JUDGMENT : By the order dated 26th September, 2014 in WP No.927 of 2014 this court had extended the time for Kolkata Municipal Corporation to take a decision whether premises no.121/1C, Bidhan Sarani, Kolkata-700004 should be declared as a heritage building or not. Time was given to them till 26th October, 2014 by the said order. They did nothing. That occasioned the passing of the order dated 3rd November, 2014 in a subsequent writ application [T.No.310 of 2014]. Time was extended till 15th December, 2014. 2. Appeals were preferred before the Appellate Court against both these orders. By the order dated 10th December, 2014 the order dated 26th September, 2014 was sustained. However, by another order passed on the same day the order of 3rd November, 2014 was set aside. 3. The effect of the orders of the Appeal court, to my mind is that the issue regarding granting of further time to the Heritage Commission to take a decision whether to declare the subject building as a heritage building or not, is closed at least before this court. This is so because the Appellate court did not appreciate the granting of further time to Kolkata Municipal Corporation after 26th October, 2014 to make the said declaration. Hence, my order dated 3rd November, 2014 was set aside. 4. Now, comes the point raised in this writ application. 5. It is said that the building plan has been sanctioned in violation of the Kolkata Municipal Corporation Building Rules, 2009. The frontage is less than what it ought to be under the rules. Front open space of 2 mt. ought to be kept whereas in the plan the front open space is shown as only 1.2 mt. Hence, this court should annul the building plan sanctioned. 6. Mr. S.N. Mookerji, learned senior advocate for the private respondents submitted, by showing me the first order dated 26th September, 2014 and the connected writ application that allegations had been made therein regarding illegal construction. Those allegations were different from the allegations made in this writ. He stressed on the fact that the court did not pass any order with regard to the alleged illegal construction and did not reserve any liberty, by the order dated 26th September, 2014, to the petitioner, to urge the question of sanction in a subsequent writ application. Those allegations were different from the allegations made in this writ. He stressed on the fact that the court did not pass any order with regard to the alleged illegal construction and did not reserve any liberty, by the order dated 26th September, 2014, to the petitioner, to urge the question of sanction in a subsequent writ application. Such liberty was granted by the order dated 3rd November, 2014 but it was set aside on appeal. Secondly, the writ petitioner has been taking different grounds regarding illegal construction at different points of time. Hence, the writ application should not be entertained. He also argued that the order dated 26th September, 2014 acted as constructive res judicata on the principle that an order prayed for but not passed is deemed to have been refused. 7. As far as the heritage part is concerned, I reiterate that the issue is closed for the reasons given by me above. Mr. Basu, learned senior advocate for the petitioner does not even urge the issue. 8. But as far as the illegal construction part is concerned, it appears that the issue has not even been considered by the court. Now, if an issue has been considered by the court and the order is silent regarding that issue, it can be said that the order had been prayed for and refused. The principles of constructive res judicata could be applied in such a case. But if an issue has not been dealt with by the court, that issue cannot be closed on the ground of res judicata, actual or constructive. It can be closed on other grounds like abandonment of the cause of action without leave of the court to file a fresh action in respect of the same but certainly not res judicata. This is so because there is no adjudication at all. It is true that when the order dated 26th September, 2014 was passed, the petitioner did not seek leave of the court to urge the point of illegal construction in a subsequent proceeding. 9. However, I am not minded to defeat a substantial claim on such technical points. It appears that such an omission was by sheer inadvertence of learned counsel to take the leave of this court. 9. However, I am not minded to defeat a substantial claim on such technical points. It appears that such an omission was by sheer inadvertence of learned counsel to take the leave of this court. This is particularly so because leave to maintain a separate action for illegal construction was taken in the second writ and granted by the court. But that order has been set aside by the Appellate Court, as stated before. 10. As far as the alleged illegal plan is concerned, this court does note that the writ petitioner has taken different grounds of its alleged illegality at different points of time. At one point of time it was alleged that the plan was illegal because no notice of sanction of the same was given to the occupiers of the building. At another stage some other point was taken. Lastly, this issue about frontage has been raised. 11. Therefore, whether the plan is legal or illegal is a highly disputed question of fact. I think this issue should be referred to the Commissioner under section 397 of the Kolkata Municipal Corporation Act, 1980. 12. This section vests the Commissioner with a discretionary power to pass any order in respect of a plan. This court considering the above circumstances is not in a position to make any finding of fact with regard to the allegations contained in the petition. 13. The writ petition may just be referred to the Commissioner so that he may consider exercising powers under section 397 of the said Act. The Commissioner should exercise or refuse to exercise power as the case may be by a reasoned order, upon hearing all the interested parties within a period of two months from the date of communication of this order. Any prayer for interim stoppage of work may be made before the Commissioner and dealt with by him accordingly after adequate notice to the private respondents and by a reasoned order. 14. As no affidavit in opposition has been invited allegations, if any, contained in the petition are not deemed to have been admitted. 15. With the above observation, this writ application is, accordingly, disposed of.