Calcutta High Court
Anandlok Welfare Association & Anr vs Kolkata Municipal Corporation & Ors on 14 March, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
I.A.G.A./2/2022
I.A.G.A./3/2022
I.A.G.A./4/2022
I.A.G.A./5/2022
APO/28/2022
WITH
WPO 492 OF 2017
CAN/1/2023
MAT/617/2023
WPA/21069/2021
ANANDLOK WELFARE ASSOCIATION & ANR.
VS
KOLKATA MUNICIPAL CORPORATION & ORS.
WITH
OCO/1/2022
CITY ENCLAVE PVT.LTD.
VS
ANANDLOK WELFARE ASSOCIATION & ANR
AND
IA NO: GA/2/2023
APO/29/2022
WPO 990 OF 2016
CAN/1/2023
MAT/617/2023
WPA/21069/2021
ANANDLOK WELFARE ASSOCIATION & ANR.
VS
KOLKATA MUNICIPAL CORPORATION & ORS.
2
WITH
OCO/2/2022
CITY ENCLAVE PVT.LTD.
VS
ANANDLOK WELFARE ASSOCIATION & ANR..
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellants : Mr. S. N. Mitra, Sr. Advocate
Mr. Nirmalya Dasgupta, Advocate
Mr. Arnab Sinha, Advocate
Mr. Srijib Biswas, Advocate
Mr. R. L. Mitra, Advocate
Mr. Amartya Basu, Advocate
For the KMC : Mr. Biswajit Mukhjerjee, Advocate
Mr. Swapan Kumar Debnath, Advocate
For the Respondent No. 6 : Mr. Anindya Kr. Mitra, Sr. Advocate,
in APO 28 and 29 of 2022 Mr. Abhrajit Mitra, Sr. Advocate Mr. Soumya Raychoudhury, Advocate Mr. Sarvapriya Mukherjee, Advocate Mr. Satadeep Bhattacharyya, Advocate Mr. Awani Kumar Roy, Advocate Mr. Surajit Biswas, Advocate For respondent Nos.8 & 9 Mr. Soumya Raychoudhury, Advocate in MAT/617/2023 Mr. Sarvapriya Mukherjee, Advocate Mr. Satadeep Bhattacharyya, Advocate Mr. Awani Kumar Roy, Advocate Mr. Surajit Biswas, Advocate Judgment On : 14.03.2024 3 Apurba Sinha Ray, J. :-
Factual matrix The original owner, Bikas Sinha, of the premises no. 227 Acharya Jagadish Chandra Bose Road, Kolkata let out the premises on long lease to one Smt. Sarojini Goswami in 1974.The lessee filed returns under the Urban Land Ceiling Act (in short ULC Act) and subsequently, it was found that there was excess vacant land to the extent of 1079 square metres. On an application being made by Smt. Goswami, exemption was allowed to the extent of 379 square metres and permission was granted by ULC Department to make construction on the premises without touching 700 square metres of land abutting Acharya Jagadish Chandra Bose Road which was earmarked for acquisition by the Government of West Bengal. The original owner sold the said premises to Jenny Christiansen (SA) Private Limited and Smt. Goswami surrendered the lease. Jenny constructed a multistoried B+G+5 building and flats were sold to different persons. An Association was formed to protect and promote the rights and interest of the flat owners of the said building. The Association claimed that 700 square meters of disputed land forms a part and parcel of the premises number 227 AJC Bose Road Kolkata and when the building plan was sanctioned by KMC for construction of the multistoried 4 building the disputed land was shown as car parking space for the residents of the multistoried building. The competent authority under the ULC Act finally held that there was no excess vacant land in the said premises and dropped the acquisition proceedings. Subsequently in 2008, City Enclave, the respondent no. 6, purchased 700 square meters of land from Jenny which was demarcated by constructing a boundary wall from the parent premises and the same was mutated and renumbered as 227A AJC Bose Road Kolkata. The Association made a representation to KMC complaining that the boundary wall was being constructed illegally, and receiving no response from KMC, the Association approached a learned Judge of this Court by filing WP no. 622 of 2003. During the hearing of the writ petition, the KMC submitted that it was taking steps and a demolition case would be instituted in respect of the impugned boundary wall. On the basis of such submission the learned Judge disposed of the writ petition.
A demolition case was initiated in respect of the concerned boundary wall before the Special Officer (Buildings), KMC and the same was ultimately dismissed. It was held therein that the disputed land was not part of premises no. 227 and the Association cannot object to the construction of the boundary wall. Statutory appeal was filed before the Municipal Building Tribunal (MBT in short). It was argued on behalf of the Association that in the building plan sanctioned by KMC 5 for construction of the building at premises number 227 of Acharya Jagadish Chandra Bose Road the relevant space measuring 700 sq. meters was shown as car parking space for the residents of the building. In this regard, the Association relied on an affidavit of KMC filed in connection with Writ Petition No. 622 of 2003.The MBT held that the disputed land could not have been shown as car parking space at the relevant time since at that time the land was under
acquisition process of the ULC department and that was under the Department's possession. The Association challenged such order of the MBT by filing WPO no. 492 of 2017, and the Writ Petition no 992 of 2015 was filed by Association challenging the attempt by KMC to mutate the said 700 sq. meters of land in the name of concerned persons and WPO 990 of 2016 was filed by the said Association challenging the mutation of the disputed land done by the KMC in favour of City Enclave by numbering the disputed land as 227A AJC Bose Road, Kolkata.
Therefore, from the above factual matrix it appears that the appellants are claiming the subject 700 square meters of land as car parking space for the flat-owners of the relevant multistoried building whereas the respondent no 6 is claiming that it had purchased the land from Jenny Christiansen for valuable consideration 6 Observation of the learned Single Judge The learned judge disposed of the three Writ petitions being number WPO no. 992 of 2015, WPO No. 990 of 2016 and WPO No. 492 of 2017, by a common judgment and order, The learned Judge recorded brief outline of the three petitions in para 4 of the judgment which may be quoted hereunder:
"4. In WP 492 of 2017, the petitioners have challenged a final order dated 24 May, 2011 as well as the order dated 6 April,2017 passed by the Municipal Building Tribunal in Appeal No.83 of 2004 which relates to construction of a boundary wall. In WP 990 of 2016, the petitioners have challenged an order of mutation dated 5th July, 2016 passed by the Chief Manager Revenue (South), Kolkata Municipal Corporation with respect to 700 square meters of land in respect of the premises. In WP 992 of 2015, the petitioners have challenged the mutation granted in respect of the premises."
