HARISH TANDON, J. - (1.) The petitioner nos. 1 and 2 are the partners of M/s Jaiguru Associates and took the tenancy in the name of the said partnership firm of the Northern Block, 3rd Floor at Premise No. 7, Red Cross Place, Kolkata - 700 001 on the basis of an agreement of tenancy executed on 23rd February, 2016. One of the salient terms and conditions embodied in the said tenancy agreement is that the said partnership firm shall be entitled to sub divide the portions by making temporary wooden partition walls into small cubicles to induct sub-tenants to be members of the legal profession, chartered accountants and the professional engineers. The partnership firm decided to commence execution of work by erecting the internal wooden partition walls and repair the existing wooden mezzanine floor and appointed the contractor for such purposes. The contractor advised that the existing wooden mezzanine floor requires to be replaced as it would be used for storage purposes for which no prior sanction of the building plan or the building permit is required from the Kolkata Municipal Corporation. However, the partnership firm thereafter thought it fit to seek permission for such repairs and caused letters dated 04.04.2016 to the Executive Engineer (Borough -V), Director General (Building Department of the Kolkata Municipal Corporation) and the Officer-in-Charge, Hare Street Police Station. Since no response were made to the said letter, the partnership firm ensued the aforesaid works and completed in substantial degree. In the first week of June, 2016 the police officials from the Hare Street Police Station visited the site and stopped the work as those are unauthorized.
(2.) Subsequently, an F.I.R was lodged on 16th May, 2016 by an Assistant Engineer (Civil), Building Department of the KMC under Section 401A of the Kolkata Municipal Corporation Act, 1980 and a criminal proceeding was initiated before the Civil Municipal Magistrate, Kolkata. The petitioners, against whom the F.I.R was lodged, surrendered before the Municipal Magistrate and were enlarged on bail by an order dated 7th June, 2016. The copy of the F.I.R, which was subsequently supplied to the petitioners revealed that such criminal proceeding was initiated alleging the unauthorized construction of wooden mezzanine floor and partition wall on the northern portion of the 3rd floor at the said premises without obtaining any sanction of the building plan and the same is also in contravention to the said Act and Rules framed thereunder and may cause danger to the human lives because the building may collapse. It was further transpired that the notice under Section 401 of the said Act was also issued by Kolkata Municipal Corporation and stated to have been served.
(3.) Since, the said work was stopped because of the filing of the F.I.R and the initiation of the criminal proceeding as well as alleged issuance of a notice under Section 401 of the Act, the petitioner challenged the notice of stop work in the instant Writ Petition not only on the ground that it was never served upon them but also that the execution of repair work do not come within the expression "to erect a building" defined under Section 390(1) of the Act and therefor it does not contravene any of the provision of the said Act nor the Rules framed therein.;