A petitioner cannot enforce his right in a proceeding in violation of statutory provisions.

Rabin Bhattacharyya, J.

The Coastal Roadways Ltd. initiated a writ application abreast of a good number of reliefs which included amongst others an order for injunction for effecting reconstruction /repairing of business premises No. 1/1, Camac Street which suffered damage and endangered by the illegal activities of the hoodlums in the locale. The petitioner forming a group of Industries sought for beautification of the office and the adjoining area which generated much dispute since the applications invited for the appointment of staffs and the assistant could not be accelerated. The petitioner resorted to a proceeding u/s. 144 Cr. PC. before the Ld. Executive Magistrate to prevent the breach of peace and for a direction on the O.C., P.S. Park Street, to provide a gross and ingress to the business premises.

2. The petitioner rushed to the Writ Court where the Ld. Trial Judge appointed a Special Officer and accorded interim order in terms of prayers (i), (j), & (k), of the petition. The repair works for the damage occurred to the premises was, however, granted.

3. In view of the urgency, Rule 27 of the writ Rule was not animated for dispensation of justice. The copy of the application was directed to be served upon all the respondents within one week from the date.

4. The respondent, the CMC, since caught up in the crisis for the order passed by the Ld. Trial Judge stirred a petition to vacate the order dated 23.4.96, preeminently founded on illegal construction in the basement area and also at the second floor consequent upon an inspection held by the CMC. The writ petitioner, as alleged, shut out further inspection of the premises to the respondent no. 6 in respect of other portion kept under lock and key. The writ petitioner, since put in unauthorised construction, for which, recourse was taken to provision of s. 400(8) of the CMC, Act, 1980. In consequence, 3,000 sq. ft. suffered demolition but restored for the order complained of which became all sore in the litigation.

5. The respondent No. 6 sought for twin reliefs-one for vacating the interim order and other disposal of the writ petition in the alternative regarding the impugned construction.

6. The focal point for determination is as to whether the order dated 14th of May, 1997 passed by the subsequent Bench is liable to be vacated and the interim order dated 23rd of April, 1997 restored. Mr. Mukherjee and Mr. Kapur have argued with much emphasis that the unauthorised construction spoken to by the CMC is a misnomer in that the averments in Paragraph 19 of the petition of the CMC do not encompass any unauthorised construction, save the permissible construction.

7. The CMC Building Rules, 1990 fosters right to the writ petitioner to put in internal partition when it does not militate or infringe any of the provisions of the Act or the Rules. The Ld. Counsel have made Rule 3(2) of the said Rules as the spring board to secure relief. The above, according to the Ld. Counsel for the writ petitioner expels the story of illegal or unauthorised construction. The internal partition, as contended by the Ld. Counsel for the writ petitioner does not invite any sanction plan, which has been insisted on by the CMC.

8. Mr. Roy, the Ld. Advocate, appearing with Mr. Behani, for the CMC has submitted that judicial protection was accorded to him by the order complained of to encourage the unauthorised construction as the action of the writ petitioner never comes within the fold of s. 390(h). The said section forbids conversion of the building into a stall, shop, office warehouse or godown, workshop, factory or garage, any building not originally constructed for use as such or to convert any building constructed for such purpose by sub-division or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages.

9. In the advent of s. 390(h) of the CMC Act, there is no slender material to suggest about the bona fide of the claim