Calcutta High Court (Appellete Side)
Navnirman Infracon Pvt. Ltd vs The Kolkata Municipal Corporation & Ors on 2 July, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
1
43 02.07. W.P. No.22695(W) of 2017
ns 2018
Navnirman Infracon Pvt. Ltd.
Versus
The Kolkata Municipal Corporation & Ors.
Mr. Arif Ali,
Mr. Md. Shrehabuddin ...... for the petitioner.
Mr. Alak Kr. Ghosh,
Mr. Gopal Ch. Das ... for KMC
Re: CAN No.3147 of 2018
This is an application for restoration.
Affidavit of service filed in court today be kept
with the record.
KMC is represented.
The causes shown in the application are
accepted as sufficient. The order of dismissal of the writ
petition dated May 15, 2018 is recalled.
WP No.22695(W) of 2017 is restored to its
original file and number.
CAN No.3147 of 2018 is disposed of.
No order as to costs.
By consent of the parties, WP No.22695(W) of
2017 is treated as on day's list and is taken up for
consideration.
Learned Advocate appearing for the petitioner
2
submits that, the corporation authorities are not granting
sanction of a building plan on the specious plea that, the
property is a thika tenancy. He submits that, such
declaration could not have been made as on the day of
the declaration when thika controller had no jurisdiction
to do so.
Learned Advocate appearing for the corporation
authorities submits that, there is a declaration of thika
tenancy. Unless such position is clarified, the issue of
grant of sanction of a building plan cannot be taken up.
The private respondents are represented.
There is an issue as to whether the property in respect of which the petitioner seeks grant of sanction of building plan is a thika tenancy or not. According to the petitioner, it is a question of law as on the date of the so- called declaration, thika controller had no jurisdiction.
Thika controller is not a party respondent. Learned Advocate for the petitioner submits that, he is neither a necessary nor a proper party as the issue of law involved in the present writ petition can be decided in his absence.
With respect, the issue is a mixed question of fact and law. The date on which the property was 3 declared to be a thika tenancy has to be looked at. The declaration is made by a thika controller. Such thika controller is, therefore, both necessary and property party in the present writ petition. It would be inappropriate to dispose of a writ petition requiring grant of sanction of a building plan when the property concerned is claimed to be a thika tenancy in absence of the thika controller.
WP No.22695(W) of 2017 is dismissed.
No order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. )