- (1.) The affidavit-of-service filed by the petitioner be kept on record. The subject matter of challenge in the present writ petition is an order dated 28th December, 2018 passed by the respondent no. 2. Mr. Bihani, learned advocate appearing for the petitioner submits that the petitioner is one of the flat owners in the building at premises no. 6/2A, Creek Lane. The private respondent illegally obtained a sanction plan on 19th December, 2014 to raise construction on the roof of the building. Such fact was brought to the notice of the Kolkata Municipal Corporation (in short, KMC) authorities and accordingly a notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 (in short, KMC Act) was issued on 13th December, 2016. Aggrieved by the said notice the private respondent preferred a writ petition without impleading the petitioner. In the said writ petition an order was passed on 31st August, 2018 directing the KMC authorities to initiate proceedings under Section 397 of the KMC Act. Subsequent thereto, the petitioner came to learn that a final order has been passed in the said proceedings but no copy of the same was supplied to the petitioner and as such the petitioner submitted an application under the Right to Information Act , 2005 and, thereafter, a copy of the said order was supplied to the petitioner. The KMC authorities ought to have heard the petitioner prior to issuance of the impugned order.
(2.) Mr. Bose, learned advocate appearing for the private respondent no. 9 submits that the petitioner previously preferred a title suit and an injunction application filed in connection thereto was disposed of upon consent on 17th March, 2018. In view thereof, question of grant of any further opportunity of hearing to the petitioner prior to issuance of the order impugned in the present petition did not occasion. The original plan issued on 19th December, 2014 has been revalidated on 13th March, 2019. Mr. Banerjee, learned advocate appearing for KMC submits that in view of the order passed by the learned Civil Court in the injunction application there was no obligation on the part of the KMC authorities to grant any opportunity of hearing to the petitioner.
(3.) In reply, drawing the attention of this Court to the representations submitted by the petitioner, as annexed at pages 82 to 87 to the writ petition, Mr. Bihani submits that since the year 2016 the KMC authorities were aware as regards the objections raised by the petitioner pertaining to the concerned premises and in respect of the plan obtained by the private respondent. The roof falls within a common area and it cannot be segregated and no plan can be sanctioned in respect of a roof.;