Calcutta High Court
Primelink Tradecom Llp vs Shiv Shankar Dubey And Ors on 22 May, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
OD-1
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APOT/136/2025
With WPO/284/2025
IA No. GA/1/2025
PRIMELINK TRADECOM LLP
-VS-
SHIV SHANKAR DUBEY AND ORS
BEFORE:
The Hon'ble JUSTICE TAPABRATA CHAKRABORTY
-AND-
The Hon'ble JUSTICE REETOBROTO KUMAR MITRA
Date: May 22, 2025.
Appearance:
Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Soumya Majumdar, Sr. Adv.
Mr. Shounak Mukhopadhyay, Adv.
Mr. Kallol Saha, Adv.
Mr. Aakash Ghosh, Adv.
...for the appellant
Mr. Lakshi Kumar Gupta, Sr. Adv.
Mr. Biswajit Mukherjee. Adv.
Mr. Rishava Karnani, Adv.
Ms. Sonali Ghosh Basu, Adv.
...for the respondent No. 1
Ms. Jhuma Chakraborty, Adv.
Mr. Suddhadeb Adak, Adv.
...for the State
Mr. Alak Kumar Ghosh, Adv.
Mr. Swapan Kumar Debnath, Adv.
Mr. Gopal Chandra Das, Adv.
...for KMC
Mr. Sudarsan Roy, Adv.
Mr. Debayan Ghosh, Adv.
...for the respondent nos.6 to 14
Mr. S. K. Poddar, Adv.
...for the respondent nos. 15 and 16
Mr. Chayan Gupta, Adv.
Mr. Dwipraj Basu, Adv.
Mr. Rithick Choudhury, Adv.
...for respondent no. 17
The present appeal has been preferred challenging an order dated 7th
May, 2025 passed by the learned single Judge in the writ petition being
WPO No. 284 of 2025. The said writ petition was preferred challenging,
inter alia, a Fire Safety Certificate (hereinafter referred to as FSC) dated 11th
April, 2025 issued by the Director, Fire Prevention Wing, West Bengal Fire
and Emergency Services. By the said order the learned single Judge
directed that the 'subject premises shall not be used for any commercial
purpose till 19th May, 2025 or until further order, whichever is earlier'. The
matter was made returnable on 16th May, 2025 directing the respondent
no.2 'to file a report as to whether all documents in relation to the subject
premises was duly considered prior to issuance of the fire safety certificate.
Whether the infringement in the side upon spaces of the subject structure and
the roof cover in the terrace was noticed at the time of issuance of the fire
safety certificate shall be disclosed in the report'.
The present appeal was earlier heard and adjourned on 16th May,
2025 and directed to appear on 21st May, 2025, as the writ petition was
fixed for hearing before the learned single Judge on 19th May, 2025. On the
said date, the respondent no.2 filed a report as called for, before the learned
single Judge. The said report was accepted and the writ petition was
adjourned. As per the earlier order, the present appeal has been enlisted
today.
Mr. Bhattacharjee, learned senior advocate, assisted by Mr.
Majumder, appearing for the appellant argues that the respondent no.1
herein had no locus to file the writ petition inasmuch as he is not a
resident of premises no. 39, Bentinck Street, Kolkata- 700069 (hereinafter
referred to as the said premises). The said premises was originally operated
as a cinema hall under the name and style of 'Paradise Cinema' which
ceased to operate since 2020. The appellant herein is lawful sub-lessee and
is in possession of portions of the said premises. On the ground floor of the
said premises, the appellant was carrying on and operating a garment
shop/store since the year 2024. Alleging that the appellant was operating
the business by making unauthorized constructions and was running the
said business without proper fire safety recommendation, the respondent
no.1 lodged a complaint before the Kolkata Municipal Corporation
(hereinafter referred to as KMC) and as no steps were taken by the
authorities a writ petition being WPO 1109 of 2024 was preferred. The
appellant also preferred a writ petition being WPO 134 of 2024 challenging
a notice dated 20th January, 2025 directing the appellant to stop
commercial activity. Both the writ petitions were heard together and an
order was passed on 17th March, 2025 directing the department to conduct
an inspection.
Mr. Bhattacherjee submits that after conducting inspections, the Fire
Safety Recommendation (hereinafter referred to as FSR) was issued 'subject
to regularization of change of occupancy form the competent building
sanctioning authority, i.e., KMC'. On the basis of the said FSR the FSC was
issued on 11th April, 2025 and on the basis of the same the appellant
started operating its shop engaging about 50 employees. However, the
learned single Judge by the order impugned upon calling for a report from
the respondent no.3, abruptly directed that the subject premises shall not
be used for any commercial purpose. The impugned order does not disclose
any reason as to why the business was stopped ignoring the subsistence of
a valid FSC. By a cryptic order, the final relief claimed was granted at the
interim stage. The appellant's business has been stopped granting
unnecessary weightage to the unfounded allegations levelled by a person
who is not even a resident of the said premises.
