Mukherji, J. - (1.) The appellants who are the writ petitioners impugn in the present appeal a judgment and order dated 26th April, 1990 passed by Monoranjan Mullick, J., where by the writ application brought by them stood disposed of without any order as to costs with an observation that the writ petition complaining against the removal of the stair case encroaching on the footpath In front of their book shop situated at 22/S, Nalini Ranjan Avenue, Block-A, New Alipore, overlooking the lawn over which they had a right of egress and ingress having already been effected by the Calcutta Municipal Corporation, they may "seek remedy if they find that the Corporation had dons anything illegal". Sines the Calcutta Municipal Corporation could remove any obstruction on the public pathway or footpath and there was no lack of jurisdiction in the Corporation Authority, the only liberty the petitioners were granted in the four corners of the writ application was to the effect that in future If such encroachment is made, the Corporation will be at liberty to take appropriate step, but this will not stand in the way of he petitioners to make appropriate representation before the Corporation Authority for appropriate relief and if such an application is filed, the Corporation shall consider it on merits.
(2.) The petitioners were tenants under their erstwhile landlady Mrs Renuka Sitkar, since deceased, who entered into an agreement on February 9, 1977 granting the petitioners liberty to have the light to install a removable steel stair case and a right to cover the entire portion of their varandah' by a wooden thin wall The tenants were gaoled the right to use 'varandah' for business purpose and for no other purpose whatsoever. The tenants were conferred en easement to use the lawn in front of the 'varandah' so long as the tenancy continued. At the behest of the landlords who were added as parties respondents in the present appeal and who abortively tried to get themselves impleaded in the writ court before the learned Single Judge, the Corporation admittedly without any notice to the tenants writ petitioners purportedly exercising its powers under Section 372 of the Calcutta Municipal Corporation Act, 1980 removed the stair case which encroached on the footpath beyond the boundary wall, The tenants writ petitioners who are the appellants before us contend that they had always been using the stair case for reaching their book shop on the 'varandah' itself across the lawn through which the customers in the book shop did come and go and the stair case had its landing on the footpath itself. Even though the tenants writ petitioner, contend that the boundary limit of the premises did extend over a part of the footpath and beyond the boundary wall or fence, and drew our attention to some pegs adjoining to the footpath beyond the boundary wall which they claimed to be the limits of boundary, the owners landlords disclaim the same. In the photographs that were used in the pleadings we have found the boundary pillers delimiting the boundary tine which were apparently beyond the boundary wall, which by their very existence seem to negate the claim of assertion as made by the writ petitioners. Be that as it may, even if for the sake argument it is assumed shat the stair case did net land on the footpath but was confined within the boundary limit of the disputed premises in which the tenants had right of easement oi some such rights conferred by the erstwhile landlady, it is beyond oar comprehension as lo tow such a disputed question of fact could be agitated within the limited framework of the Constitutional writ Court's jurisdiction.
(3.) Mr. Mukherjee appearing for the writ petitioners appellants contended thar the rights of the Corporation, even if they are conferred by the statute under Section 372 of the Calcutta Municipal Corporation Act, 1980, left a discretion with the Municipal Commissioner to cause the removal of the stair case. Mr. Mukherjee further contended that since the stair case was a pre-1984 structure, the only power left with the Calcutta Municipal Corporation was to exercise the power of removal of the existing structure or fixture under Section 373 where the Municipal Commissioner may, by a written notice, require the owner or the occupier to remove such a structure or fixture or stair case. There is a prohibition for such structures or fixtures causing obstruction in the street to be erected at all in Section 373 of the Act but then Mr. Mukherjee contended that the structure was a pre 1984 one which was already so existing structure prior to the Calcutta Municipal Corporation Act, 1980 coming into force and hence removal only by a written notice conforming to the principle of audi alteram partem In consequence to the principle of natural justice, was a must Mr. Mukherjee further contended that the law on the point not having been followed properly and squarely in this regard and a status quo order having already been passed by a court of competent jurisdiction in between the parties and the stair esse haying already been rebuilt and set in its former position, a subsequent act of demolition and/or removal by the Calcutta Municipal Corporation is not at all envisaged in law. On 14.2.90 the Corporation without any notice aid without any written order came over to the spot and damaged a portion of the stair case on the road side of the boundary wall. The present owners on 19.2.90 filed a suit for recovery of possession against the writ petitioners alleging trespass and praying as well an injunction restraining the writ petitioners from demolishing any portion of the boundary wall and also from causing any interference or obstruction in raising the height of the existing boundary wall of the suit premises in Title Suit No 13 of 1990 before the Assistant District Judge, First Court, Alipore. On February 22, 1990 the Court passed an interim order directing maintenance of status quo by both the parties till 19.3.90 and restrained the petitioners from committing any trespass, civil or criminal. The present petitioners filed an application for injunction against the plaintiffs (added respondents) on 19.3.90. On the same day the added respondents plaintiffs in the suit sought for a permission to raise the height of boundary wall upto 10 feel and for extension of the interim order by filing a separate application but the court did not pass any order on that date. On 19 4 90 which was the date fixed for hearing both the applications, the presiding Judge was absent and the hearing did not take place. The plaintiffs added respondents filed an application before the learned District Judge under Section 24 of the Code of Civil Procedure for transfer of the case from the hands of the Assistant District Judge and got all further proceedings stayed In the trial Court. It was only on 11th March, 1991 that the learned Assistant District judge received a copy of the order of the learned District Judge inviting his comments even though e copy of the application under Section 24 of the Code of Civil Procedure was not forwarded to him. In order to check mate the present petitioners the added respondents plaintiffs in the Title Suit went before the Executive Magistrate on 3.4.91 and got as order restraining the present petitions from causing any obstruction to their efforts in fairing the bright of the boundary wall with police help without serving any notice on the present petitioners. On and from 7th April, 1991 the raising of the boundary wall by the added respondents was started. Curiously enough on the 18th April, 1991 the added respondents plaintiffs in the suit applied before the Calcutta Municipal Corporation for raising the height of the boundary wall and permission was accorded to then within two days from the date of their application. On 24th April, 1991 the present petitioners as the tenants filed an application for mandatory injunction and for restoration of status quo in respect of the height of the boundary wall. On 25th June, 1991 the trial Court on being Informed about the withdrawal of the Section 24 of Civil Procedure Code proceedings directed the restoration of status quo ante holding inter alla that the height hat bean raised by the plaintiffs (added respondents herein) by making an abuse of the process of law. On 9.7.91 the added respondents preferred an appeal being Misc. Appeal No. 226 of 1991 before the learned District Judge and obtained stay of the order dated 25.6.91 for 15 days. The present petitioners were givers liberty to file objection. On 24.7.91 the learned District Judge, however, declined to grant stay.;