The learned Judge has come to the finding, inter alia, that there is no mention of the premises or any portion thereof in the deeds of conveyance executed in favour of the members of the Association, as car parking space and the Memorandum of Association of the 7 Petitioner no.1 also supports such factual finding. Moreover the petitioner Association is not a juristic person nor a person aggrieved by any action of the respondents against it. However, as the parties extensively argued before the learned Judge on merits of the relevant issues, the learned Judge decided to deal with the issues on merits instead of disposing of the same only on the point of locus standi of the petitioners. Accordingly the learned Judge held :
"13. In W.P No 492 of 2017, I find that the subject matter of challenge is a final order passed by the Learned Municipal Building Corporation dated 24 May 2011 and 6 April 2017 respectively. I have also perused the impugned orders in W.P No 492 of 2017. I find that there is no reason whatsoever to interfere with the orders dated 24 May 2011 or 6 April 2017 passed by the Building Tribunal. I find that the impugned orders are reasoned orders and consider all the relevant facts and circumstances of the case. There is no illegality, irrationality nor perversity nor unreasonableness warranting any interference with the impugned orders. In the order dated 24 May 2011, it has been held that, the petitioners had failed to produce any purchase deed which would demonstrate that the premises was shown to be included in any portion of the building plan. I also find from the order of the Special Officer (Building) and the Building Tribunal dated 18.10.2003 and 24.05.2011 respectively that, the premises was specifically excluded from the sanction plan. It has been also observed in the said orders that the building plan 8 relied on the petitioners was fabricated as the premises was at the relevant time under the control of the Urban Land Ceiling Authorities. I also do not find any procedural impropriety warranting any interference with the impugned order. Hence, I find no reason to interfere with any of the impugned orders.
14. Accordingly W.P No 992 of 2015 along with IA No. G.A./1/2015 (Old No. GA/3088/2015) and GA/2/2018 (Old No.GA/1540/2018), W.P No 990 of 2016 along with IA No. G.A./1/2018 (Old No. GA/1543/2018) and W. P No 492 of 2017 along with IA No. G.A./1/2018 (Old No. GA/1541/2018) are dismissed. However, there shall be no orders as to costs."
Submission from the Bar Anandalok Welfare Association
1. Learned Senior Advocate, Mr. S. N. Mitra has strenuously argued that from the affidavit-in-opposition( page 158) filed by the KMC in WP no. 622 of 2003 it would appear that the disputed land was shown as car parking space at the time of sanctioning plan for the multistoried building and further, Anandalok's deep tube well was there. Therefore, in the said petition complaint was made with regard to the construction of boundary wall enclosing the 700 sq. meters of land unauthorizedly. On 23/06/2003 the writ petition was disposed of 9 with some directions. A demolition proceeding in respect of the said boundary wall was started before the Special Officer (Building), KMC who held the said boundary wall to be authorized and being aggrieved, Anandalok preferred a statutory appeal before the Municipal Building Tribunal (MBT) but the said appeal was dismissed.
2. According to the learned counsel, the MBT had no authority to say that the sanctioning of the plan was illegal. The ULC Department could not be in possession of the land in question since though the transfer of land in excess of the ceiling limit was restricted under section 5(3) of ULCER act 1976, there was no such restriction on sanctioning of plans. There is nothing on record to show that the procedure under Sections 6, 8, 9 and 10 of the Act 1976 was followed. In fact, there was no vesting of the said space of land.
3. Learned counsel has further drawn the attention of this court to the order dated 14/01/2003 of the Competent Authority holding that there was no excess vacant land and therefore, ULC Department could not have been in possession of the said land as wrongly found by the MBT.
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4. The Association has sufficient locus since the Memorandum of association shows that one of the objects of the Association is to protect its member's interest.
5. Learned counsel of the appellant has drawn the attention of the court to the affidavit- in - opposition filed by the KMC in WP no. 992 of 2015 wherein it was stated on behalf of KMC that the subject property was shown in the sanctioned building plan as car parking space. Moreover, in an affidavit filed on behalf of KMC in connection with Writ Petition no. 622 of 2003, it was averred that KMC sanctioned a building plan showing the vacant land in front of the building to be constructed as car parking space and it was further averred that after construction of the building, some occupants/owners were enjoying the premises along with the open land in front of the building as car parking space according to the sanctioned plan.
6. Learned counsel of the appellants has argued that in WPO No. 990/2016, the KMC did not deny the Association's case. On the other hand it reiterated its statements that it had made in its affidavit filed in Writ petition 622 of 2003. Learned counsel further argued that the Association was using the disputed land for a long period and the erstwhile owner Jenny obtained an injunction order which was later 11 vacated and thereafter Jenny withdrew the suit and therefore, the successor-in-interest cannot complain now. Further the sanctioned plans have not been disputed.
7. There are, according to the learned counsel of the Appellant, sufficient materials from which it can be shown that the subject property is not only being used as car parking space for a considerable period of time but it can also be shown that a deep tube well exists thereon, and water lines of the building pass through the subject land after obtaining necessary sanction from KMC.
8. According to the learned counsel of the Appellant, the above points were not considered by the Special Officer (Building) KMC, nor by the MBT or the learned Single Judge.
City Enclave
9. Mr. Anindya Mitra, learned Senior Counsel appearing on behalf of City Enclave being the respondent no.6, has submitted that the building plan was sanctioned in 1986 and at that time no sanction was taken for a deep tubewell. Anandalok took over maintenance from 26/6/1998 and relied upon the receipt for water service of the year 1998, without showing that any permission was taken therefore. At 12 that time Jenny was not in the picture. Therefore, the deep tube well was not sunk by Jenny but by Anandalok. The sanctioned building plan of 1986 shows deep tube wells, water lines etc., but not on the disputed land. Respondent no. 6's contention in its affidavit- in- opposition in GA 2/2022 was not denied in the affidavit-in-reply.
