Calcutta High Court (Appellete Side)
Appollo Gleaneagles Hospitals Limited vs Somnath Chakraborty & Ors on 8 December, 2009
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Ashim Kumar Banerjee
And
Hon'ble Justice Kalidas Mukherje
F.M.A. 2393 of 2005
Appollo Gleaneagles Hospitals Limited vs. Somnath Chakraborty & Ors.
With
F.M.A. 2411 of 2005
State of West Bengal & Ors. vs. Somnath Chakraborty & Ors.
Mr. Jayanta Mitra, : For the Appellants in FMA
Mr. Sumit Talukdar & No.2393 of 2005 & Proforma
Mr. Susanta Kr. Basu Respondent Nos.1,2 & 3 in
FMA No.2411 of 2005
Mr. Bidyut Kr. Banerjee, : For the Writ Petitioner/respon-
Ms. Shila Sarkar dents Nos.1 to 10 in FMA No.2411
Ms. Sulekha Mitra & of 2005
Mr. Avas Roy
Mr. Balai Roy, : For State in FMA 2393 of 2005 and
Ms. Manjari Gupta & for Appellants in FMA No.2411 of
Ms. Runu Mukherjee 2005
Heard on : 23.10.09, 16.11.09, 23.11.09 & 26.11.09.
Judgement on : December 8, 2009
Ashim Kumar Banerjee, J. : These two appeals were heard by us on the above
mentioned dates. Since both these appeals arise out of the same order, both are
disposed of by this common judgment and order.
2. BACK DROP:
2.1 Premises No. 59, Canal Circular Road, Kolkata was owned by one
Narayan Chandra Dutta during his life time. After his demise his heirs
sold and conveyed the said premises to Smt. Tilak Sundari Debi and
Sidhubhusan Mukherjee vide conveyance dated April 6, 1949. The said
premises was a vacant land. After purchase Tilak Sundari Debi and
Sidhubhusan Mukherjee applied for a redemption certificate which was
issued by the then Collector of District 24-Parganas on June 15, 1953. Tilak
Sundari Debi subsequently came to learn that M/s Hindustan Housing
and Development Trust Limited (hereinafter referred to as "Hindustan")
attempted to mutate the said land in their favour on the strength of a
deed of conveyance dated June 15, 1957 executed by M/s Guin Brothers
claiming to be the successor in interest of Sidhubhusan Mukherjee.
2.2 Tilak Sundari Debi filed a title suit being Title Suit No. 79 of 1960, inter
alia, praying for a declaration that Sidhubhusan Mukherjee was her
benamder and had no independent right over the land in question.. Tilak
Sundari Debi prayed for recovery of possession. Tilak Sundari Debi filed
the title suit as aforesaid as against Sidhubhusan and Hindustan. It
transpired from the written statement that there had been a partition suit
in this court in its Original Side being Partition Suit No. 1493 of 1939.
Receiver was appointed in the said suit who sold the premises in question
to one Bijoy Kumar Guin who in turn sold it to Hindustan vide
conveyance dated June 15, 1957.
2.3 Tilak Sundari Debi succeeded in the said suit before the Civil Court proving her
title. Being aggrieved by the decision of the first court Hindustan filed a Title
Appeal being Title Appeal No. 437 of 1964. The First Appellate Court affirmed the
judgment and decree of the first court but held that Tilak Sundari Debi had not
acquired interest independently by adverse possession. Hindustan preferred a
second appeal to this Court being Second Appeal No. 384 of 1967.
2.4 During the pendency of the second appeal M/s Orient Beverages Limited also
known as Orient Properties Limited (hereinafter referred to as "Orient") purchased
the property from Hindustan vide registered deed of conveyance dated November
30, 1967. Orient made a prayer for their substitution in place of Hindustan that was
allowed by this Court. The second appeal was ultimately dismissed by the Division
Bench of this Court by judgment and decree dated July 25, 1986.
