BIMAL CHANDRA BASAK, J. - (1.) This appeal is connected with two other appeals, one of which we have disposed of on 18th March, 1987 in F.M.A.T. No. 652 of 1980 (Cachar Plywood Ltd. v. Corporation of Calcutta) and the other, today in F.M.A.T. 374 of 1979 (Corporation of Calcutta v. Cachar Plywood Ltd.).
(2.) The facts would also appear from the judgement delivered on the 18th March, 1987. What has happened in this case is that this writ petition was filed by the appellant herein praying that the writ petitioners are the owners of the premises No. 37/1/1, Khengraputty Street, now known as Purushottam Roy Street, Calcutta. This premises is on the north of the premises No. P/4, New Howrah Bridge Approach Road, known as Nandaram Market (hereinafter referred to as the said premises). The said premises are the subject matter of these three appeals. In the writ petition the petitioner prayed for : (a) A writ of and/or an order and/or direction in the nature of Mandamus do issue commanding and directing the respondents Nos. 1 to 4 and each one of them. (i) to take action and pass appropriate orders for demolition under S.414 of the said Act; (ii) to take appropriate action for the enforcement of the action which was taken under S.416 of the said Act to stop the continuance of the unlawful work; (iii) to appoint appropriate police or Municipal Officer to watch the said premises in order to prevent continuance of the said unlawful work; (b) A Rule Nisi in terms of prayer (a) above; (c) An injunction restraining the respondent No. 4 whether by itself or its servants or agents or otherwise however from carrying on or continuing any construction of any kind at, in or about the said building situated at premises No. P/4, New Howrah Bridge Approach Road, Calcutta; (d) The Officer-in-Charge, Burrabazar Police Station be directed to take appropriate steps to ensure that no construction of any kind be carried on it, in or about the said premises; (e) A Commissioner be appointed to carry out an inspection of the said construction and such a report to this Hon'ble Court; (f) An interim order in terms of prayers (c), (d) and (e) above; (g) Costs of an incidental to this application be paid by the respondents; (h) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.
(3.) The allegation of the petitioner was to the following effect :- "The said strip of land being premises No. 37/1/1, Purushottam Roy Street, Calcutta, was all along accessible only from the said Premises No. 47. The petitioner has often described the said strip of land as being a part of No. 47, Purushottam Roy Street, Calcutta." "At all material times the respondent No. 4 was and still is the owner of a multi-storeyed building situated at that premises No. P/4, New Howrah Bridge Approach Road situated in the immediate south of the said strip of land. So far as the petitioner is aware one Nandram Agarwalla purchased the said premises No. P/4, New Howrah Bridge Approach Road, Calcutta from the Calcutta Improvement Trust in 1945. The respondent No. 4 was incorporated sometime in 1966 by Sm. Kusum Agarwalla and other relatives and friends of Jhabarmull Agarwalla. The said building at premises No. P/4, New Howrah Bridge Approach Road is known as Nandram Market. The lay out of the area under construction would appear from a rough sketch of the area which is annexed hereto as a part of this petition and marked 'A'." "The said strip of land is only accessible from the petitioner's said premises No. 47, Purushottam Roy Street through a gate and passage on the ground floor of the said premises of the petitioner. Although in the records of the respondent No. 1 there are two different numbers the petitioner's premises and the said strip of land are jointly known as No. 47, Purshottam Roy Street. The eastern portion of the said strip of land on which a small godown is constructed has been let out by the petitioner to one Agarwal Yarn Processors and the petitioner is realising rent in respect of the same. The western portion of the said strip of land has also been let out by the petitioner to one Satya Narayan. Mahato and the petitioner is also realising rent from him. The said two tenants of the petitioner are now in occupation of the said strip of land." "The petitioner is the recorded owner of both the said premises in the records of the respondent No. 1 and the tax bills of the respondent No. 1 are recorded in the name of the petitioner. One of such tax bills is annexed hereto as a part of this petition. The said strip of land measures 87 X 6' 1'." "Prior to the respondent No. 4 becoming the owner of the said building at No. P/4, New Howrah Bridge Approach Road, one Jagadamba Ltd. was the owner thereof. The said Jagadamba Ltd. duly recognised the ownership and title of the petitioner to the said premises No. 37/1/1, Purshottam Roy Street, which would clearly appear from two letters dated 4th Feb. 1954 and 13th June, 1957 of the said Jagadamba Ltd. copies whereof are annexed hereto as a part of this petition. The said strip of land in the said letters has been referred to as the strip of land passage." "The respondent No. 4 has also recognised the right and title of the petitioner over the said strip of land which would also clearly appear from a letter dated 29th Aug. 1970 of the respondent No. 4." "Schedule XVI of the Calcutta Municipal Act (hereinafter referred to as the said Act) lays down the rules and regulations in regard to the use of building sites and the execution of building work." "The respondent No. 4 have wrongfully and illegally carried out a construction of a multistoreyed building of 20 storeys at the said premises No. P/4, New Howrah Bridge Approach Road without leaving any rear open space as required right on the boundary of the said premises No. P/4, New Howrah Bridge Approach Road. Further the height of the said building also violates the said R.10." "The petitioner duly objected to the respondents Nos. 1, 2 and 3 in regard to violation of the said Rule by the respondent No. 4 in respect of premises No. P/4, New Howrah Bridge Approach Road, Calcutta. Copies of the letters of the petitioner dated 25th April, 1979, 14th May 1971 and 21st May 1971 are hereto annexed and marked with the letter "E". There were hearings of objection before the Commissioner, Corporation of Calcutta on diverse dates between 20th Jan. 1971 and 15th Sept. 1971 and the petitioner is informed that ultimately an order for demolition was passed but uptil now no action has been taken by the Commissioner, Corporation of Calcutta to effect the said demolition. The last of such objections was made by the petitioner by a letter dated 7th July, 1980. The Dist. Building Surveyor, District II-B replied to the letter stating that action had been taken under S.416 of the Calcutta Municipal Act, 1951 in respect of the work complained of and if the unauthorised works are not removed a demolition case under S.414 will be placed before the Commissioner in due course when the petitioner-company will be invited to attend. A copy of the said two letters are hereto annexed and marked with the letter "F". So far as the petitioner is aware no steps whatever have been taken and the petitioner has not so far been invited to attend before the Commissioner.";