10. The learned Senior Counsel further argued that the averments made in paragraphs 3 and 4 of WPO 990 of 2016 completely demolish the case of Anandalok. The letter dated 21.01.1984 of the ULC Department has been suppressed. The Association has no right in respect of disputed land. The relevant Deeds of Conveyance exclude the 700 square meters of land and Anandalok was fully aware of the acquisition proceedings as would be evident from paragraph 19 of Writ Petition 990 of 2016.
11. It was further argued with reference to APO 28, vol. 5, pg 590, that the ULC, being the Competent Authority, issued an order that there was excess vacant land of 579 sq. meters. Jenny challenged such order and the same was remanded to the said competent authority which by order dated 14/01/2003 held that there was no excess vacant land.
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12. In the notes of argument submitted before the learned Single Judge, Anandalok admitted that it had no private right in respect of 700 sq. meters.
13. Admittedly, Anadalok has put water pipelines under the disputed land and sunk deep tube wells thereat. There is no dispute regarding title of the said land as the land belongs to City Enclave. Anandalok has to undo the wrong of installing water pipelines beneath the said land.
14. Drawing attention to page 139 of APO 28/2022, learned Senior Counsel argued that the writ petition filed by the Association was not on behalf of the members nor the same was filed in a representative capacity, and therefore, Anandalok has no locus to file the same. It does not own any flat nor the said 700 sq. meters of land. In this regard, learned Single Judge's observation in CO No. 3384 of 2019 ( page 753 of APO 28, para 52) was referred to wherein it was stated that purchase deed was not challenged by Anadalok, and therefore, if the Anadalok has no legal right , no proceeding is legally maintainable. Entire purchase deed has to be accepted, not a part of it.
15. In support of his contention, learned Senior Counsel has relied on the following judgments:
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i. Unreported judgment dated 27/04/2022 in FMA 701/2021(Natural City Flat Owner's Welfare Association V. The State of West Bengal & Ors) ii. AIR 1969 Cal 149, para 8 (Director General Ordnance Factories Employees' Association v. Union of India and Director general Ordnance Factories) iii. (2010) 3 CHN (CAL) 755 paras 3 & 13 (Sha-San Infrastructures Pvt.
Ltd V. Thakur Corner Byabsayee Samity & ors.) iv. (2003) 2 Cal LT 588 paras 14, 19, 22, 23, 32, 34 (Smt. Rinkoo Mitra V. State of West Bengal & Ors.) v. (2013)5 SCC 470 paras 15, 16 (Rajasthan State Industrial Development and Investment Cooperation and Another V. Diamond & Gem Development Corporation Limited & Another) vi. (2003) 6 SCC 230 para 28 (Dwarka Prasad Agarwal (D) By LRS. And Another V. B.D. Agarwal and others) vii. AIR 1951 SC 41 para 7 (Charanjit Lal Chowdhury V. The Union of India & others) viii. AIR 1990 Cal 176 paras 5, 13, 14, 15 (Sand Carrier's Owner's Union and Others V. Board of Trustees for the Port of Calcutta and others) 15 ix. AIR 1977 Cal 437 para 4 (12, I.C. Bose Road Tenants' Association V. Collector of Howrah & ors) Kolkata Municipal Corporation
16. Learned Counsel for the KMC, Mr. Biswajit Mukherjee, has argued that the boundary wall is not "building" under the KMC Act 1980, and therefore no sanction is required. There is a registered deed of conveyance with regard to 700 sq. meters of land in favour of the respondent no. 6 but that deed was not challenged. Mutation was allowed in favour of the respondent no. 6 without deciding any title thereto. The process of mutation is undertaken to identify the person who is in possession of the property so that collection of municipal taxes can be facilitated. The writ petition with regard to title is not maintainable.
Replies:-
Anandalok
17. In reply, learned Senior Counsel of Anandalok Mr. S.N.Mitra argued that the money receipt for water service at page 83 of the paper book in APO 29 of 2022 presupposes that KMC granted permission to install deep tube wells and therefore, deep tubewell was allowed to be 16 sunk by Anadalok. Now, if the said tube well is sought to be removed, the Association's right would be affected, and as such the action taken by the Association is maintainable. Regarding locus of the Association, the learned Counsel referred to the decisions reported in (2021)10 SCC 1 (Supertech Limited Vs. Emerald Court Owner Resident Welfare Association and Ors.) (paras 38, 38.1, 155) (Twin Towers), an unreported judgment of Hon'ble Madras High Court passed on 20/01/2023 (Abbotsbury Owners' Association Vs. The Member Secretary, Chennai Metropolitan Development Authority & Ors.) (Paras no 17 to 27) and (2020) 20 SCC 698 (Anjuman E. Shiate Ali & Anr. Vs. Gulmohar Area Societies Welfare Group & Ors.) (paras 22, 25).
18. It was also argued on behalf of the Appellants that in the first writ petition, the point of maintainability was not raised by Jenny, and now Jenny's successor is estopped from raising it.
19. Learned counsel relied heavily on the following decisions :
i. AIR 1984 Allahabad 46 paras 23, 50 (Umesh Chand Vinod Kumar & others V. Krishi Utpadan Mandi Samiti, Bharthana & another) 17 ii. (2006) 3 Mad LJ 31(Vellakoil Vattara Vari Seluthuvor Nalvalvu Sangam V. The State of Tamil Nadu And others) iii. (2009) 16 SCC 1 paras 49, 53 (Steel Authority of India Limited V. Sutni Sangam and others) iv. APO 28- vol.1 pg 30 Writ Petition para 10, 11, 12 -KMC didn't file affidavit-in-opposition v. (2021) 10 SCC 1 para 38.1, 155 (Supertech Limited Vs. Emerald Court Owner Resident Welfare Association and Ors.) vi. (2003)2 Cal LT 588, para 4 ( Smt. Rinkoo Mitra V. State Of west Bengal & others) vii. (2013)5 SCC 470 (Rajasthan State Industrial Development and Investment Corporation & another V. Diamond & Gem Development Corporation Limited & another) viii. (2003)6 SCC 230 (Dwarka Prasad Agarwal (D) By LRS. And Another V. B.D. Agarwal and others)
20. Learned Counsel of the appellants submitted that the affidavit dated 25/1/2023 discloses that two building plans were obtained. One of such plans is with regard to the roof and basement and the same was procured from the Central Record Section as per Affidavit but on the reverse side of it, it was described as the "office copy" but where are the signatures ? The deponent who affirmed KMC's affidavit dated 18 25/01/2023 is not the custodian of the record and therefore, he cannot say that the original is not available. The Central Record Section should have the original.