He submits that the learned single Judge failed to appreciate that the
appellant had taken all fire safety measures in the said premises as would
be explicit from the report of the Divisional Fire Officer dated 21 st March,
2025. The competent authority upon perusal of all records took a conscious
decision to issue the FSC. Without arriving at any prima facie satisfaction
that the said FSC is unsustainable in law or that the same suffers from any
jurisdictional error, the appellant's business was stopped calling for a
further report from the respondent no.3.
Mr. Gupta, learned senior advocate appearing for the respondent
no.1 denies and disputes the contention and submits that only on the basis
of an unconditional FSR, the impugned FSC could have been issued. The
FSR dated 20th March, 2025 was issued with a specific rider that the same
would be 'subject to regularization of change of occupancy form the
competent building sanctioning authority, i.e., KMC'. Admittedly, the change
of occupancy pertaining to the said premises has not yet been granted and
the appellant has approached the competent authority challenging such
decision disallowing the appellant's prayer for change of occupancy. In the
said conspectus, it is explicit that the FSC issued on the basis of a
conditional FSR is not sustainable in law.
He further alleges that the conditions for issuance of FSC detailed in
Rule 19 of the West Bengal Fire Services (Fire, Prevention and Fire Safety)
Rules, 2003 have not been fulfilled. In the report dated 21st March, 2025 it
has been clearly stated that the building has no clear open space as
statutorily required and in view thereof, the FSC could not have been
issued. In support of the arguments advanced reliance has been placed
upon the judgment delivered in the case of Raghunath Rai Bareja and
Another Vs. Punjab National Bank and Others, reported in (2007) 2 Supreme
Court Cases 230 wherein it has been inter alia observed that equity can
only supplement the law but it cannot supplant or override it.
Ms. Jhuma Chakraborty, learned advocate appearing for the State
respondents submits that the Technical Expert Committee (hereinafter
referred to as TEC) has considered the inspection reports and all other
documents and has recommended for issuance of FSC upon observing that
the occupancy load at the premises stands reduced.
In reply Mr. Bhattacharjee submits that the issue of change of
occupancy is relevant for calculation of taxes and has no direct nexus with
regard to grant of FSC moreso when it would be evident from the tax
receipts that the KMC is aware that the nature of use of the building is as
'Shop, Office + Theatre'.
He contends that before the learned single Judge the respondent no.3
had already filed a report dated 14th May, 2025 wherefrom it would be
evident that the competent TEC did recommend for issuance of the FSC.
We have the learned advocates appearing for the respective parties
and considered the material on record.
A perusal of the impugned order reveals that the learned single Judge
upon calling for a report from the respondent no.3 as to whether all
documents were considered prior to issuance of FSC and as to whether any
infringement of the side open spaces and roof cover was noted prior to
issuance of the FSC, directed that the premises shall not be used for any
commercial purpose till 19th May, 2025.
Records reveal that on the returnable date, the report as called for
was submitted by the respondent no.3. A perusal of the same would reveal
that the TEC upon considering all documents and taking note of side open
space and roof of the building and upon extensive evaluation recommended
for issuance of FSC. As regards the change of occupancy it was observed
that 'the ground floor of the building was earlier used as Cinema Hall
(Assembly occupancy) and it is presently used as Retail shop (Mercantile
occupancy) which has lesser occupancy load than earlier'. Considering the
lesser occupancy load and upon conducting thorough inspection the TEC
recommended for issuance of FSC. The judgment delivered in the case of
Raghunath Rai Bareja (supra) is distinguishable on facts. The respondent
no.1 has already used an exception to the report filed by the respondent
no.3. Let the same, as produced, be kept on record.
Prima facie the direction that the subject premises shall not be used
for any commercial purpose, is not supported with appropriate reasons.
Initially the interim order was passed for about two weeks calling for report
from the respondent no.3. The said report dated 14th May, 2025, as filed
was not considered by the learned single Judge and the matter was
adjourned in view of pendency of the appeal and the interim order was
extended till 21st May, 2025.
In our opinion, prima facie, the appellant ought not to have been
restrained from operating its business in the said premises before arriving
at any finding that the FSC, as issued, is not sustainable in law. The
vacation of the interim order shall not cause a greater loss and prejudice to
the respondent no.1 than the loss and prejudice, the absence thereof, is
likely to be caused to the appellant.
Accordingly, the interim order passed by the learned single Judge on
7th May, 2025 is set aside.
The respondents herein shall file the affidavits-in-opposition to the
writ petition within a week after the vacation. Reply thereto, if any shall be
filed within a week thereafter. The period specified for exchange of the
affidavits shall be mandatory and the parties would be at liberty to pray for
expeditious disposal of the writ petition.
With the above observations and directions the appeal and the
connected application are disposed of.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be
supplied to the parties, upon compliance of all requisite formalities.
(TAPABRATA CHAKRABORTY, J.)
sp3
(REETOBROTO KUMAR MITRA, J.)