2.5 By virtue of the decree of the Civil Court so affirmed upto the second
appellate stage, Tilak Sundari became the absolute owner of the premises
in question. However, during the pendency of the second appeal the
respondent no. 1 in the above appeals, Somenath Chakraborty purchased
a portion of the said premises in question measuring more or less 5 katha
13 chitak 12 sq. ft. from the heirs of Tilak Sundari Debi who died during
pendency of the second appeal, vide registered deed of conveyance
dated November 28, 1985. Similarly the other respondent Debi Prasad
Chakraborty vide conveyance dated November 20, 1985 purchased the
balance portion of the said land in question measuring about 5 katha 13
chitak 12½ sq. ft.
2.6 In view of the sequence of events so narrated the respondents became
jointly entitled to claim ownership of the premises in question measuring
11 katha 10 chitaks 25 square feet.
3. LAND CEILING PROCEEDING :
3.1 With effect from February 17, 1976 the Urban Land (Ceiling And
Regulation) Act, 1976 (hereinafter referred to as the "said Act of 1976")
came in force within the State of West Bengal.
3.2 Since the total area of the land in question was beyond the ceiling limit
under the said Act of 1976 the owner was obliged to submit return under
Section 6 so that appropriate proceeding could be drawn up by the Land
Ceiling Authority to declare the excess land vested in the State after
permitting the owner to retain a portion of the land in question within
the ceiling limit.
3.3 Orient Submitted a return under Section 6 on September 15, 1976. Orient made
an application for retention of the land in question under Section 21 of the said Act
of 1976 that was refused by the authority on September 27, 1986. The authority
prepared the draft statement under Section 8 of the said Act of 1976 and served the
same upon Orient. Orient ultimately agreed to surrender the excess vacant land
vide application dated January 25, 1990 and agreed to have the excess land vested
in the State. The draft statement was made final under Sections 8(4) & 9 of the said
Act of 1976 by the authority on February 1, 1990. Appropriate notification under
Section 10(1) of the said Act of 1976 was issued on February 12, 1990 giving
particulars of the excess vacant land. Such notification was published in Calcutta
Gazette on February 15, 1990 inviting claims/objections from the interested
persons. Since no objection was received from any corner appropriate notification
dated May 4, 1990 under Section 10(3) of the said Act of 1976 was published in
Calcutta Gazette on May 11, 1990 and the excess land became the property of the
State with effect from May 5, 1990. Orient was asked to hand over the possession
vide letter dated May 23, 1990. The General Manager, Orient handed over
possession on May 28, 1990.
4. APPOLLO CHAPTER :
4.1 On June 21, 1991 the State handed over the land in question along with
other adjacent lands to M/s Janapriya Hospital Corporation Limited for
the purpose of setting up a private hospital through a registered deed of
lease for a period of twenty years with option for renewal. The said
hospital authority paid premium to the State for the entire property for a
sum of Rs. 94,41,300.00.
4.2 The Janapriya Hospital was renamed as Appollo Glenegles who set up a
hospital on the entire land in question including the land belonging to the
respondents and is running a hospital there. The lease is going to expire
in the year 2021.
5. PRESENT WRIT PROCEEDING :
5.1 In July, 1993 the respondents filed the instant writ petition, inter alia,
challenging the declaration made in the notification issued under Section
10 of the said Act of 1976 as well as for a declaration that the respondents
were entitled to hold the said land in question as predecessor in interest
of Tilak Sundari Debi.
5.2 The writ petition was moved upon notice to the State. The learned Single
Judge admitted the writ petition and passed an interim order on July 12,
1993 in presence of the State counsel, directing maintenance of status quo
as of that date until further orders. His Lordship gave directions for filing
affidavits.
5.3 The State took inordinate time to file affidavit. The affidavit was
ultimately filed on April 1, 2002. The matter was heard by the learned
Single Judge. His Lordship allowed the writ petition by judgment and
order dated May 2, 2005 appearing at pages 132-171 of the Paper Book in
the appeal filed by the State.
6. JUDGMENT ANALYSIS :
(i) His Lordship considered the entire fact situation as summarised by us
hereinbefore.
(ii) His Lordship also considered the sequence of events apropo the notifications
issued from time to time by the State on the basis of the return submitted by
Orient.
(iii) His Lordship considered the Apex Court decision in the case of
Regional Manager Vs. Pawan Kumar Dubey reported in All India Reporter,
1976, Supreme Court, page 1766 and State of Punjab Vs. Baldev Singh
reported in 1999, Volume - VI, Supreme Court Cases, Page 172 on the
applicability of the Division Bench decision in the Second Appeal.