21. Mutation was granted to respondent no. 6 in March 2020 and coming to know the said fact, Anadalok made representation to KMC for granting hearing and as there was inaction, a Writ petition was filed. As the Respondent no. 6 obtained a sanctioned plan, representation was submitted to the Municipal Commissioner but as there was inaction the present writ petition was filed.
22. The learned Counsel for the appellants further argues that water line was taken with the permission of Jenny.
23. By referring to the conveyance deeds executed in favour of the flat owners, the learned counsel pointed out that in case of conflict between habendum clause and schedule, the latter prevails. He cited the decisions reported at AIR 1979 Cal 50 (para 5) (M/s Roy and Co. & another V. Smt. Nani Bala Dey & others) and (2006) 5 SCC 466, (Subhaga And Others V. Shobha & Others) in support of such submission.
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24. The appellants' learned Counsel strenuously argued that Anandalok's application under section 397 of the KMC Act should have been disposed of on merits. The case laws reported in 2016 SCC online Cal 1172, (Prabir Ranjan Basu V. KMC & Ors), (2016) SCC Online Cal 6764, (Prabir Ranjan Basu V. KMC), the unreported order dated 26/07/2021 in WPO 252 of 2021; equivalent citation (2021) SCC Online Cal 2145, (Tarak Roy V. KMC & Others) have been cited from the end of appellants.
City Enclave:-
25. Countering the argument of the appellants, the respondent no 6 submitted that Jenny never gave permission to the appellants to park cars on the disputed plot. There is no document in support of such a plea. The plan produced by the appellants shows car parking space, whereas the plan produced by the KMC does not show any car parking space on the concerned 700 sq. meters of land. The flat owners have fabricated the plan to show commercial purpose.
26. It was further argued by the learned counsel of the Respondent no.6 that the plan produced by the respondent no.6 and KMC are the same. No argument was advanced before the learned Single Judge that 20 the plan submitted by the respondent no. 6 is incorrect. No ground of appeal is taken that the learned Single Judge omitted to record any of the submissions of the appellants. A new point is being raised in the appeal and the same is impermissible.
27. Learned Counsel further submitted that the appellants' acts of fabrication of documents were found at least on three occasions. Firstly, from the certified copy of conveyance and the plan it is found that the plan was sanctioned in 1986 and the building was purely residential whereas the plan submitted by the appellants show that it was commercial. Secondly, the plan produced by the appellants show B+G+7 storied building but it was actually B+G+5. Moreover in Title Suit 2313 of 2008 at Alipore Court the appellants admitted in the plaint that 700 sq. meters of land were under acquisition process. In APO 28/2022 vol.4 pg 345 (stay petition), para 5, the appellants admitted that the proposed building was of 5 floors. Thirdly, the claim of the appellants regarding car parking on open space is belied by the Executive Engineer's report dated 15/02/2010 (APO 28/2022 vol.5 pg 524 ).
28. Referring to the Order passed by Hon'ble Justice K.J. Sengupta in Writ Petition no.622 of 2003, the learned Counsel argued that the 21 learned Judge did not rely on KMC's officer's affidavit stating the disputed land was shown as car parking space and the learned Judge referred back the matter to KMC. Therefore, the appellants now cannot rely on that affidavit filed by the KMC.
29. It was also contended that in the appeal before MBT, no ground was taken on behalf of the appellants that 700 sq. meters was not under acquisition process.( MBT's order APO 28 of 2022 pg 511 )
30. The learned counsel further submitted that one is bound to produce originals of documents annexed to the pleadings. In this regard, the provisions of Order 11, Rule 15 Code of Civil Procedure have been placed before us. According to the respondent no. 6, the appellants are bound to produce the original deeds of conveyance and written permission from KMC to sink deep tube wells. Rule 53 of Writ Rules and also Section 141 Code of Civil Procedure have been referred to as making the provisions of the CPC applicable to writ proceedings.
31. Notice to produce such documents were duly given and this court passed necessary orders, but the same was not complied with. Order 11, Rule 21 Code of Civil Procedure deals with the situation when there is non-compliance with the order of discovery. 22
32. It was categorically submitted by the learned counsel of respondent no 6 that the appellants' argument that Jenny laid water pipelines for Anandalok under the disputed land is incorrect. The water line is under the driveway outside of the disputed 700 sq. meters. The plan annexed to conveyance and the plan produced by the KMC would show that.
33. In the written notes of argument the appellants before the learned Single Judge took the plea (paras 2-5) that ULCRA authorities contemplated acquisition of 700 sq. meters which was to be kept vacant (para 15). There was an admission on the part of the appellants that 700 sq. meters was not a part of conveyance. Now, appellants cannot argue to the contrary. A decision has been cited in Mahamaya Paul Vs. Dipak Kumar Mukherjee & Ors. reported at MANU/WB/0881/2012.
34. The plea that deep tube wells and water connection etc., were laid under the 700 sq, meters of land by Jenny is a new plea and also factually incorrect.
35. The building plan sanctions deep tubewells in places other than 700 sq. meters and therefore a separate license is not necessary. 23 Under section 195(1) of KMC Act, 1980 water pipe lines are part of the building plan.
Re-replies
36. The learned counsel of the Appellants reiterates that the executive engineer was not the custodian of the documents. The Municipal Commissioner, being the custodian of all documents of KMC, should have produced the plan. Appellants have disclosed whatever copy they have. The KMC never took the plea that the original was misplaced.
