PRATIMA SARKAR Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS appeal arises out of a judgment and order dated August 14, 1969, discharging the rule obtained by the appellant and the respondent No. 6 of the present appeal, under Article 226 of the Constitution of India. The appellant and the respondent No. 6 alleged that they were the recorded owners of premises Nos. 29-B and 29-C Gariahat Road, respectively, while the respondent No. 5 was the recorded owner of premises No. 14/A/1, Gariahat Road (hereinafter referred to as the disputed premises). Premises Nos. 29-B and 29-C Gariahat Road are to the adjacent north of the disputed premises belonging to the respondent No. 5. According to them the building on the disputed premises was a one-storied brick built structure till February, 1967, when they came to know that the respondent No. 5 was constructing the second and the third storey over the existing structure on the disputed premises. They alleged that the disputed premises abuts a common passage about 8' wide, and so according to the Building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951, the respondent No. 5 was entitled to have only a one storied house on the said plot of land. It was further alleged that the plan for the proposed construction sanctioned by the Corporation of Calcutta was in violation of Rules 3, 29, 30, 32, 33 and 50 of Schedule XVI of the Calcutta Municipal Act, 1951. On these allegations the appellant and the respondent No. 6 who were the petitioners before the Trial Court prayed for an order restraining the respondents, the Corporation of Calcutta, its officers, and the respondent No. 5 from giving effect to or from proceeding with the construction on the disputed premises in accordance with the sanctioned plan.

(2.) THE respondents Nos. 1 to 4 as well as the respondent No. 5 denied that the plan for the proposed construction on the disputed premises was sanctioned in violation of the rules, and asserted that the sanction accorded by the Corporation of Calcutta was perfectly legal and valid. THE respondent No. 5 further alleged that the application filed by the appellant and the respondent No. 6 under Article 226 of the Constitution was not a bona fide application, and she referred to certain facts in support of her said allegation. In the application under Article 226 of the Constitution the Commissioner of the Corporation of Calcutta was impleaded as the respondent No. 2. THE Commissioner was also impleaded in his personal capacity, and Shri R. K. Bhattacharyya who was the then Commissioner of the Corporation of Calcutta, was impleaded as respondent No. 3. While the matter was pending in the Trial Court Shri Priyo Guha was appointed as the Commissioner of the Corporation of Calcutta in place of Shri Bhattacharyya. By an order dated March 25, 1969, Shri Guha was substituted in place of Shri Bhattacharyya.

(3.) MR. Bankim Chandra Dutt,, learned Advocate appearing on behalf of the appellant at first canvassed before us the objection about the violation of the Building Rules with reference to all the Building Rules mentioned in the petition before the Trial Court, namely, rules 3, 29, 30, 32, 33 and 50 of Schedule XVI to the Calcutta Municipal Act, 1951. But ultimately MR. Dutt gave up his client's case with regard to the alleged violation of the rules, except Rule 3 which relates to the height upto which a building can be constructed.