JUDGMENT : Harish Tandon, J. 1. The challenge is made to an order of the Special Officer (Building) of the Kolkata Municipal Corporation dated 10th August, 2006, directing the demolition of the wall, which was affirmed by the Building Tribunal. 2. Admittedly, the plan was sanctioned for construction of G + 10 building way back in the year 1973 and such construction was completed in all respect as different persons have purchased the flats of the said building; some of them with the car parking space and some thought not to purchase such car parking space. 3. The dispute arose between the flat owners of the constructed building, who formed the Society and the owner relating to parking of cars in the space, other than those specified in their respective deeds. Several litigations came to be filed and ultimately reached before this Court. 4. The petitioners herein tried to resist the members of the Society from encroaching the other portion, which was never intended to be transferred to them from parking their cars and even approached the Police Authorities to render assistance and help. The inaction on the part of the Police Authorities constrained the petitioners to file a writ petition being WP 1905 of 2003 before this Court, which was disposed of, directing the Deputy Commissioner of Police (South) to provide adequate police assistance to the petitioners for the purpose of repairing the broken wall at the premises in question strictly in accordance with law. 5. The Society assailed the said order before the Division Bench and raised a plea that by making the wall, the petitioners are intending to separate the premises and depriving the owners of the respective flats to enjoy the undivided portions of the premises for which the sanction was granted by the Corporation. It is tried to contend before the Division Bench that excess Floor Area Ratio (FAR) was enjoyed by the petitioners showing the vacant space pertaining to premises no. 12A and 12B of Russel Street, Kolkata - 700 016 and by erecting the wall, they wanted to separate the premise no. 12B from premise no. 12A of Russel Street, Kolkata. It was contended before the Court that there was an existence of a wall and, therefore, there is no impediment in proceeding to repair the said wall, which was damaged and/or broken by passage of time. 6. 12B from premise no. 12A of Russel Street, Kolkata. It was contended before the Court that there was an existence of a wall and, therefore, there is no impediment in proceeding to repair the said wall, which was damaged and/or broken by passage of time. 6. The Division Bench appointed a Special Officer, who submitted a report and both parties laid their submissions on the said report. The Society placed reliance upon a portion of the report, which suggest that there was no existence of a wall in continuance of and after the boundary wall and, therefore, the question of repair does not arise. On the other hand, the petitioners relied upon the penultimate paragraph of the said report, which suggest the existence of bricks running along the line of the common passage indicating there was a wall in existence. 7. By an order dated 9th July, 2004, the Division Bench dismissed the said appeal with categorical findings that if any person, who claims right in the vacant portion of the land situated at the South of the common passage, he may establish such right before the Civil Court and declined to interfere with the order passed by the Single Bench. 8. The Society, in turn, filed a writ petition being WP 1444 of 2004 before this Court and prayed for a direction upon the Kolkata Municipal Corporation to take immediate steps for demolition of the unauthorized construction undertook by the petitioners. While disposing of the said writ petition on 1st October, 2004, the Single Bench recorded that the Corporation have already initiated a proceeding for demolition, which is pending before the Special Officer (Building) and directed the said demolition proceeding to be disposed of within three months from the date of the communication of the said order. 9. Several civil proceedings were initiated by the respective parties, wherefrom the Division Bench was approached in connection with the First Miscellaneous Appeal being FMAT 328 of 2005 and the Division Bench on 15th February, 2005, restrained the Society or its members from encroaching upon any portion beyond the area mentioned in Schedule 'A' at page 161 of the application for stay. The aforesaid order came to be passed on an allegation that the members of the Society were encroaching beyond the area described in Schedule 'A' to the said application and such encroachment is illegal and infringes the right of the petitioners herein. 10. An application for contempt was taken out alleging that despite the order of injunction, the members of the Society deliberately and consciously violated the said order and invited the attention of the Court to take cognizance under the Contempt of Courts Act. The contempt application came up for final disposal on 3rd March, 2006 and the Division Bench categorically and in explicit terms held that the contemnors therein are guilty of violation of order of injunction and directed their personal appearance before the Court. 11. It was categorically observed that there was a deliberate violation of the order in the sense they are parking their cars within the prohibited place mentioned in the said order. It is a matter of record that the contemnors filed an undertaking by which they undertook not to park their cars in the prohibited place and the Division Bench exonerated them from punishment under the Contempt of Courts Act. 12. Once it is realised that they are restrained by an order of injunction from encroaching by way of parking the cars in a prohibited place, the Corporation was used as a tool to get read of the said order of injunction for initiation of a proceeding to demolish the wall repaired and/or constructed by the petitioners. The Corporation immediately blessed the members of the Society and issued a notice under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as 'said Act'), inviting the petitioners to explain why the wall erected in the premises should not be demolished. 