Court's view:-
37. The sole and important point which revolves round the entire gamut of the dispute is whether the 700 sq. meters of land in front of the building "Anandalok '' at 227 A. J.C. Bose Road is part and parcel of the said premises and the owners and occupiers of flats in the said building were using it as car parking space authorizedly or not.
38. The appellants claim that it is a part and parcel of the multistoried building called 'Anandalok' and the owners of the flats were using the same as car parking space. Further, the deep tubewell 24 of the said building was allowed to be sunk in the said 700 sq. meters of land and the KMC has been receiving the charges for such water services. Therefore, the alleged sale of the 700 sq. meters of land to the respondent no. 6 is illegal and bad in law. The 700 sq. meters of land was initially under acquisition process but subsequently it was released from such acquisition process. As soon as it was released, it again became part and parcel of the said building.
39. The respondent no. 6, City Enclave has, on the other hand, submitted that the said 700 sq. meters of land was never a part and parcel of the multistoried building called 'Anandalok' and the Tube well sunk in the said 700 sq. meters of land was at the instance of the appellants in violation of the provisions of the KMC Act. At the time of sanctioning the building plan the tubewell and water pipelines were allowed to be installed in respect of the said premises at spaces other than the 700 sq.m. of land. It was also argued that the 700 sq. meters of land was never permitted by Jenny to be used as car parking space for the flat owners of the Anandalok building. After the release of the land from the acquisition process, Jenny sold the land measuring 700 sq. meters to the respondent no. 6 in accordance with law and the appellants have no right, title and interest in respect of the land measuring 700 sq. meters.
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40. It is a well settled principle of law that one who asserts a fact has to prove the same in accordance with law. In order to show genuineness of their contentions, the appellants have relied upon one affidavit dated 11.04.2003 filed on behalf of the KMC which admitted that the sanction plan of the year 1986 showed the open space in front of the building as car parking space. The appellants have also relied upon receipts for water service charges in support of their contention that the tube well was sunk in the said 700 sq. meters of land with the permission of Jenny.
41. Needless to mention that the appellants are to prove their case on the strength of their own material and not on the deficiencies of their adversaries. It is also a cardinal principle of law that a fact is to be proved by way of best evidence.
42. To prove that the relevant space has been allotted as car parking space the best evidence are the registered deeds of sale of the concerned flat owners since according to their Association they have been given authority to use the said space as their car parking space. Unfortunately the original deeds of the flat owners have not been produced before this court. It is also pertinent to mention that the recital as well the schedule to the copy of such deeds of flat owners 26 have clearly shown that the said 700 sq. meters of land was excluded from the schedule to the property as the same was under the process of acquisition. If that be so, it is difficult to believe that the makers of the deed have given authority to the flat owners to use the said 700 sq. meters of land as car parking space.
43. The appellants have further failed to show that any permission was obtained from the KMC to sink the tubewell in the 700 sq. meters of land at the relevant point of time. The appellants' reliance upon receipts for water service charges cannot prove that KMC had given authority to the Anandalok Welfare Association to sink tubewell in the said 700 sq. meters, knowing fully well that it was under acquisition process. It is found from the materials on record that the tubewell and the water pipelines were also found in other portions of the building and some other concerned persons are using such water pipelines and tubewell for their benefits.
44. The appellants have relied upon some statements made on behalf of the KMC in its affidavit-in-opposition filed in writ petition No. 622 of 2003 on 11.04.2003. The relevant portions are quoted herein below:-
"Before dealing with the allegations and contentions made in the different paragraphs 27 of the said petition I state the following facts:-
a) The C.H.C. authority sanctioned a building plan being R.S. No. 144 to the owner of the premises No. 227, A.J.C. Bose Road, Calcutta on 08.02.1986 and the said plan was taken sanctioned showing the vacant land in front of the building to be constructed would be the car parking space.
b) After the sanctioned of the building plan the owner through the promoter company the respondent No. 6 above named have completed the constructions of the building and the building is occupied by some other persons who have purchased the flats from the owner and are enjoying the premises along with the open land in front of the building as car parking space according to the sanctioned plan.
c) By a letter dated 21st March, 2023 addressed to the Executive Engineer (Civil) by the respondent No. 8 Ganpat Lal Agarwalla intimated that he had started construction of boundary wall in his premises No. 227 A.J.C. Bose Road, Kolkata - 700 020, in accordance with the rules and regulations of the Kolkata Municipal Corporation. Subsequently, by a letter dated 24th March, 2003 addressed by Neeline Chatterjee, Advocate to the commissioner, the Kolkata Municipal Corporation the respondent No. 3 was informed that on 22nd March, 2003 at early morning around 7:30 A.M. a group of workers under the direction of the respondent no. 6, 7 and 8, Directors of the respondent No. 6 started building of a boundary wall in the common open space in front of the building being premises No. 227, A.J.C. Bose Road, Kolkata - 700 020, comprising of an area 700 sqm approximately. On receipt of the said 28 complaints in writing the Director General Building, KMC directed the Executive Engineers (Civil) Building/Borough - VIII to enquire into the matter and to submit a report in this regard thereto.
Copies of the said letters are annexed hereto "R-1" and marked collective with the letter R-
13"
d) On 27th March, 2003 sub-Assistant Engineer (c) inspected the premises No. 227, A.J.C. Bose Road, in Ward No. 69, Kolkata and filed a report before the Assistant Engineer (Civil) and asked for further orders during the said inspection it was inter alia found that open land in front of the aforesaid building have been covered by erection of 125 m.m. brick wall within 1 wire although the said vacant land and/or open space was shown as car parking space at the time of sanction of building plan. The said construction of boundary wall has been done by the person responsible viz, Mr. k.K. Podder and Mr. D.L. Agarwalla, the respondent no. 7 and 8 the Direction of M/s.
Jenny Christians (S.A.) Ltd. the respondent no. 6 and all the aforesaid works were already completed and no works were then in progress. ......"
45. It is true that by such an affidavit the KMC had taken the stand that the 700 sq. meters of land was shown as car parking space for the owners of flats in the said multi-storied building. In several other affidavits in subsequent proceedings the said statements were reiterated by the KMC personnel.
