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. 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. " "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. 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. 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. " ( 4 ) BY his judgement dated 14th Dec. 1981 the learned Judge dismissed the application and discharged the Rule. The learned Judge held that the question of the ownership of the portion of the land which the respondent No. 4 has shown as vacant space in Nandaram Market has to come up for determination in the suit being Suit No. 538 of 1980 which has been filed in this Court where the writ petitioner is the plaintiff. According to the learned Judge, in that view of the matter he was not inclined to entertain the present writ petition. It was however made clear that the learned Judge had made no observation relating to the question whether the construction made by the respondent No. 4 at the said premises No. P/4, New Howrah Bridge Approach Road is unauthorised or not. The learned Judge merely observed that if the said premises a is unauthorised, the Corporation authorities will be at liberty to proceed in accordance with law. ( 5 ) BEING aggrieved by the said judgement and order, this appeal has been preferred by the Writ Petitioner. It has been contended before us that the learned Judge was wrong in dismissing the writ petition an the ground as expressed in the judgement. It was submitted that the learned Judge failed to appreciate the scope and effect of the suit and the writ petition. It has been contended before us that the learned Judge was wrong in dismissing the writ petition an the ground as expressed in the judgement. It was submitted that the learned Judge failed to appreciate the scope and effect of the suit and the writ petition. It was submitted that the claim in the writ petition was not based solely on the question of the title to the land but also on the question of unauthorised construction. On behalf of the respondents it is stated that the learned Judge correctly dismissed the application because it involves disputed questions in respect of which the suit was pending where the petitioner is the plaintiff and the same very question has been raised. ( 6 ) WE have examined in details and very closely the writ petition and the plaint filed in the suit. In our opinion, the learned Judge should not have dismissed this application on the ground as he did. It is true that the suit proceeds on the basis of the petitioner's title to the open space of land being the passage between the two buildings. In the suit the Brabourne Properties are only the defendants. The Municipal Corporation, Calcutta and its Officers are not parties therein, The prayer made in the suit is to the following effect :-" (A) A declaration that the defendant is not entitled to encroach on or carry on any construction in any way over the said land of the plaintiff being premises No. 37/1/1, Purushottam Roy Street, Calcutta, or in any space above the said land; (b) Mandatory injunction directing the defendant to demolish and dismantle all construction work of any kind carried out by it over the said land or in the space above it in any way and any encroaching upon the said land and/or space above it including the said beems and concrete roof mentioned in the plaint; (c) Permanent injunction restraining the defendant whether by itself or its servants or agents or otherwise howsoever from carrying on any construction work of any kind such as verandah or lifts for passage or cargo, or encroaching in any way over the said land of the plaintiff being premises No. 37/1/1, Purushottam Roy Street, Calcutta, or the space above the said land. "we have already set out the scope of the writ petition. "we have already set out the scope of the writ petition. From that it is apparent that two different and separate questions are involved in the writ petition filed by the appellant herein. One is undoubtedly the claim based on the petitioner's alleged title to the covered space of land involved and this is subject matter of the suit. But so far as the second aspect of the matter is concerned, which is directed against the Municipal Corporation of Calcutta and its Officers, this is regarding non-action of the Corporation of Calcutta and its officers regarding taking steps against the action of the company which is alleged to be carrying on unauthorised construction in violation of the sanctioned plan and in violation of the Building Rules. This part of the claim of the appellant in the writ petition is not the subject matter of the suit. No relief has been claimed in the suit for such alleged violation. As already pointed out, the Corporation is not a party in the suit. The second claim is based on a completely different footing and this is directed against the Corporation. Even if regarding the first point there is a disputed question of title and even we, assuming for the sake of this case, proceed on the basis that this land belongs to the company in question, still the question of alleged infringement of the Building Plan and the Building Rules remains. Relief regarding the same cannot be given in the suit as it is now. Therefore, in our opinion, the learned Judge was wrong in dismissing the petition on the ground as he did. ( 7 ) ON merits of the case, the learned Advocate appearing for the appellant has submitted that in view of the reasons given and the order passed in the earlier two appear, no Fresh order need be repeated in this appeal but that the Municipal Corporation of Calcutta should be directed to pass appropriate orders and take action for demolition. ( 8 ) WE need not give separately our reasons in this case having regard to the orders passed by us in the two other appeals. ( 8 ) WE need not give separately our reasons in this case having regard to the orders passed by us in the two other appeals. Apart from what we have already observed therein, in our opinion there should be an order directing the Municipal Corporation of Calcutta to take appropriate action under the law including taking action regarding demolition in respect of violation of the Building Rules and the sanctioned plan which expired in 1967 and we direct accordingly. The Corporation shall not allow any further construction to be made or any further addition or alteration to be made, not even in accordance with the sanctioned plan because it has expired long time back. ( 9 ) IN this context we may point out that in spite of the fact that various opportunities were given to the Corporation of Calcutta, such copy plan, which should have been available in the office of the Municipal Corporation of Calcutta, was not traceable or available in spite of best efforts of the learned Advocate appearing for the Municipal Corporation of Calcutta. The learned Advocate appearing for the Corporation of Calcutta has stated before us that he has seen this document at the time of hearing before the trial court. The learned Advocates appearing on their behalf have been very frank and sincere, but they are helpless in the matter. It is a pity that a very valuable document, which was available even upto the time of hearing before the trial Court, cannot be traced at the time of hearing of the appeal. ( 10 ) WE, therefore, direct the Mayor-in-Council of the Municipal Corporation of Calcutta to cause an enquiry to be made in this matter, either personally or by a senior officer of his choice, to find out as to why the copy of the sanctioned plan of the said premises which should have been in the office of the Municipal Corporation of Calcutta, is not available now and who are the persons responsible for the same. ( 11 ) LIBERTY to apply. ( 12 ) THE private respondents will pay the costs of this appeal to the appellant which is assessed at 60 G. Ms. ( 13 ) ALL parties concerned including Mayor-in-Council to act on a signed copy of the minutes of the operative portion of the order made herein on the usual undertaking. ( 11 ) LIBERTY to apply. ( 12 ) THE private respondents will pay the costs of this appeal to the appellant which is assessed at 60 G. Ms. ( 13 ) ALL parties concerned including Mayor-in-Council to act on a signed copy of the minutes of the operative portion of the order made herein on the usual undertaking. ( 14 ) BANERJEE, J. :- I agree. Appeal allowed. .