- (1.) Both the appeals have been directed against one and common judgment and order of the learned single Judge dated 24th February 2009 by which two writ petitions being No, 28375 (W) of 2006 and WP No. 4011 (W) of 2007 had been disposed of. The first mentioned writ petition was filed by the appellant herein while the second mentioned writ petition was filed by the respondent Nos.5 to 23 herein. The learned trial Judge by the said impugned judgment and order however did not grant desired relief to the appellant, while the above respondents have been granted relief to a great extent. It appears from records both the appeals have chequered history and without narrating the same it would be difficult to appreciate the problem posed before this Court. One M/s. Sridhar Housing and Consultant, a partnership firm, consisting of one Dibyendu Roy and one Subhendu Roy purchased a plot of land being Premises No. 20/3 Benaras Road, Salkia, Howrah - 6 (hereinafter referred to as the said premises) and thereafter got sanction to a Plan for erecting building on 27th December, 2001. The appellant is the owner of Premises No. 20/1 Benaras Road, Salkia, Howrah 6 which is on the same road. However the appellant's premises cannot be said to be an adjacent to the said premises for which building plan had been obtained. After obtaining sanction the said firm started construction of the building. The appellant had been running a factory, and complained to the Corporation that the said Partners, Dibyendu and Subhendu had been making unauthorized construction. Having found no response to his complaint he approached this Court by filing a writ petition being. W P No. 9603 (W) of 2002 which was disposed of by an order dated 16th July 2002 directing the Chief Architect of the Corporation to look into the matter. Pursuant to the said notice, the appropriate officials of the Building Department of the Howrah Municipal Corporation (hereinafter in short HMC) took steps and initiated demolition proceedings. Accordingly a show cause notice was issued as to why the unauthorized construction should not be demolished. Ultimately demolition order was passed on 3rd October 2002. Feeling aggrieved, Dibyendu and Subhendu moved this Court by filing a Writ Petition being No. 17632(W) of 2002 which was allowed by an order dated 15th July 2003 by which the show cause notice dated July 30th 2002 and the demolition order dated 3rd October 2002 were quashed. By this order HMC however was given liberty to proceed afresh in accordance with law. HMC being aggrieved by the said order of learned single Judge dated 15th July, 2003 preferred appeal and by an order dated 30th September 2004 on an application filed in the said appeal the Division Bench of this Court was pleased to stay operation of the order dated 15th July 2003 and at the same time HMC was restrained from demolishing the structure. Dibyendu and Subhendu were permitted to approach the Corporation for two purposes to seek regularization of the deviation and prepare a complete plan of demolition of the unauthorized construction which is not permissible to retain. The relevant portion of the order dated 15th July 2003 is as follows:- "The Corporation shall, before granting permission to the writ petitioners-respondents to retain the deviated portion, come to a specific finding that by the Act or Rules framed thereunder, it has power to do what the writ petitioners-respondents are seeking. Before any decision is taken to give permission to the writ petitioners-respondents to retain the deviated portion, a hearing should be given to the respondent No. 2 by the appropriate authority of the Corporation. To make it clear that we have not been able to locate any power of the Corporation to permit retention of a construction not permissible by the acts or the rules framed thereunder. But since we are not deciding the appeal we have not concluded the matter and, accordingly leave to the Corporation to locate such power within the act or the rules framed thereunder".
(2.) In terms of the order the Commissioner of the HMC heard Subhendu who represented the firm and the appellants on whose complaint the demolition proceeding had been initiated, and others, and then passed an order dated 22nd November 2004. The appellant being aggrieved by the said order filed a writ petition being the first one. During pendency of the first writ petition the appeal preferred by the HMC as above came up for final hearing on August 7, 2006 and the same was dismissed observing that in view of the decision of the Commissioner dated 22nd November, 2004 it had lost its utility.
(3.) Thereafter the appellant filed a writ being No. 28375 (W) of 2006 seeking mandamus commanding the HMC and its official to demolish unauthorized construction and to expunge the adverse observations made in the order of Commissioner dated 22nd November, 2004 wherein it was said that the appellant cannot be said to be an aggrieved person. Thereafter 19 petitioners who are said to be owners and/or occupants of number of fiats in the said building filed second mentioned writ petition being W.P. No. 4011(W) of 2007. By the said writ petition they also challenged the order dated 22nd November, 2004 passed by the Commissioner. After hearing both the writ petitions the learned trial Judge set aside the decision of the Commissioner dated 22nd November 2004 and directed the Commissioner to give a fresh hearing in the demolition proceeding to the writ petitioners in the second mentioned writ petition. The learned trial Judge kept all points open for decision of the Commissioner. Before the Writ Court the point of regularization did arise and this point was also kept open. It appears that after admission of the appeal the Commissioner in terms of the order of the learned trial Judge decided the matter afresh and observed construction made in, deviation to the plan as sanctioned was decided to be regularized on payment of fine. At this stage the appeal came up for hearing before us.;