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46. Now if we go through the order passed by this court on 23.06.2003 in WP No. 622 of 2003 we shall find that the contention of such affidavit was challenged from the side of the respondents and the Hon'ble Court has recorded the same in the dictated order. The said order is quoted herein below:-
"The writ petitioners made a complaint to the Corporation Authority alleging unauthorised construction in the form of conversion of user of a certain portion of the building. Pursuant to the complaint, as it appears from the affidavit-in-opposition, the appropriate department of the Municipal authority has taken action. They have decided to start demolition case.
In view of the statements and averments made by the Corporation authority. I direct them to take appropriate measure Initiating a demolition proceeding in accordance with law and desire that this should be completed by the appropriate authority within a period of 8(eight) weeks from the date of communication of this order. Notices of hearing be given by the appropriate authority upon all the parties including the writ petitioners.
It is submitted by Mr. Bhattacharjee that the statement and averments made by the Officials of the Corporation authority in relation to the sanction of the building plan are not correct and false statement has been made. Such submission is denied and disputed by Mr. Bose, appearing for the Corporation authority. It would be open for the parties to take steps in accordance with law....."30
47. Therefore, the correctness of such affidavit-in-opposition is doubted and the respondent no. 6 or its predecessor raised objections against such statements made in the affidavit-in-opposition from the side of the KMC. An admission can be of enormous help if it is clear, spontaneous and without any ambiguity. As the statements of the KMC have been denied and disputed from the side of the respondent No. 6 or its predecessor-in-interest, I do not think that such affidavit- in-opposition can be of any help to the appellants herein. Furthermore, the alleged admission of the KMC, if any, cannot bind the respondent no.6, since it is clear that neither the respondent no. 6 nor its predecessor at any time admitted the alleged factual aspects averred in the relevant affidavits of the KMC.
48. The best material for showing that the relevant area was allotted as car parking space for the flat owners of the said multi- storied building, namely Anandalok, is the sanctioned plan of the said building which is of enormous importance. But unfortunately neither the appellants nor the KMC have been able to produce the original sanction plan of the building or the original deeds of conveyance of such flats. It is true that certified copies have been filed from the side of KMC which go against its own statement made in the affidavit-in- opposition dated 11.04.2003 in connection with writ petition no. 622 31 of 2003 since it does not show that 700 sq.m. was allotted as car parking space. As only a certified copy of such plan was produced, it was rightly submitted from the side of the appellants that the KMC authority should have produced the original plan from the Central Record of the KMC but the same was not done for the reasons best known to the KMC authority. There is nothing on record to show that the respondent no. 6 resisted production of the original of the sanctioned plan.
49. I again say at the cost of repetition that it is not on the deficiencies of adversaries but the appellants are bound to prove their case on the strength of their own materials. Unfortunately the appellants have failed to produce any original deed along with a plan showing that the relevant space was allotted as car parking space of the flat owners.
50. For production of original documents from the side of the appellants, the respondent no. 6 issued notices under Order 11 Rule 15 of Code of Civil Procedure. In spite of such notices of production the appellants failed to produce the original deeds of the respective flat owners before this court. Now let us recapitulate the provisions of Order 11 Rule 15 of the Code which is hereunder:-
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R. 15. Inspection of documents referred to in pleadings or affidavits. - Every party to a suit shall be entitled [at or before the settlement of issues] to give notice to any other party, in whose pleadings or affidavits reference is made to any document, 2[or who has entered any document in any list annexed to his pleadings.] or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof, and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit."
51. Order 11 Rule 21 of the Code has also laid down the provisions for non-compliance of order directing discovery of documents as laid down in Rule 15 of the said order. The provision of order 11 Rule 21 is as hereunder:-
"R. 21.Non-compliance with order for discovery. - (1)Where any party fails to comply with any order to answer inter- ogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not 33 defended, and the party interrogating or seeking discovery or inspection may apply to the Court for [an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard].
[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]"
52. . The order dated 01.05.2023 shows that as per notice under Order 11 Rule 15 of the Code filed by the appellants we directed the appellants to produce the original of the sanctioned plan as well as original deeds of conveyance of the respective flat owners. The appellants did not comply with such direction of this court. 52.1. The order dated May 1, 2023, recorded by this court is as follows:-
" Mr. Surajit Nath Mitra, learned Senior Advocate, assisted by Mr. Nirmalya Dasgupta, learned advocate, concludes argument on behalf of the appellants.
Mr. Anindya Kumar Mitra, learned Senior Advocate appearing for the respondent no.6 in APO/28/2022 & APO/29/2022, begins his argument but does not conclude.34
List these matters once again on May 2, 2023, for further hearing.
By May 3, 2023 the appellants shall produce the plan referred to in the Second Schedule to the standard format of Conveyance which was executed in favour of the members of the appellant Association."
52.2. We further recorded an order dated May 3, 2023 as herein below:-
" By our order dated May 1, 2023, we directed the appellants to produce the plan referred to in Second Schedule to the standard format of Conveyance, which was executed in favour of the members of the appellant Association.
Today, Mr. Dasgupta, learned Advocate for the appellants says that original conveyance is not available with his client. Certified copy has been applied for. It is likely to take approximately 12 working days to obtain such copy.
We record such submission.
Mr. Anindya Kumar Mitra, learned Senior Advocate representing the respondent no.6 in APO/28/2022 & APO/29/2022, resumes his argument but does not conclude.
List these matters once again on May 4, 2023, for further hearing."
53. Without giving importance to such direction, the appellants insisted that original of the sanction plan should be produced from the central records of KMC. The appellants did not give any credence to 35 the certified copy of the plan produced from the side of the KMC after being certified by the Executive Engineer (Civil) on the ground that it is not the Executive Engineer but the municipal commissioner of KMC who is the custodian of all documents and therefore production of copy of the sanction plan certified by the Executive Engineer is bad in law.
54. As the direction of this court was not complied with by the appellants, the respondent no. 6 took out an application under Order 11 rule 21 of the Code of Civil Procedure, 1908. The relevant order dated June 19, 2023 of this court is as hereunder:-
"An application has been taken out on behalf of respondent no.6 for dismissal of the appeal in terms of the provision of Order XI Rule 21 of the Code of Civil Procedure for non-production of certain documents by the appellants.
