Janah, J. - (1.) THIS appeal arises out of a judgment and order dated August 14, 1969, discharging the rule obtained by the appellant and the respondent No. 6 of the present appeal, under Article 226 of the Constitution of India. The appellant and the respondent No. 6 alleged that they were the recorded owners of premises Nos. 29-B and 29-C Gariahat Road, respectively, while the respondent No. 5 was the recorded owner of premises No. 14/A/1, Gariahat Road (hereinafter referred to as the disputed premises). Premises Nos. 29-B and 29-C Gariahat Road are to the adjacent north of the disputed premises belonging to the respondent No. 5. According to them the building on the disputed premises was a one-storied brick built structure till February, 1967, when they came to know that the respondent No. 5 was constructing the second and the third storey over the existing structure on the disputed premises. They alleged that the disputed premises abuts a common passage about 8' wide, and so according to the Building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951, the respondent No. 5 was entitled to have only a one storied house on the said plot of land. It was further alleged that the plan for the proposed construction sanctioned by the Corporation of Calcutta was in violation of Rules 3, 29, 30, 32, 33 and 50 of Schedule XVI of the Calcutta Municipal Act, 1951. On these allegations the appellant and the respondent No. 6 who were the petitioners before the Trial Court prayed for an order restraining the respondents, the Corporation of Calcutta, its officers, and the respondent No. 5 from giving effect to or from proceeding with the construction on the disputed premises in accordance with the sanctioned plan.
(2.) THE respondents Nos. 1 to 4 as well as the respondent No. 5 denied that the plan for the proposed construction on the disputed premises was sanctioned in violation of the rules, and asserted that the sanction accorded by the Corporation of Calcutta was perfectly legal and valid. THE respondent No. 5 further alleged that the application filed by the appellant and the respondent No. 6 under Article 226 of the Constitution was not a bona fide application, and she referred to certain facts in support of her said allegation. In the application under Article 226 of the Constitution the Commissioner of the Corporation of Calcutta was impleaded as the respondent No. 2. THE Commissioner was also impleaded in his personal capacity, and Shri R. K. Bhattacharyya who was the then Commissioner of the Corporation of Calcutta, was impleaded as respondent No. 3. While the matter was pending in the Trial Court Shri Priyo Guha was appointed as the Commissioner of the Corporation of Calcutta in place of Shri Bhattacharyya. By an order dated March 25, 1969, Shri Guha was substituted in place of Shri Bhattacharyya. When the Rule came up for hearing before the Trial Court on March 26, 1969, the parties agreed that in view of the nature of the dispute the matter should be referred to the respondent No. 3 and they further agreed that the decision of the respondent No. 3 would be binding upon them. Tile learned Judge in the Trial Court recorded the following order:-- "26-3-69. After the learned Advocates for either side were heard for sometime, both parties agreed that owing to the technical nature of the dispute involved in this case it would be better to have all the questions of dispute between the parties decided by the Commissioner of the Corporation of Calcutta, who is respondent No. 3, on the spot by an enquiry to be held in presence of both the parties on the 7th of April, 1969, and to submit his decision to this court by the 18th April, 1969. It is agreed between the parties that the decision of the Commissioner would be binding on both the parties." Thereafter the respondent No. 3 Shri Guha submitted a report on April 19, 1969, after making a local inspection, and the matter came up for consideration before the Trial Court on April 25, 1969. At the hearing on that day an objection was taken by the learned Advocate appearing for the appellant (petitioner No. 1) to the effect that as the matter had been referred to the Commissioner of the Corporation of Calcutta and as Shri Guha had ceased to be the Commissioner on account of a Chief Executive Officer being appointed in place of the Commissioner and Shri Guha being reverted to the post of Deputy Commissioner, his report should not be accepted and should not be considered by the Court. Learned Advocate appearing on behalf of the respondent No. 5, on the other hand, contended that all proceedings before the respondent No. 3 had been completed before he relinquished charge of his office as the Commissioner and only the submission of the report was pending. The learned Judge passed an order on that day to the effect that the respondent No. 3 would file his report and the parties would be at liberty to agitate at the final hearing of the rule the point as to whether the report of Shri Guha should be considered or not. Shri Guha submitted his report on April 28, 1969, and thereafter the rule came up for hearing on May 29, 1969. On that day learned Advocate for the appellant took an objection that the inspection was made by Shri Guha in the absence of the appellant or anybody on her behalf. The learned Judge upheld this objection and directed that Shri Guha would again visit the disputed premises and take fresh measurements in presence of the nominee of the appellant and would submit a supplementary report containing his findings on such fresh measurements being taken. In pursuance of the said order a fresh inspection was made of the disputed premises by Shri Guha on July 20, 1969, in the presence of several persons, one of whom was the husband of the appellant and the other was Shri Dinesh Chandra Banerjee, an ex-City Architect of the Corporation of Calcutta, who was engaged by the appellant. Shri Guha filed a supplementary report on July 24, 1969 and thereafter the Rule came up for final hearing on August 14, 1969, before D. Basu, J. The learned Judge accepted the report submitted by Shri Guha and negatived the contention of the appellant that as Shri Guha had ceased to be the Commissioner of the Corporation of Calcutta before he submitted his report that his report could not be considered by the Court. Relying upon the report submitted by respondent No. 3 the learned Judge came to the conclusion that there was no violation of the building Rules contained in Schedule XVI of the Calcutta Municipal Act, 1951. The learned Judge was also of the opinion that when the parties agreed to refer the dispute to the arbitration of the respondent No. 3 and agreed to accept the decision of the respondent No. 3 as binding between them they could not be permitted to resile from that position. Upon this view the learned Judge discharged the rule.
(3.) MR. Bankim Chandra Dutt,, learned Advocate appearing on behalf of the appellant at first canvassed before us the objection about the violation of the Building Rules with reference to all the Building Rules mentioned in the petition before the Trial Court, namely, rules 3, 29, 30, 32, 33 and 50 of Schedule XVI to the Calcutta Municipal Act, 1951. But ultimately MR. Dutt gave up his client's case with regard to the alleged violation of the rules, except Rule 3 which relates to the height upto which a building can be constructed.;