13. The precis, which is a foundation of the said proceeding, recorded the violation of the provisions contained under Rule 61 and Rule 62 of the Kolkata Municipal Corporation Building Rules, 1990 (hereinafter referred to as 'said Building Rules'). The Special Officer (Building) held that the person responsible have constructed the intermediate wall separating the vacant portion in front of the building and, therefore, the Floor Area Ratio given while sanctioning the plan has been violated and, therefore, it invites the immediate demolition of the said wall. 14. The Special Officer (Building) held that the person responsible have constructed the intermediate wall separating the vacant portion in front of the building and, therefore, the Floor Area Ratio given while sanctioning the plan has been violated and, therefore, it invites the immediate demolition of the said wall. 14. Before the Building Tribunal, the argument was sought to be advanced at the behest of the Society that by raising the intermediate wall the petitioners are trying to separate the premise no. 12A from premise no. 12B of Russel Street, Kolkata, though there is no existence of premise no. 12A of Russel Street, Kolkata. The order reveals that the sanction was accorded in respect of premise no. 12B, Russel Street, Kolkata on 9th March, 1973 for construction of G + 10 building. Though the Special Officer (Building) did not record the violation of any of the Rules, but the Building Tribunal found that the construction of an intermediate wall offends Rule 55 of the said Building Rules, as such divider has been put within six metres of the front open space. 15. There is a clear departure in the findings made by the Special Officer (Building) and the Building Tribunal. Though the precis contains the violation of Rules 61 and 62 only, but the Tribunal did not record any findings whether the violation alleged in the precis have been successfully proved or not and embarked its journey to a third provision, which is absent in the said precis. 16. Be that as it may, as both the parties were aware about the issue involved therein and advanced their submissions on the same, this Court may reasonably treat that the said violation was also an issue before the Building Tribunal. 17. Rule 61 of the said Building Rules specified the Floor Area Ratio and its mechanism of granting at the time of sanctioning the plan. Rule 62 of the said Building Rules provides the ground coverage, that is to say, before sanctioning the plan for erection of the building, the area of the plot to be covered by such building, shall be in accordance with the formula as indicated therein. Rule 62 of the said Building Rules provides the ground coverage, that is to say, before sanctioning the plan for erection of the building, the area of the plot to be covered by such building, shall be in accordance with the formula as indicated therein. Rule 55 of the said Building Rules mandates the maintenance of the front open space in every category of the building as referred to in Rule 54 to be not less than 20 per cent of the height of the building or six metres at its narrowest parts, whichever is less. 18. Since the wall, which is repaired or constructed, is within six metres from the building, the Building Tribunal was inspired by a submission of the Society and departed from the violation alleged in the precis and found that it offends Rule 55 as well. 19. The parties are not at idem whether the wall was in existence or not. According to the petitioners, there was an existence of a wall, which could be corroborated from the report of the Special Officer appointed by this Court and specific order was passed on the basis thereof, permitting the petitioners to effect the repairs. On the other hand, the Corporation and the Society jointly say that there was no existence of a wall at the time of sanctioning the plan and it is erected and/or raised for demarcating the premises, so that they can take advantage of the vacant space in future. It is audaciously submitted by the Corporation and the Society that if the petitioners are permitted to demarcate the open space with the building constructed upon taking advantage of the excess Floor Area Ratio because of such vacant space, it offends and violates the Building Rules and, therefore, the Special Officer (Building) as well as the Building Tribunal have correctly ordered for demolition thereof. 20. An artificial line of distinction is sought to be made, both by the Corporation and the Society, that by erecting and/or raising the wall the petitioners are trying to separate the premise no. 12A, Russel Street from premise no. 12B, Russel Street. 21. Mr. Alok Kumar Ghosh, learned advocate appearing on behalf of the opposite party no. 1, even proceeded further in saying that the sanction plan took note of the land comprised in premises no. 12A, Russel Street from premise no. 12B, Russel Street. 21. Mr. Alok Kumar Ghosh, learned advocate appearing on behalf of the opposite party no. 1, even proceeded further in saying that the sanction plan took note of the land comprised in premises no. 12A and 12B, Russel Street, Kolkata and any attempt to demarcate the said two premises amounts to a fraud being perpetrated upon the Corporation at the time of sanctioning the plan and enjoying the excess Floor Area Ratio. 22. The aforesaid submission of Mr. Ghosh is not acceptable at all. Both the Special Officer (Building) and the Building Tribunal have expressly recorded that the sanction was accorded in respect of the premise no. 12B, Russel Street, Kolkata and there is no reference of premise no. 12A either in the precis or in the findings recorded therein. 23. Mr. Ghosh further improved his argument, saying that any wall, which cannot be brought within the purview of the boundary wall, shall not be raised and/or erected or permitted to be retained in view of the definition of a building enshrined under Section 2(5) of the said Act. 24. The aforesaid argument appears to have come at the Bar. Neither the Special Officer (Building) nor the Building Tribunal had any occasion to consider the same. The argument of Mr. Ghosh appears to be de hors the findings recorded by both the parties and have been taken out for the first time before this Court. In this regard, the reference can be made to a Constitution Bench decision rendered in case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., reported in AIR 1978 Supreme Court 851, wherein it is categorically held that the statutory functionary, who makes an order on certain grounds while passing the order, cannot be supplemented by fresh reasons or the grounds, which was neither taken into consideration nor was the subject matter of dispute. It would be relevant to quote paragraph 8 of the said judgment, which runs thus: "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It would be relevant to quote paragraph 8 of the said judgment, which runs thus: "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at p. 18): "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older. A Caveat." 