The appellants wish to file affidavit-in- opposition.
Let affidavit-in-opposition be filed by Monday (26/06/2023) with advance copy to learned advocate on record for the respondent no.6.
Learned advocate for the respondent no.6 says that no reply need be filed to such affidavit-in-opposition.
List these matters once again on June 26, 2023."36
55. The appellants filed affidavit-in-opposition against the petition under Order 11 rule 21 of the Code filed by the respondent no. 6 and thereafter this court passed an order on 1st August, 2023 as hereunder:-
" We have heard learned counsel for the parties on the application for dismissal of the appeals being GA/2/2023.
It will be in the fitness of things to dispose of this application along with the appeals.
List these matters once again on August 8, 2023, for Mr. S. N. Mitra, learned senior advocate to make his concluding submission in these appeals."
55. As we proposed that the said application under order 11 rule 21 of the Code shall be taken up at the time of disposal of the appeals, we are inclined to dispose of the same right now.
56. It appears from the said petition filed by the respondent no. 6 that the appellants have failed to comply with the orders dated 17th November, 2022, 16th January, 2023, 1st May, 2023 and 3rd May, 2023 by producing the relevant documents or allowing the respondent no. 6 to inspect the documents mentioned therein and therefore, the appeals are liable to be dismissed.
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57. We have gone through the said orders as referred to above and we found that by order dated 17th November, 2022 the appellants were directed to produce the original of the document at page 83 of the paper book numbered in APO 29 of 2022 which appears to be a Xerox copy of a deep tubewell plan. By order dated 16th January, 2023,the appellants were directed to disclose the original of the copy of the sanctioned plan, copies whereof have been enclosed by the appellants to their pleadings. The directions contained in orders dated 1st May, 2023 and 3rd May, 2023 have already been mentioned hereinabove. However, even at the cost of repetition we would like to say that by order dated 1st May, 2023 the appellants were directed to produce the plan referred to in the second schedule to the standard format of conveyance which was executed in favour of the members of the appellant-association. By order dated 3rd May, 2023 the Court recorded the submission of the learned counsel of the appellants that original conveyance is not available with his client and certified copy has been applied for.
58. Therefore, from the above it appears that the directions as reflected in the orders as aforesaid have not been complied with. However, before coming to the conclusion on this point we have to look into the contents of the affidavit-in-opposition filed by the appellants 38 against the petition under order 11 rule 21 of the Civil Procedure of Code filed by the respondent no. 6. In the said affidavit-in-opposition the appellants have taken a legal point that in the Original Side Rules of this Court, there is no provision which has made the provisions of Civil Procedure Code applicable to writ proceedings. In my opinion, when the High court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a speedy and efficacious remedy to a person whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in C.P.C are to be applied to a writ petition, the very object and purpose of exercising extraordinary jurisdiction is likely to be defeated. It is also averred in the said affidavit that by an order dated 31st October, 2022 this Court directed the KMC to produce the original plan and also the inspection book in relation to the said premises but till date the said order has not been complied with by providing the original plan. It is also contended that the documents which the respondent no. 6 has referred to in the present case is not expected to be proved in original or to be produced in original before this Court. It is further contended that the present proceeding is not a suit and, therefore the statement of the KMC that the said plot of land being 700 sq. meters has been sanctioned along with a plan relied upon by the appellants, being an 39 admission on the part of KMC, the same shall be the best piece of evidence.
59. After considering the allegations and counter-allegations of the parties on this point I reiterate that the writ court cannot go into the complicated factual disputes between the parties but the writ court can certainly ask the parties to produce documents on which they are placing reliance. As the original deed of conveyance along with sanctioned plan are in the custody or presumed to be in the custody of the flats owners of the multi-storied building under the name and style Anandolok, the Court can ask the concerned persons to produce those documents before the court since they will help and assist the court to adjudicate the matter without any complications. Technicalities cannot be allowed to occupy the driver's seat on this point since there is no acceptable reason as to why the writ court cannot go through the original documents of the parties for coming to a proper conclusion, particularly when there are some confusions over the certified copy. The Original Side Rules do not prevent the High Court exercising writ jurisdiction from looking into the original documents of the parties, if necessity arises. It appears that appellants are not ready to accept the simple way of showing strength of their case before the court exercising high prerogative writ jurisdiction. 40
60. The learned counsel for the respondent No. 6 has relied upon several case laws reported at AIR 1969 Cal 149 (Director General Ordinance Factories Employees' Association Vs. Union of India and Director General Factories), AIR 1951 SC 41 (Charanjit Lal Chowdhury Vs. The Union of India &Ors.), AIR 1990 CAL 176 (Sand Carrier's Owners' Union & Ors. Vs. Board of Trustee for the Port of Calcutta &Ors.), (2010) 3 CHN 755 (Sha-San Infrastructures Pvt. Ltd. Vs. Thakur Corner Byabsayee Kalyan Samity & Ors.), AIR 1977 CAL 437 (Bose Road Tenants' Association Vs. Collector of Howrah &Ors.), (2005) 10 SCC 760 (Church of North India Vs. Lavajibhai Ratanjibhai & Ors.), (2006) 4 CHN 311 (Asis Dutta &Ors. Vs. State of West Bengal &Ors.) and two unreported decision one in FMA No. 701 of 2021 and CO No. 3384 of 2019 in support of his contention that association of flat owners has got locus standi to establish title or right in respect of the 700 sq. meters of land being premises no. 227A A.J.C. Bose Road, Kolkata and further there are distinctions between rights as a collective body and the rights of its members.
61. To counter the above submission the appellants have relied upon the Memorandum of Association wherein it is stated that one of the objects of the Association is to protect the members' interest therein. According to the learned counsel for the appellants the 41 Association has, therefore, sufficient locus to bring legal actions on behalf of its members. It was also contended that if the deep tubewell which was sunk in the said 700 sq. meters of land is allowed to be removed it will cause prejudice to the rights of the Anandalok Welfare Association and therefore the Association has legal right to resist such attempt.
