Coastal Roadways Ltd. and Another vs State of West Bengal and Others

Rabin Bhattacharyya, J.—The Coastal Roadways Ltd. initialed a writ application abreast of a good number of reliefs which included amongst others an order for injunction for effecting reconstruction/(sic)ing of business Premises No. 1/1, Camac Street which suffered damage and endangered by the illegal activities of the hoodlums in the locale. The petitioner forming a group of Industries sought for beautifucation of the office and the adjoining area which generated much dispute since the applications invited for the appointment of staffs and the assistant could not be accelerated. The petitioner resorted to a proceeding u/s 144 Cr.P.C. before the Ld. Executive Magistrate to prevent the breach of peace and for a direction on the O.C.F.S. Park Street, to provide egress and ingress to the business premises. The petitioner rushed to the writ court where the Ld. Trial Judge appointed a Special Officer and accorded interim order in terms of prayers (i), (j) & (k) of the petition. The repair works for the damage occurred to the premises was, however, granted.

In view of the urgency. Rule 27 of the writ Rule was not animated for dispensation of justice. The copy of the application was directed to be served upon all the respondents within one week from the date.

The respondent, the CMC, since caught up in the crisis for the order passed by the Ld. Trial Judge stirred a petition to vacate the order dated 23.4.96, preeminently founded on illegal construction in the basement area and also at the second floor consequent upon an inspection held by the CMC. The writ petitioner, as alleged, shut out further inspection of the premises to the respondent No. 6 in respect of other portion kept under lock and key. The writ petitioner, since put in unauthorised construction, for which, recourse was taken to provision of Section 400(8) of the CMC Act. 1980. In consequence, 3,000 sq. ft. suffered demolition but restored for the order complained of which became all sore in the litigation.

The respondent No. 6 sought for twin reliefs - one for vacating the interim order and other for disposal of the writ petition in the alternative regarding the impugned construction.

The focal point for determination is as to whether the order dated 14th of May, 1997 passed by the subsequent Bench is liable to be vacated and the interim order dated 23rd of April, 1997 restored. Mr. Mukherjee and Mr. Kapur have argued with much emphasis that the unauthorised construction spoken of by the CMC is a misnomer in that the averments in Paragraph 19 of the petition of the CMC do not encompass any unauthorised construction, save the permissible construction.

The CMC Building Rules. 1990 fosters right to the writ petitioner to put in internal partition when it does not militate or infringe any of the provisions of the Act or the Rules. The Ld. Counsel have made Rule 3(2) of the said Rules as the spring board to secure relief. The above, according to the Ld. Counsel for the writ petitioner expels the story of illegal or unauthorised construction. The internal partition, as contended by the Ld. Counsel for the writ petitioner does not invite any sanction plan, which has been insisted on by ''the CMC.

Mr. Roy the Ld. Advocate, appearing with Mr. Behani, for the CMC has submitted that judicial protection was accorded to law by the order complained of to encourage the unauthorised construction as the action of the writ petitioner never comes within the fold of Section 390 (h). The said section forbids conversion of the building into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such or to convert any building constructed for such purpose by sub-division or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns workshops, factories or garages.

In the advent of Section 390 (h) of the CMC Act, there is no slender material to suggest about the bona fide of the claim of the writ petitioner. On the contrary, the contents of the application preferred u/s 144(2) of the CRPC which was registered as M.P. Case No. 484/96 wherein they disclosed that the unauthorised construction is patent. The contents of Paragraph 3 and 8 respectively militates against the claim of the writ petitioner. It is not the case of beautification but conversion of the building to several parts which offends Sections 390 & 393. Mr. Roy has also submitted that equitable principle was given a go-bye when the mandate of the order complained of was carried into effect. The copies of the writ application were served upon the CMC not within the time stipulated in the order but at least 10 days thereafter, that is on 6th of May, 1997.

In developing his contention, he has asserted with skill that a party is entitled to enforce his right founded upon equity and statute, for which, the approach of the litigant should not be tainted. The relief must be commensurate with law and conduct. But when the act or conduct of a litigant are stricken with illegalities, the equity cannot come to his aid as it demands that he who seeks equity must do equity. The writ petitioner, according to him, sought for an order exparte which goes against all the canons of principles of natural justice and equitable principles. It passes all comprehension to believe, as submitted, that the role of the Special Officer speaks a considerable volume against the equitable principle as reconstruction of construction was made with the lable of repairs without notice to the adversory. It is really ludicrous, if not preposterous, that a litigant when vitally interested in the result of a litigation has been left out which could only be construed as violation of the principle of natural justice.

Further, it appears that the full relief was accorded through the interim order complained of dated 22.4.97 to the writ petitioner which according to Mr. Roy has been depricated by the courts of our country. It is a different aspect of the matter but when the petitioner is not providea with any legal right, the writ court should not come to rescue him. The enlargement or "expansion of relief by invoking the aid of equity is permissible when the right sought to be enforced should be founded upon tangible prima facie case. A party can go into action for relief in a court of law for a prohibitory order when there is infringement of right but the law when does not recognise such right, as in instant case, it leads to an irresistible prima facie conclusion that the petitioner cried for such relief.

The question of balance of convenience and inconvenience can be imported only when there is a prima facie case. But when there is no fairness in action and deliberate lapses committed to accomplish the act, the balance of convenience and inconvenience becomes a theory than practice. The existence of a prima facie case is the fountain to extend relief but when it eats in to the vital of such case the longing for preventive relief becomes a cry in despair. The irreparable injury flows from prima facie case and balance of convenience and inconvenience, but when there is no legally enforceable right it becomes an idle parade for a litigant to canvass his cause. The petitioner cannot enforce his right in a proceeding in violation of statutory provisions.

The story of non-receipt of a notice from CMC about the violation of its provision is a convenient plea to gain ground which did not acquire any force. It is also found from the record that the writ petitioner, as submitted by the Ld. Counsel for the respondent got the interim order extended in complete abuse of the process of court which defeats not only the ends of law but the ends of justice. He has interpreted the action to be an one way traffic, for which, the writ petitioner cannot harvest any relief in any court of law.

Having considered the respective submissions, we are of the view that it is not a fit case where the appeal court could interfere with the order dated 14.5.97. Accordingly, we reject the injunction application. In the state of materials on record, we dispose of the appeal and the injunction. The status-quo order was passed by ourselves on 15.5.97 is thus vacated. All parties concerned are to act on a xeroxed signed copy of this judgment and order on the usual undertaking.

Nure Alam Chaudhury, J.

I agree.