Calcutta High Court
Divine Nursing Home Pvt. Ltd. & Anr vs The Kolkata Municipal Corporation & Ors on 21 June, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray, Harish Tandon
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G. A. No.1895 of 2010
A.P.O. No.245 of 2010
W. P. No.639 of 2010
Divine Nursing Home Pvt. Ltd. & Anr.
Versus
The Kolkata Municipal Corporation & Ors.
Mr. Alok Ghosh, Adv. with
Mr. Arindam Banerjee, Adv.
Mr. Arijit Dey, Adv.
..for the appellants
Mr. L. C. Behani, Sr. Adv. with
Ms. Arpita Roy, Adv.
..for the KMC
BEFORE :
The Hon'ble Justice Pratap Kumar Ray
And
The Hon'ble Justice Harish Tandon
__________________________________________________________________
Date: 21st June, 2010
__________________________________________________________________
In view of the very nature of the order impugned before us,
while disposing of the stay application, we are of the view that both
the stay application and the appeal could be disposed of by
analogous hearing.
2
Since all parties are appearing through learned Advocates
before us, formal service of notice of appeal and all other formalities
stands dispensed with. The appeal is treated as on day's list and
taken up for final hearing.
The impugned order under challenge reads such:
"The Court: The subject matter of challenge in this writ
petition is a communication dated 16th April, 2010. The only
grievance raised before this Court by the writ petitioner on the
earlier occasion was that the speaking order passed by the Director
General (Building) II was not disclosed to the writ petitioner.
Accordingly an order dated 22nd April, 2010 was passed directing
the Corporation authorities to furnish a copy of the speaking order.
That direction has duly been complied with. A copy has also been
given to Court which is kept on record. From the copy of the order it
appears that the speaking order passed by the Director General-II
on 26th February, 2010 was as follows:
"A FOUR STORIED BUILDING HAS BEEN ERECTED
AT THE CAPTIONED PREMISES IN DEVIATION FROM THE
BUILDING PERMIT NO.2009030039 DATED 17/07/2009.
THE P.R. SHALL DEMOLISH THE PORTION OF THE
BUILDING CONSTRUCTED ENCROACHING THE
SANCTIONED MANDATORY REAR OPEN SPACE. THE P.R.
SHALL ALSO ERECT THE STAIRCASE LEADING FROM
THE GROUND FLOOR TO THE ROOF IN THE SANCTIONED
POSITION."
Mr. Banerjee, learned Advocate appearing for the
petitioner submitted that this cannot be a speaking order. I am
unable to accept this submission. This, according to me, is, in fact a
speaking order. The person responsible was directed to demolish
3
because the building was erected in deviation from the building
permit No.2009030039 dated 17th July, 2009. The reason for
demolition has clearly been indicated. Therefore, this amounts to a
reasoned order as also a speaking order.
This writ petition is, therefore, dismissed. There shall,
however, be no order as to costs.
Urgent certified photostat copy of this order, if applied for,
be given to the parties subject to compliance with all requisite
formalities."
It is the grievance of the appellants before us that in the writ
application the subject matter of challenge was not the speaking
order which has been quoted by the Learned Trial Judge with the
findings and observations that the speaking order was not vitiated
even by applying "the principle of speaking order" in view of the fact
that proper reasoning was made in the order itself. The prayer of
the writ application reads such:
"a) Leave be given to move the instant application ex parte and
unlisted after dispensing with the requirement of prior service as
contemplated under Rule 26 of the Writ Rules framed by this
Hon'ble Court;
b) A writ of in the nature of Mandamus and/or order or orders
and/or direction or direction of like nature commanding the
respondents, particularly the respondent No.4 to cancel, rescind
and revoke the purported Memo bearing No.B/332/III/2009-10 dated 13th January, 2010 issued by the respondent No.4 being Annexure P-3 hereto.