62. I have gone through the above case laws and it appears from AIR 1969 Cal 149 (Director General Ordnance Factories Employees' Association Vs. Union of India and Director General Ordnance Factories) that in para 7 & 8 it has been observed hereunder:-
"In cases where the right of a collective body to bring proceedings under Article, 226 is challenged, two questions have to be answered:-
(a) Is the Petitioner a legal entity or otherwise permitted by statute to initiate legal proceeding in its own name?
(b) Has it been affected by the Impugned order as a collective body?
(a) So far as the first question is concerned, it is patent that a legal proceeding may be maintained only by an individual or other body which is recognised as a legal person.
8. In the case of a body incorporated by law, the corporate body acquires a illegal personality of itself and is as such entitled to maintain legal proceedings. But an unincorporated association has no legal personality and it is nothing but an aggregation of its members who can only 42 bring legal proceedings in their individual capacity. Even when all of them are affected by an official act, they can challenge that only if all the members join in the proceedings by name; the association, in such a case, cannot maintain an application under Article 226 or other legal proceeding, in its own name, as has been established by a number of decisions (Indian Sugar Mills Assocn v.
Secy, to Govt. U.P. Labour Dept., AIR 1951 All 1 (FB); General Secy. Eastern Zone Insurance Employees' Assocn Vs. Zonal Manager, Eastern Zone Life Insurance Corporation. AIR 1962 Cal 45) and even registration under the Societies Registration Act cannot confer this right (Bangalore District Hotel Owners' Association v. District Magistrate, Bangalore. AIR 1951 Mys 14"
63. It is also observed in paragraph 14 as hereunder:-
"Even where an association is permitted by law to bring a legal proceeding it can bring an application under Article 226 only when its rights as a collective body as distinguished from the aggregate rights of its members are affected by the act challenged in the proceedings (Chiranjit Lal v. Union of India. AIR 1951 SC 41; Govt Press Employees' Assocn. V. Govt. of Mysore, AIR 1962 Mys 25; Barrackpore Bus Syndicate v. Serajuddin. AIR 1957 Cal 444, e.g., where it is already a party to the impugned order, as in AIR 1951 Cal
255)."
64. In AIR 1951 SC 41 in para 7 it has been observed that for a wrong done to a company's properties, its shareholders, since they do 43 not have any legal right in such property, have no locus standi to approach the writ court.
64.1. In this connection it is very pertinent to note that the point of locus standi was taken before the Learned Single Judge and the Learned Single Judge has been pleased to observe as hereunder:-
"11. It was also contended on behalf of the respondent no.6 that the petitioners have no locus to file these petitions. I find that by an order dated 27 November 2019, & Learned Single Judge of this Court in C.O No 3384 of 2019 had held that the petitioners had no right to file a suit, since the petitioner association was not a juristic person or a person aggrieved by any action of the respondents against it. Significantly, the Special Leave Petition preferred against the order dated 19 November, 2020 had been dismissed. I find that, even though the observations in the order dated 27 November, 2019 were tentative in nature and not-binding, there is much force in this argument. The condition precedent to the grant of any relief under Article 226 is an existence of a fundamental right of a person and the infringement of such right. The right which forms the very basis under Article 226 of the Constitution, is a personal or individual right, 12, I.C. Bose Road Tenants Association Vs. Collector of Howrah and Ors. (AIR 1977 Cal 437), Sha- San Infrastructure Pvt. Ltd Vs Thakur Corner Byabsayee Kalyan Samity & Ors. (2010 (3) CHN 755) and Asis Dutta & Ors. Vs State of West Bengal & Ors. (2006 (4) CHN 311).44
12. However, since the parties have been heard extensively on merits, I deal with the merits of the petition and choose not to dismiss these petitions on the ground of locus standi of the petitioners."
64.2. It appears that the objection taken by the respondent regarding locus standi was not given much importance and the Learned Single Judge proceeded with the hearing of the case without being bogged down by the plea of the respondent no.6 that the Association has no locus standi to file the instant case. Therefore, the objection raised by the respondent no. 6 was disallowed and the Learned Single Judge proceeded to hear the matter on merits. But against such observation or action of the Learned Single Judge, no cross-appeal was preferred by the respondent no. 6, and, therefore, we think it fit to waive the objection of locus standi at this stage.
65. It is found that there is not a single piece of document which shows that Anandalok Welfare Association or its members have been given any right, title, interest or possession over the said 700 sq.m. of land. It is trite law that if there is no legal right of the writ petitioner, then writ proceedings will not lie.
65.1 The appellants' contention that Jenny withdrew a suit after vacation of an injunction order against the appellants shows that the 45 appellants are in possession of the said 700 square meter of land, does not impress us. The appellants, in our view, prefer to rely on indirect materials on record rather than direct materials. There is no direct material to show that the said space was allowed to be used by the members of the Association as car parking space at the instance of Jenny. If the appellants want to say that their alleged long possession over the said space culminated into a title, then they are to bring on record a declaratory decree from civil court to that effect. The Writ Court is not the appropriate forum.
66. It is also found that Anandalok Welfare Association or its members did not challenge the deed of City Enclave by which they had purchased the 700 sq. meters of land. Without bringing any civil suit disputing the title, the Association cannot resist the mutation in the name of the respondent no. 6, by filing a writ petition. It is rightly pointed out that the entire purchase deed has to be accepted and cannot be acted upon in a piece-meal manner. Only specific parts of the said deed cannot be taken into consideration. As the Anandalok Welfare Association has failed to produce the relevant documents showing that the members of the Association were given certain right or title or possession over the said plot of land measuring about 700 46 sq. meters, we do not think we can grant any relief to the appellants as prayed for.
67. Considering all the aspects of the matter we find no legal infirmities or irregularities in the impugned judgment of the learned Single Judge and as such the present appeals being nos. APO 28 of 2022 and APO 29 of 2022 are dismissed. Cross Objections being nos. OCO/1/2022 and OCO/2/2022 are disposed of. Interim order, if any, stands vacated. There will be no order as to costs.
68. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.
I Agree.
(ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)