25. Furthermore, the Single Bench in a writ petition filed by the petitioners permitted them to effect the repairs of the broken and/or damaged wall and the Division Bench declined to interfere with such order, meaning thereby, the said order attains finality in absence of any further challenge. The Division Bench was conscious of the objection having put forth before it whether there was any existence of a wall or in the pretext of a repair the petitioners are intending to erect new boundary wall. 26. The Special Officer, who was appointed by the Division Bench, in its penultimate paragraph observed "it is also found that in between the said cemented flooring in front of the main building and the clay, soily area, where the cars are kept parked, there is existence of bricks, embedded in the soil, running along the line of common passage of the cemented portion with a few iron-net covered small drain pits". 27. 27. Since the Division Bench was satisfied about the remanence of the boundary wall and the same having been damaged and/or broken, did not interfere with the order of the Single Bench by which the petitioners were permitted to effect repairs of the broken and/or damaged wall. 28. Mr. Ghosh tried to impress upon this Court that the Division Bench did not rely upon the report of the Special Officer and, in fact, did not take into consideration while determining the said appeal. 29. Had it been a case that the Division Bench discarded the report of the Special Officer, the same would invite the reversal and/or setting aside the order of the Single Bench and it could not have sustained the said order. 30. It is no doubt true that the definition of a building includes wall except the boundary wall up to the height of three meters and Section 390 of the said Act restricts the erection of a building without any sanction being accorded under Section 393 of the said Act. There is an express prohibition enshrined under Section 392 of the said Act and there is no ambiguity in this regard. 31. Rule 3(2) of the said Building Rules relaxes the prohibition to the extent that no building permit is required for erection, re-erection, addition to, alteration of any internal partition wall which does not violate any of the provisions of the Act or these rules. Even if this Court accept the submission of the Society as well as the Corporation for the purpose of addressing an issue that erection of a wall would offend Rule 55 of the said Building Rules, as the front open space, which is mandatorily required to be left shall be violated, the recourse can be had to Rule 53 of the said Building Rules, which contemplates the open space to mean open to sky and no roof, or weather-shade, or cornice more than 0.5 metres width. Can it be said that mere erection of an internal wall without any roof or the cornice or the weather-shade and/or in open to sky offends the restrictions created for keeping the open space? Can it be said that mere erection of an internal wall without any roof or the cornice or the weather-shade and/or in open to sky offends the restrictions created for keeping the open space? The answer is 'no', provided such open space remains the open space for all time to come, if it forms the condition at the time of granting the sanction permitting the person to have the advantage of the excess Floor Area Ratio permissible under the Act or the Rules framed therein. 32. It is nobody's case that any kind of constructions are intended in the space, which was a part of the sanctioned plan and, therefore, it cannot be conceived that by repairing and/or constructing a wall it would amount to the violation of the floor area as indicated in Rule 61 and Rule 62 of the said Building Rules. 33. So far as the Rule 55 of the said Building Rules is concerned, it restricts the front open space to be not less than twenty per cent of the height of the building or six metres at its narrowest part, whichever is less. If the character of the open space is not changed and/or converted by mere erecting a line of demarcation, which is intended solely for the purpose of avoiding the encroachment by the third party, this Court does not find that the same can be brought within the purview of Rule 55 of the said Building Rules. 34. The legislature have taken sufficient care of where an unscrupulous litigant may taken recourse by whatever means to diminish the open space under Rule 63 of the said Building Rules, which prohibits the transfer of such open space in whatever manner and/or means once the same is used and utilised for the purpose of sanction of the plan. 35. Apart from the above finding, if the Division Bench has accepted the report of the Special officer, who suggested the existence of a boundary wall and having broken and/or damaged in course of time and affirmed the order of the Single Bench by which the petitioners were permitted to effect the repairs, it cannot be said that the petitioners have erected the said wall for the first time, which offends any of the provisions of the Act or the Rules. 36. 36. Admittedly, both the parties did not produce the sanction plan and have banked upon the report of the Engineer, who stated to have considered the building plan in respect of premise no. 12B, Russel Street, Kolkata. The said report appears to be contemporaneous in time to the report of the Special Officer appointed by the Division Bench of this Court. Neither the Special Officer (Building) nor the Building Tribunal had an occasion to peruse the sanctioned plan dated 9th March, 1973 whether it contains any existence of the partition or the dividing wall or not. If the Court held that there was an existence of a wall, unless there is a positive and conclusive documentary evidence or evidence evincing the conduct of the petitioners to be otherwise, it was not proper to bank upon the report of the Engineer and directed demolition of the wall. 37. In whatever angle this Court looked at, the order passed by the Special Officer (Building) as well as the Building Tribunal, impugned herein, cannot be sustained. Both the orders are hereby set aside. 38. The revisional application succeeds. There will be no order as to costs.