V.K.Gupta, J. - (1.) We are being called upon to deal with a peculiar case wherein the alleged obligation of the appellant to pay consolidated rate of tax in terms of section 170 read with section 193 and other provisions contained in Chapter XII of the Calcutta Municipal Corporation Act, 1980 (hereinafter to be referred to as the Act) is the subject matter of a dispute between the parties. This appeal is directed against the order dated 30th October, 1998 passed by the IXth Bench of the learned City Civil Court at Calcutta whereby the application filed by the appellant under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for grant of temporary injunction was disallowed by the learned court below and accordingly the prayer of the appellant for injunction was refused.
(2.) The appellant had filed the aforesaid application for temporary injunction in a civil suit wherein he had challenged the power, right, authority and jurisdiction of the respondents in levying and demanding from the appellant the aforesaid consolidated rate of tax under the Act. When we observed in the opening part of their Judgment that we have to decide this case based on some peculiar circumstances, we are referring to spate of litigation between the parties with respect to a Fourteen storyed building in the City of Calcutta which was constructed wholly illegally and totally unauthorised by the appellant. Right from the very inception of the construction of the building, floor by floor, level by level, when the Respondent Corporation had been objecting to the same by passing demolition orders, one after another, but on one pretext or the other, on one ground or the other, these demolition orders were not being allowed to be implemented, mostly through the assistance of the courts by obtaining one order or the other, from the lowest civil courts upwards. Ultimately this litigation as far as the appellant is concerned, came to an end by the passing of the order by the Supreme Court in 1983 whereby for the last time, the special leave petition filed by the appellant against the Division Bench Order of this Court was dismissed and the Corporation was directed to demolish the topmost four floors of the building in question. It was also ordered by the apex court on 28.2.83 that the tenants in occupation of the building would stop paying rent to the appellant and would in stead deposit the rent before the Registrar (Appellant Side) of this court. After February 1983, the appellant stopped receiving any rent from his tenants since the tenants started depositing the same with the Registrar (Appellant Side) of this court. After the special leave petition of the appellant had been dismissed by the Supreme Court, the tenants in occupation of the building started their own round of litigation. But they have failed before the Division Bench of this court also preferred a Special Leave Petition in the Supreme Court, which was finally dismissed on 20.8.96. Their Lordships of the Supreme Court, while dismissing Civil Appeal No. 6416 of 1983 arising out of the aforesaid Special Leave Petition filed by the tenants, clearly, categorically and unequivocally observed and held that the appellant originally and the tenants thereafter had abused the process of the court and by such gross abuse, had obtained orders stalling the demolition work for a long time and that the Supreme Court had been very indulgent to the appellant and later on to the tenants. Produced herein below are the most pertinent observations to that effect contained in the judgment-dated 20.8.96: "Thereafter, the special leave petition was adjourned to 10th August, 1983, we have reproduced all the conditions to give a comprehensive idea of the indulgence shown by the court in regard to the building in question in as much as the court appointed the Architect/Engineer Dr. K.K. Banerjee of M/s. Engineering Consultants who had been engaged by the tenants/owner of the building, so also the court appointed their advocate as court official for carrying our certain directions. The Bank of Rajasthan Limited had intervened in the said proceedings and, therefore, certain directions were given in relation to that Bank. The conditions set out in the said interim order have relevance because the two interim orders passed by this court clearly indicate that the court's anxiety was to save the building if it was possible to do so consistently with the rules, regulations and bye laws of the Municipal Corporation and the safety of not only the occupants of the building, but the neighbouring buildings and the passers by also. Thereafter, on 26th August, 1983 Special leave was granted on condition that the directions given in the interim order of 20th February, 1983 will have to be carried out and the appellant's architect Dr. K.K. Banerjee was directed to submit a report in respect of the progress of the work of demolition of the four topmost floors and the removal of defects and deficiencies for strengthening the building and ensuring that fire safety regulations were set. Dr. Banerjee submitted an interim report on November 17, 1983 and a final report on January 4, 1984."
(3.) After this having noticed the fact about the deficiencies in the building and its construction quality and having entrusted the work of assessment to Dr. K.K. Banerjee, the apex court referred to the observations of Dr. Banerjee. The relevant extract whereof we quote herein under: "To put in briefly he found fault with the work undertaken by M/s. Ghosh, Bose and Associates which, in our opinion, does not require a detailed examination. However, on the basis of his own approach he came to the conclusion that there were certain deficiencies in the existing building, which would have to be removed, and that the existing work would have to be strengthened. In regard to fire safety requirements he points out that the building as it stands has many limitations particularly, in respect of creating additional space for storage of water at ground level and providing second stair as fire escape. He noticed that there is a need to construct a second stair case which can be done by dismantling certain portion of the floor and connecting beams at every floor level necessitating vacating of the building by the tenants from the ground floor to the 9th floor of that portion which would be needed for construction of the stair case. He, however, points out that since this was a matter, which falls outside the terms of reference of this court's modified order he did not deem it appropriate to consider the same. He also noticed that the petitioner were not inclined to take up any of the construction for the additional stair on the plea that there are many number of tall buildings in Calcutta which were without second stair case. He concludes his report by saying that all works stipulated in paragraph 5 of this court's order of 28th February, 1983 have been completed 'as far as possible' except the provisions in regard to second stair case as part of fire safety arrangement.";