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IN THE HIGH COURT AT CALCUTTA
I.P. MUKERJI, J.
BHASKAR BASU - Petitioner
Versus
KOLKATA MUNICIPAL CORPORATION AND OTHERS - Respondents
W.P. NO. 1266 OF 2014
Decided On : 06-01-2015
BUILDING PLAN - SANCTION - KOLKATA MUNICIPAL CORPORATION ACT, 1980 - SECTION 397 - The court held that the issue of whether a building plan is legal or illegal is a highly disputed question of fact and referred the matter to the Commissioner under section 397 of the Kolkata Municipal Corporation Act, 1980 for consideration and passing of a reasoned order after hearing all interested parties.
Fact of the Case:
The petitioner challenged the sanction of a building plan by the Kolkata Municipal Corporation, alleging that it violated the Kolkata Municipal Corporation Building Rules, 2009, and that the frontage and front open space were less than what was required under the rules.
Finding of the Court:
The court found that the issue of whether the building plan was legal or illegal was a highly disputed question of fact and that it was not in a position to make any finding of fact with regard to the allegations contained in the petition.
Issues: 1. Whether the building plan was sanctioned in violation of the Kolkata Municipal Corporation Building Rules, 2009? 2. Whether the court could annul the building plan sanctioned?
Ratio Decidendi: 1. The court held that the issue of whether a building plan is legal or illegal is a highly disputed question of fact and that it was not in a position to make any finding of fact with regard to the allegations contained in the petition. 2. The court held that section 397 of the Kolkata Municipal Corporation Act, 1980 vests the Commissioner with a discretionary power to pass any order in respect of a plan and that the Commissioner should exercise or refuse to exercise power as the case may be by a reasoned order, upon hearing all the interested parties.
Final Decision: The court referred the matter to the Commissioner under section 397 of the Kolkata Municipal Corporation Act, 1980 for consideration and passing of a reasoned order after hearing all interested parties.
By the order dated 26th September, 2014 in WP No.927 of 2014 this court had extended the time for Kolkata Municipal Corporation to take a decision whether premises no.121/1C, Bidhan Sarani, Kolkata-700004 should be declared as a heritage building or not. Time was given to them till 26th October, 2014 by the said order. They did nothing. That occasioned the passing of the order dated 3rd November, 2014 in a subsequent writ application [T.No.310 of 2014]. Time was extended till 15th December, 2014.
2. Appeals were preferred before the Appellate Court against both these orders. By the order dated 10th December, 2014 the order dated 26th September, 2014 was sustained. However, by another order passed on the same day the order of 3rd November, 2014 was set aside.
3. The effect of the orders of the Appeal court, to my mind is that the issue regarding granting of further time to the Heritage Commission to take a decision whether to declare the subject building as a heritage building or not, is closed at least before this court. This is so because the Appellate court did not appreciate the granting of further time to Kolkata Municipal Corporation after 26th October, 2014 to make the said declaration. Hence, my order dated 3rd November, 2014 was set aside.
4. Now, comes the point raised in this writ application.
5. It is said that the building plan has been sanctioned in violation of the Kolkata Municipal Corporation Building Rules, 2009. The frontage is less than what it ought to be under the rules. Front open space of 2 mt. ought to be kept whereas in the plan the front open space is shown as only 1.2 mt. Hence, this court should annul the building plan sanctioned.
6. Mr. S.N. Mookerji, learned senior advocate for the private respondents submitted, by showing me the first order dated 26th September, 2014 and the connected writ application that allegations had been made therein regarding illegal construction. Those allegations were different from the allegations made in this writ. He stressed on the fact that the court did not pass any order with regard to the alleged illegal construction and did not reserve any liberty, by the order dated 26th September, 2014, to the petitioner, to urge the question of sanction in a subsequent writ application. Such liberty was granted by the order dated 3rd November, 2014 but it was set aside on appeal. Secondly, the writ petitioner has been taking different grounds regarding illegal construction at different points of time. Hence, the writ application should not be entertained. He also argued that the order dated 26th September, 2014 acted as constructive res judicata on the principle that an order prayed for but not passed is deemed to have been refused.
7. As far as the heritage part is concerned, I reiterate that the issue is closed for the reasons given by me above. Mr. Basu, learned senior advocate for the petitioner does not even urge the issue.
8. But as far as the illegal construction part is concerned, it appears that the issue has not even been considered by the court. Now, if an issue has been considered by the court and the order is silent regarding that issue, it can be said that the order had been prayed for and refused. The principles of constructive res judicata could be applied in such a case. But if an issue has not been dealt with by the court, that issue cannot be closed on the ground of res judicata, actual or constructive. It can be closed on other grounds like abandonment of the cause of action without leave of the court to file a fresh action in respect of the same but certainly not res judicata. This is so because there is no adjudication at all. It is true that when the order dated 26th September, 2014 was passed, the petitioner did not seek leave of the court to urge the point of illegal construction in a subsequent proceeding.
9. However, I am not minded to defeat a substantial claim on such technical points. It appears that such an omission was by sheer inadvertence o
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