PRANATI DAS Vs. SASANKA SENGUPTA

JUDGEMENT

(1.) This appeal, at the instance of Respondent No.6 in the Rule (hereinafter referred to as the appellant), who is the owner of premises No.1/172A, Gariahat Road, South, Jodhpur Park, Calcutta-31, is directed against the judgment and order dated July 9, 1974, whereby Civil Rule No. 2359(W) of 1959, obtained by the Respondent No.1 (hereinafter referred to as the Respondent) in this appeal was made absolute by P. K. Banerjee J.

(2.) The Respondent is admittedly the owner of premises No.1/171, Gariahat Road, South, Jodhpur Park, Calcutta-31 which is contiguous to that of the appellant. In or about June 1973 the appellant started construction of masonry work on the southern portion of her premises and more particularly in the back space which was alleged to be not wider than 10 ft. at any point. Since the Respondent found that there was no scope for taking average for the purpose of determining the width of the open space as contemplated in proviso (a) to sub-Rule (2) of Rule 33 of Schedule XVI of the Calcutta Municipal Act (hereinafter referred to as the said Act), which is to the following effect: R. 33 (1). . . . . (2) Every such courtyard and open space shall form part of the site of the building, shall be open to the sky throughout its entire area, and shall be kept accessible for the purpose of cleansing; and no structure shall be erected within or above, or so as to project over, the same : Provided that - (c) a one-seated or two-seated connected privy or a connected privy with a bathroom attached thereto or two connected privies, not exceeding forty square feet in floor area in the aggregate, exclusive of walls may be erected in the open space left under rule 30, sub-rule (2) or rule 31, if the average width of the open space is ten feet or more; (d) . . . . . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . . . . and in view of the said Rule, no structure whatsoever could be constructed in such back space and in fact such construction was being undertaken in violation of the same, so on or about June 28, 1973, he drew the attention of the City Architect, Corporation of Calcutta and requested him to pass necessary orders for stopping such unauthorized and illegal construction. It is an admitted fact that in reply thereto, the Respondent received a letter dated July 17, 1973 from the District Building Surveyor concerned intimating that the construction would be checked when the sanctioned plan would be available. The Respondent contended the said reply to be vague, illusory and purposeful and furthermore the same was intended to help the appellant to continue with and complete the construction. It also appears from the records that several representations were made thereafter, requesting the authorities concerned to take necessary steps for stopping the said construction and ultimately on or about August 24, 1973, he was informed that constructions were done in deviation from the sanctioned plan for which action under S. 416 of the said Act has already been taken. The Respondent was further informed that the appellant had already submitted a plan for regularizing the deviation.

(3.) The Respondent has alleged that for some time the appellant had kept the construction works suspended. But thereafter and as soon as he started the work of construction, he made further representations to the authorities concerned and on that he was informed that the party having filed a fresh plan removing the deviations, necessary sanction to the construction has been accorded subject to payment of necessary fees of the Corporation of Calcutta. The said communication at Annexure "D" to the petition was dated September 20, 1973. Thereafter, the Respondent after making some futile representations moved this Court on October 1, 1973 and obtained the connected Rule impeaching the said order in Annexure "D". It may be mentioned that the validity of the sanction in question was not challenged. In the petition it was also alleged that the Municipal authorities did not take any steps in respect of the construction of the W.C. in the back space made in violation of Rule 33(2)(a) of Schedule XVI as aforesaid.