4c) A writ of/in the nature of Mandamus and/or order or orders and/or direction or direction of like nature commanding the respondents to furnish a copy of the speaking order, if any, allegedly passed by the respondent no.3 or any other functionary in terms of the order dated 1st December, 2009 made by this Hon'ble Court in W. P. No.20447 (W) of 2009 (Sandhya Rani Saha & Anr. Vs. The Kolkata Municipal Corporation & Ors.);
d) A writ of/in the nature of Mandamus and/or order or orders and/or direction or direction of like nature commanding the respondents to forbear from demolishing any part or portion of the premises No.41/1A, Abinash Chandra Banerjee Lane, Kolkata - 700 010, before efflux of thirty days from the date of communication of a copy of the order of demolition, if any, made by the respondent No.3 or any other functionary of the respondent no.1 in terms of the order dated 1st December, 2009 made by this Hon'ble Court in W. P. No.20447 (W) of 2009(Sandhya Rani Saha & Anr. Vs. The Kolkata Municipal Corporation & Ors.);
e) A writ of/in the nature of Certiorari and/or order or orders and/or direction or direction of like nature commanding the respondents to certify and transmit the records relating to the instant case before this Hon'ble Court and upon perusal thereof to quash and/or set aside the relevant parts or portions thereof so as to render conscionable justice;
f) Rule NISI in terms of prayers (b), (c), (d) and (e) above;
g) Rule NISI may be made absolute if no cause or insufficient cause is shown by the respondents;
h) An interim order of injunction restraining the respondents and/or their men, agents and sub-ordinates from executing or giving any effect or further effect to any order of demolition, if any, made by the respondent no.3 or any other functionary of the respondent no.1 in terms of the order dated 1st December, 2009 made by this Hon'ble Court in W. P. No.20447 (W) of 2009(Sandhya Rani Saha & 5 Anr. Vs. The Kolkata Municipal Corporation & Ors.) till the disposal of this application.
i) An interim order of injunction restraining the respondents and/or their men, agents and sub-ordinates from demolishing any portion of premises No.41/1A, Abinash Chandra Banerjee Lane, Kolkata 700 010 till the disposal of this application;
j) Ad-interim orders in terms of prayers (h) and (i) above;
k) Costs including full Advocates' fees be borne by the respondents;
l) Such further and/or other order or orders be made and/or direction or directions be issued as to this Hon'ble Court may seem fit and proper. "
On a bare reading of the prayers of the writ application, it appears that the present appellant moved the writ application seeking a writ of mandamus in terms of prayer (c) directing the Corporation to communicate the order passed by them pursuance to the direction of the Court passed earlier on 1st December, 2009 in W. P. No.20447 (W) of 2009. In pursuance of the order dated 1st December, 2009 aforesaid, the Director General (Building) II, Kolkata passed an order dated 26th February of 2010 and this order was submitted before the Learned Trial Judge when the writ application was taken up for hearing. On considering the speaking order passed by the Director General (Building) II on 26th February, 2010 as an order impugned in the writ application, the learned 6 Trial Judge passed necessary order for which grievance has been raised by the learned Advocate for the appellants.
Having regard to the factual matrix of the writ application and prayers made therein, we are of the view that as the order passed on 26th February, 2010 by Director General (Building) II was not at all the subject matter of challenge in the writ application, there was no necessity of making any finding and observation touching the legality and validity of the order passed by the Director General (Building) II directing the present respondents to demolish certain portion of the building which allegedly was unauthorized construction. By adjudicating legality and validity of the order of Director General (Building) II dated 26th February, 2010 practically the writ petitioners-appellants have been deprived to assail the said order by filing appropriate application/statutory appeal taking different grounds and points available to them. In view of such, there was breach of principle of natural justice as well as breach of right to prefer statutory appeal to entertain the said order though it was not challenged in the writ. Since in prayer (c) of the writ application, the appellants prayed for communication of the order and since the said order was communicated and submitted before the Learned Trial Judge at the time of hearing, we are of the view 7 that the writ application could have been disposed of with the finding that "the Director General (Building) II has already passed an order as such there is no necessity to adjudicate anything by passing an order of writ of mandamus to Director General (Building) II to communicate his decision dated 26th February, 2010". Since the learned Trial Judge has gone further to test the legality and validity of the said order under the anvil of speaking order, we of the view that the impugned order is not sustainable.
The impugned order is, accordingly, set aside and quashed. The writ application is also taken by us for hearing along with the present appeal by consent of the parties.
Having regard to the fact that a decision already passed by Director General (Building) II of Kolkata Municipal Corporation on 26th February, 2010 has been communicated, there is no necessity for adjudication of writ application further. The order/decision of Director General (Building) II dated 26th February, 2010 has already been served to the writ petitioners/appellants.
Considering that the writ application stands disposed of by the finding that there is no necessity to adjudicate the issue as raised in the writ application in view of communication of the order passed by the Director General (Building) II on 26th February, 2010. 8
The writ application, appeal and stay application all stand disposed of accordingly.
It is made clear that we have not gone into the merits of the legality and validity of the decision of Director General (Building) II. The writ petitioners-appellants are at liberty to take appropriate steps in accordance with law.
There will be no order as to costs.
Urgent certified photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
( Pratap Kumar Ray, J. ) ( Harish Tandon, J. ) AKGoswami