Calcutta High Court
Konsortia Project Private Limited vs Sanjay Saraf And Others on 25 January, 2024
OCD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Contempt)
ORIGINAL SIDE
[Commercial Division]
CC-COM/2/2024
IA No. GA-COM/1/2024
KONSORTIA PROJECT PRIVATE LIMITED
-VS-
SANJAY SARAF AND OTHERS
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: January 25, 2024.
Appearance:
Mr. K. Thaker, Adv.
Mr. Chayan Gupta, Adv.
Mr. Ritwik Chowdhury, Adv.
Mr. Dwip Raj Basu, Adv.
...for the petitioner
Mr. Sabyasachi Choudhury, Adv.
Mr. Shaunak Mukhopadhyay, Adv.
Mr. Kollol Saha, Adv.
...for the alleged contemnor nos. 1 to 3
Mr. Sudarshan Roy, Adv.
Mr. Debayan Ghosh, Adv.
Mr. Deep Narayan Mukherjee, Adv.
...for the alleged contemnor no.4
Mr. Rahul Karmakar, Adv.
Mr. S. K. Poddar, Adv.
Mr. Abir Lal Chakrabvorti, Adv.
...for the alleged contemnor nos. 5 & 6
The Court: The petitioner has filed the present application being
GA-COM/1/2024 in CC-COM/2/2024 praying for appointment of a fit
and proper person as Special Officer to make an inventory of the said
premises, taking symbolic possession of the same and to ensure that
there is no change in the status of the said premises with regard to
the nature, character and user thereof in any manner whatsoever.
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The application filed by the petitioner was taken up for hearing
on 15th January, 2024 and by an order dated January 15, 2024 this
Court appointed a Special Officer for the purpose of visiting the suit
property to ascertain whether any construction is going on over the
property or not and to submit report before this Court.
In terms of the order passed by this Court dated January 15,
2024, the Special Officer has submitted report after serving copy to
the learned counsel for the respective parties.
Today the matter is taken up for hearing.
Learned counsel for the petitioner submits that in the report,
the Special Officer has categorically mentioned with regard to the
condition of the suit property in five positions i.e. outer portion of the
suit premises, entrance of the suit premises, ground floor of the suit
premises, first floor of the suit premises and second floor and terrace
of the suit premises.
The Special Officer while submitting the report has also
enclosed the photographs of the premises. In the report the Special
Officer has stated that with respect of outer portion of the suit
premises he has found that a hoarding of 'M-Baazar' is already
installed and a bamboo structure was also erected and a few
labourers were found carrying out certain works thereon. He also
found that labourers were unloading sacks containing merchandise
and apparel and carrying the same to be stored inside the premises.
As regard entrance of the premises, the Special Officer stated that he
has found some electrical wiring and fitting works which were carried
out. As regard ground floor of the premises he has mentioned that
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false ceiling was partly constructed with electrical wires hanging
therefrom and few columns were also found to be in existence. He also
mentioned that on the rear portion of the ground floor he found a false
ceiling was already constructed with Air Conditioner vents and
electrical wires found hanging from such false ceiling. In conclusion
with regard to the ground floor of the premises, the Special Officer
held that open areas of the ground floor were also inspected where "no
construction activity was found".
As regard first floor of the suit premises, the Special Officer has
mentioned that the main hall on the first floor was found to be in
shambles with Air Conditioners, electrical wires, paint buckets and
other articles strewn across everywhere but he has stated that "no
construction activity was found ongoing on the first floor at the time of
such inspection".
He also stated that while inspecting the first floor he found a
staircase leading to the ground floor. However, the same was blocked
by a brick wall but that was not plastered and in conclusion he has
stated that "no construction activity was found to be ongoing".
As regard second floor of the building, the Special Officer stated
that in the second floor an office space was found in existence with no
construction activity going on.
The petitioner has accepted the report filed by the Special
Officer and has relied upon the photographs annexed with the report.
By pointing out the photographs along with the report, learned
counsel for the petitioner submits that this Court has passed an order
of injunction restraining the defendant from making any construction.
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But from the photographs it has been crystal clear that the
defendants are making construction over the property and have
willfully and deliberately violated the order of injunction passed by
this Court and thus the Special Officer may be directed to take
symbolic possession of the suit property.
Mr. Thaker learned advocate appearing for the petitioner has
relied upon the judgment reported in (1996) 4 SCC 622 (Delhi
Development Authority -vs- Skipper construction Co. (P) Ltd. And
Another) and submitted that it is a settled law that if the Court has
passed an order of injunction and after the order of injunction if the
Court finds that the opposite party has violated the order, then Court
cannot wait for execution of the said order with the provision of law
but can take appropriate action by invoking the inherent power
provided under the Code of Civil Procedure. Mr. Thaker also relied
upon the judgment reported in 1985 SCC OnLine Cal 146 (Sujit Pal -vs-
Prabir Kumar Sun and others) and submitted that the judgment
passed by the Division Bench of this Court is also affirmed by the
Hon'ble Supreme Court in the case referred above and submitted that
this is a fit case wherein a direction can be given to the Special Officer
for taking symbolic possession as the defendants are carrying on
construction in violation of the order passed by this Court.
Per contra, Mr. Sabyasachi Choudhury, learned advocate
appearing for the alleged contemnor nos. 1, 2 and 3 submits that the
report submitted by the Special Officer has favoured the alleged
contemnors and in the report it is categorically mentioned by the
Special Officer that no construction is going on. Mr. Choudhury
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further submits that with regard to the ceiling work and other works
which is being carried on by the alleged contemnors are not coming
under the purview of the construction work. Mr. Choudhury has relied
upon the Kolkata Municipal Corporation Building Rules 2009 and
referred Rule 3(2) of the said Rules and submitted that in the said
Rules also it is mentioned that for the works which are mentioned in
the said Rules do not require any permission from the Municipal
Corporation and that are not coming under the purview of the
construction.
He submits that fitting the ceiling Air Conditioner, electrical
wire are not coming under the purview of the construction work and it
cannot be said that the respondents have violated the order passed by
this Court.
Mr. Choudhury also draws the attention of the order passed by
this Court wherein this Court has restrained the respondents, their
men and agents from making any construction over the premises in
question and as per report of the Special Officer, no construction is
going on and as such, the application filed by the petitioner is liable to
be dismissed with exemplary cost.
Mr. Choudhury further submits that in the injunction
application, the petitioner has made several prayers wherein this
Court has only passed an order of injunction restraining the
respondents from making any construction over the property with
respect of prayer (b) of the injunction application and not with respect
of prayer (c) of the said application and as such the application filed
by the petitioner is liable to be dismissed.
Mr. Rahul Karmakar, learned advocate appearing for the alleged
contemnor nos. 5 and 6 submits that he has adopted the submission
made by Mr. Choudhury. He only submits that the case laws cited by
Mr. Thaker are not applicable in the facts and circumstances of the
present case.
Mr. Sudarshan Roy, learned advocate appearing for the alleged
contemnor no.4 submits that he adopted the submission made by Mr.
Choudhury and Mr. Karmakar and he submits that he is not in
occupation of the property in question.
Heard learned counsel for the respective parties.
Perused the application and the report of the Special Officer.
This Court by an order dated January 4, 2024 had passed an
order of injunction restraining the respondents, their men and agents
and servants from making any construction over the premises no.39,
Bentinck Street, Municipal Ward no.46, P.S. Hare Street Kolkata -
700069 till 7th February, 2024.
After the order passed by this Court, the petitioner has filed the
present application on the allegation that the alleged contemnors in
violation of the order passed by this Court dated January 4, 2024 are
making construction over the property. This Court on the allegation of
the petitioner has appointed a Special Officer and the Special Officer
has submitted report. In the report, the Special Officer has
categorically stated that no construction was going on, only ceiling
works, fitting of Air Conditioners and electrical wires is going on at the
time of inspection of the premises. Photographs which the petitioner
are relying upon also corroborate the report of the Special Officer
which reveals that no construction is there only some fittings work is
going on in the suit premises.
This Court by an order dated January 4, 2024 has specifically
restrained the respondents, their men and agents and servants from
making any construction. As per the Kolkata Municipal Corporation
Building Rules 2009, erection of false ceiling in any floor for installing
Air Conditioners, lightening or decorative purpose or re-flooring of the
surface of the existing floor is not coming under the purview of the
construction work and no approval is required.
Considering the above, this Court finds that the application filed
by the petitioner is misconceived and, accordingly, the same is
dismissed. GA-COM/1/2024 is thus dismissed.
The Special Officer is discharged from the present case.
(KRISHNA RAO, J.)
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