SHYAMLAL AGARWALLA Vs. ASHIM BURMAN

JUDGEMENT

(1.) We are being called upon to deal with a peculiar case wherein the alleged obligation of the appellant to pay consolidated rate of tax in terms of section 170 read with section 193 and other provisions contained in Chapter XII of the Calcutta Municipal Corporation Act, 1980 (hereinafter to be referred to as the Act) is the subject matter of a dispute between the parties. This appeal is directed against the order dated 30th October, 1998 passed by the IXth Bench of the learned City Civil Court at Calcutta whereby the application filed by the appellant under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for grant of temporary injunction was disallowed by the learned court below and accordingly the prayer of the appellant for injunction was refused.

(2.) The appellant had filed the aforesaid application for temporary injunction in a civil suit wherein he had challenged the power, right, authority and jurisdiction of the respondents in levying and demanding from the appellant the aforesaid consolidated rate of tax under the Act. When we observed in the opening part of their Judgment that we have to decide this case based on some peculiar circumstances, we are referring to spate of litigation between the parties with respect to a Fourteen storyed building in the City of Calcutta which was constructed wholly illegally and totally unauthorised by the appellant. Right from the very inception of the construction of the building, floor by floor, level by level, when the Respondent Corporation had been objecting to the same by passing demolition orders, one after another, but on one pretext or the other, on one ground or the other, these demolition orders were not being allowed to be implemented, mostly through the assistance of the courts by obtaining one order or the other, from the lowest civil courts upwards. Ultimately this litigation as far as the appellant is concerned, came to an end by the passing of the order by the Supreme Court in 1983 whereby for the last time, the special leave petition filed by the appellant against the Division Bench Order of this Court was dismissed and the Corporation was directed to demolish the topmost four floors of the building in question. It was also ordered by the apex court on 28.2.83 that the tenants in occupation of the building would stop paying rent to the appellant and would in stead deposit the rent before the Registrar (Appellant Side) of this court. After February 1983, the appellant stopped receiving any rent from his tenants since the tenants started depositing the same with the Registrar (Appellant Side) of this court. After the special leave petition of the appellant had been dismissed by the Supreme Court, the tenants in occupation of the building started their own round of litigation. But they have failed before the Division Bench of this court also preferred a Special Leave Petition in the Supreme Court, which was finally dismissed on 20.8.96. Their Lordships of the Supreme Court, while dismissing Civil Appeal No. 6416 of 1983 arising out of the aforesaid Special Leave Petition filed by the tenants, clearly, categorically and unequivocally observed and held that the appellant originally and the tenants thereafter had abused the process of the court and by such gross abuse, had obtained orders stalling the demolition work for a long time and that the Supreme Court had been very indulgent to the appellant and later on to the tenants. Produced herein below are the most pertinent observations to that effect contained in the judgment-dated 20.8.96:

(3.) After this having noticed the fact about the deficiencies in the building and its construction quality and having entrusted the work of assessment to Dr. K.K. Banerjee, the apex court referred to the observations of Dr. Banerjee. The relevant extract whereof we quote herein under: