of resistance and complaining of
disconnection of water supply at the instance of the
defendants, the plaintiffs approached the City Civil
Court by filing the said suit. The plaintiffs applied for
an injunction to restrain the defendants from
interfering with their peaceful possession of the said
unit and also from obstructing the reconstruction
work.
Initially, an ex parte order of injunction was
passed. The defendants came up before this Court by
way of appeal. The matter was remanded back to the
learned trial Court. The order of injunction was
continued. The defendants came up to this Court for
a second time. Finally an order was passed which is
the subject matter of challenge in this appeal. The
learned trial Court has made absolute the interim
order of injunction. However, on an earlier occasion,
police help had been granted to the plaintiffs, which
was set aside by this Court on appeal. In the final
order, there is no direction for police help.
The sole issue is whether or not the plaintiffs are
making any addition or alteration in the concerned
unit in deviation from any sanctioned plan that the
plaintiffs may hold in their favour.
It appears that the present appellants had
approached a learned Judge in the writ jurisdiction
complaining that the respondents in this appeal were
making unauthorized construction, in deviation from
the sanctioned plan. That writ petition being WPO
No.1614 of 2023 was disposed of by a learned Single
Judge of this Court by a judgment and order dated
September 26, 2023, with the following observations
and directions:-
" Without entering into the merit
of the allegation of the petitioner, as
it appears that an objection alleging
unauthorized construction is pending
consideration at the end of the
Corporation, accordingly, the Executive
Engineer (Civil)/Building Department,
Borough-IV & V is directed to cause a
spot inspection to ascertain as to
whether any unauthorized construction is
going on and whether the construction
that is being made is in accordance with
the plan sanctioned by the Corporation.
Inspection shall be conducted upon prior
notice to all the parties. An
opportunity of hearing shall be provided
to the parties to produce documents in
support of their claim.
A reasoned order shall be passed at
the earliest, but positively within a
period of twelve weeks from the date of
communication of this order and the
reasoned order shall be communicated to
the parties immediately thereafter. "
We are told that the concerned Executive
Engineer has not taken any steps till now pursuant to
the aforesaid order of the learned Single Judge. This
is very surprising.
We expect a final reasoned order from the
Executive Engineer to be filed before us on the next
date of hearing. For that purpose, the concerned
Engineer shall take immediate necessary steps
including conducting a spot inspection in the
presence of the parties with prior notice to them. Let
the final order of the Executive Engineer be passed
after granting opportunity of hearing to the parties, by
December 16, 2023, so that the same can be placed
before us when this matter is next listed on December
18, 2023.
It is made clear that any further construction or
re-construction or addition or alteration made by the
present respondents, who are the plaintiffs in the
suit, shall abide by the result of this appeal. To
clarify, in the event, at the time of disposal of the
appeal, it is found that addition or alteration or any
part thereof made by the plaintiffs are in deviation
from the sanctioned plan, the same shall have to be
removed.
List the matter once again on December 18,
2023.
The Registry is directed to immediately serve a
copy of this order on the Executive Engineer (Civil),
Building Department, Borough-IV & V, Kolkata
Municipal Corporation, whose address is 22, Surya
Sen Street, College Square, Kolkata-700 012.
Learned advocates for the parties are also granted
liberty to communicate this order to the said
Executive Engineer.
All parties shall act on the server copies of this
order duly downloaded from the official website of
this Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties on compliance
of all necessary formalities.
(M. V. Muralidaran, J.) (Arijit Banerjee, J.)
