Calcutta High Court
Sunil Kumar Shaw vs Pooja Jaiswal on 23 December, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
ocd 1 & 2
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
AP-COM/313/2024
[Old case no. AP/313/2023]
IA NO: GA/1/2023
SUNIL KUMAR SHAW
VS
POOJA JAISWAL
AP-COM/427/2024
SUNIL KUMAR SHAW
VS
POOJA JAISWAL
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date : December 23, 2024
Mr. Arup Nath Bhattacharyya, Adv.
Ms. Munmun Ganguly, Adv.
Mr. Varun Kotharti, Adv.
Ms. Sayani Das, Adv.
Ms. Sritama Biswas, Adv.
Mr. Arya Bhattacharyya, Adv.
... for Petitioner
Mr. Altamash Alim, Adv.
Mr. Rohit Banerjee, Adv.
Ms. Rajashree Bhowmick, Adv.
...for Respondent.
AP-COM/313/2024
GA 1 of 2023
The Court : GA 1 of 2023 was filed for vacating, setting aside or
modifying the orders dated June 5, 2023 and June 12, 2023. A
supplementary affidavit had been filed by the respondent to bring on
record certain facts, which could not be placed before the learned
Judge, when the orders were passed. Ex parte ad interim injunction,
restraining the respondent from changing the ownership, structure or
the nature and character of the suit property, in which the petitioner
claimed to have a partnership interest, was issued in AP-COM
2
313/2024, which was an application under Section 9 of the
Arbitration and Conciliation Act, 1996.
It was the specific contention of the respondent that the
business was suffering huge loss in view of the poor condition of the
toilets and the dilapidated interiors, wooden panels, doors, windows
etc. in the restaurant-cum-bar. Permission was sought for from the
office of the Collector of Excise, Kolkata (North), Government of West
Bengal on October 28, 2024 and the authority allowed the petitioner
to undertake the renovation work of the existing premises.
Accordingly, intimation was sent to the Director General Building,
Kolkata Municipal Corporation.
The matter was heard by this Court on December 12, 2024.
Accordingly, this Court was of view that the assessment of the exact
condition of the interiors of the property and whether repair was
required within the premises, should be made by a neutral party. The
Court restricted the prayer of the respondent to the issue as to
whether internal repair and painting should be permitted inside the
restaurant and the toilet. Accordingly, the learned Special Officer, Mr.
Avidipto Tarafdar, Advocate of the Bar Library Club who was
appointed by my predecessor Judge, was directed to cause an
inspection of the interior of the premises, make an inventory and file a
report.
The learned Special Officer has filed a detailed report with
photographs.
It appears that an area was being renovated and a new toilet
was under construction on the right hand side of the existing
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structure which was initially a toilet. The said toilet was no longer in
existence, although the structure remained. Upon query of the Court
to the learned Special Officer as to whether any additional space was
being occupied by extending the structure beyond what was already in
existence, the learned Special Officer has answered in the negative.
This prima facie, indicates that the renovation work and construction
of the toilet was within the structure.
Under such circumstances, the interim order is clarified or
modified to the extent that the said toilet will be
constructed/renovated in its present position, without any further
addition or alternation or extension of the same beyond the existing
structure. Such construction will not create any equity in favour of the
respondent and the dispute between the parties may be resolved in an
appropriate proceeding. The Kolkata Municipal Corporation is also at
liberty to take steps in respect of such construction if the same is
found to be in violation of the rules and regulations. The permission is
only granted in view of the learned Special Officer’s assertion that no
toilet facility is available within the bar-cum-restaurant for the
customers.
Upon further considering the report, this court also directs that
the damaged walls shall be re-plastered and painted. No extra wall
tiles or any other alteration to the walls shall be permitted. The
wooden panels which have been damaged shall be replaced. The
damaged wooden panels shall be kept aside. Re-plastering and
painting of the walls, the replacement of the damaged wooden panel
on the stage and walls and the construction of the toilet shall be
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permitted under the supervision of the learned Special Officer only to
the extent as pointed out in the photographs filed by the learned
Special Officer. The respondent shall make a request to the learned
Special Officer to visit the premises, indicating the date and time when
such work shall commence. The Special Officer shall be monitoring
the work, upon due notice to the petitioner. Till such time the request
is made to the learned Special Officer, renovation, plastering of the
walls, replacement of the panels and construction of the toilets shall
not be permitted. The Special Officer shall visit the restaurant-cum-
bar on the day indicated by the respondent and give necessary
instructions. The petitioner may accompany the Special Officer. The
Special Officer can visit the property to make surprise inspections till
the work is over.
This permission is not to be construed as acceptance of the case
of the respondent that the petitioner did not have any interest either
in the partnership interest or in the bar-cum- restaurant. This order
should not also be taken as the seal of the court to construct and
renovate without the sanction/permission of the Kolkata Municipal
Corporation. The Corporation can impose the rules and regulations
without any reference to this court.
However, the contention of the petitioner that the report
indicates that the furniture and fixtures etc. which were installed at
the cost of the petitioner have been removed, are disputes which shall
be adjudicated in a proper proceeding. This permission is not a
declaration that the petitioner does not have any partnership right in
5
the property. Such issue will also be decided in an appropriate
proceeding.
Apart from the clarification and modification as above, the
orders dated June 5, 2023 restraining the respondent from changing
the ownership or structure or nature and character of the property,
shall continue for a further period of three months from date. The
order dated June 12, 2024, remains unaltered and will continue for a
period of three months from date.
Parties are directed to cooperate with the learned Special
Officer.
Further remuneration of Rs.30,000/- be paid to the learned
Special Officer by the respondent for the entire exercise of monitoring
the repairs. The report shall be filed by the learned Special Officer
after the limited repair, replacement, construction and painting is
over. The report shall be filed on March 7, 2025, when this matter will
appear only for the purpose of filing of the report by the learned
Special Officer. The learned Special Officer shall stand discharged
upon expiry of three months.
With the above observation, the GA/1/2024 stands disposed of.
AP-COM/427/2024
AP-COM/427/2024 be delisted and shall appear on 7th
January, 2025.
(SHAMPA SARKAR, J.)
pkd/GH