(iv) His Lordship negated the contentions made by the appellants to the
effect that since the issue involved was dependant upon adjudication of the
respective right, title of the parties Writ Court should not interfere. His
Lordship held that the writ petitioners had been able to prove the title over
the property in question by referring to the decree of the Civil Court
crystalising rights and liabilities of the respective parties in the Civil Suit.
(v) His Lordship held, once the title was adjudicated by the Civil Court upto the
second appellate stage Orient got no right to submit any return claiming title
over the property derived from the original debtor.
(vi) His Lordship interpreted the phraseology 'to hold' as defined in the
said Act of 1976. His Lordship held that mere possessory right over the land
would not suffice to show that the possessor was holding the vacant land as
an owner. His Lordship held that the doctrine of lis pendence would be
applicable in the instant case.
(vii) His Lordship relied upon the fact that on January 10, 1990 the
authority got a notice under Section 26(1) of the said Act of 1976 from one of
the writ petitioners, inter alia, praying for permission to sell a portion of the
property in question. Despite such knowledge the competent authority
proceeded to pass the order of vesting under Section 10 thereof. His
Lordship also held that State had knowledge of the legal proceeding pending
in High Court at material time.
(viii) His Lordship held, the competent authority committed gross illegality
by entertaining the return filed under Section 6 by Orient.
(ix) His Lordship also observed that the order of status quo was subsisting
with effect from July 12, 1993 and the hospital authority failed to satisfy the
court that the construction was completed before the said date. In this regard
His Lordship relied on the decision in the case of Clarke & Ors. Vs.
Chadburn & Ors. Reported in 1985, Volume - I, All England Law Reporter,
Page 511 and Krishna Kumar Khemka Vs. Grindleys Bank, Plc & Ors.
reported in All India Reporter 1991, Supreme Court, Page 899 and Delhi
Development Authority Vs. Skipper Construction Company Pvt. Ltd. & Anr.
reported in 1996 All India Reporter, Supreme Court, Page 2005.
(x) His Lordship allowed the writ petition and quashed the notifications issued
by the State.
(xi) His Lordship also observed that the hospital authority would be
entitled to have refund of the lease premium and rental paid to the State.
(xii) His Lordship directed the hospital authority to hand over possession
of the said land to the writ petitioners. His Lordship, however, gave liberty
to the State to proceed against the writ petitioners afresh after giving liberty
to the writ petitioners to submit return under the said Act of 1976.
7. APPEALS
Being aggrieved by the said judgment and order both the hospital authority as well
as State preferred the above appeals which were heard by us on the above
mentioned dates.
8. CONTENTION OF THE STATE/APPELLANTS :
The learned Advocate General appearing in support of the appeal filed by the State
contended as follows :-
(i) The land was admittedly a vacant land. Orient submitted return under
Section 6. The State bona fide proceeded on the basis of such return and
invited objections. The respondents or their predecessor did not file any
objection contemporaneously.
(ii) The decree of the Civil Court being a declaratory one had no binding effect
on the State.
(iii) The State was statutorily entitled to proceed against the owner of the
land in question in respect of the excess land kept beyond the ceiling limit.
Such action was within the ambit of the statute and was not liable to be
questioned.
(iv) Even if by virtue of the decree their predecessor in title of the
respondent became owner of the said premises in question the transfer made
by them in favour of the respondents was void being contrary to the
provisions of Section 5(3) of the said Act of 1976.
(v) The respondents were not in possession. Notices were given inviting
objections from the interested parties. Having received no objection the State
was entitled to proceed in accordance with law. Hence, the learned Single
Judge was not right in directing the State to proceed de novo.
(vi) State was not a party to the intra party fued before the Civil Court and
as such Civil Court decree was not in any way binding upon the State.
9. CONTENTION OF THE HOSPITAL/APPELLANTS :
Mr. Joyanta Kumar Mitra, learned senior counsel appearing for the Appollo
contended as follows :-
(i) The property stood vested on the State in 1990. The possession was taken
from Orient on May 28, 1990. The possession was handed over to Hospital
authority on April 4, 1991 by virtue of the Deed of Lease executed in their
favour upon payment of appropriate consideration. Hence, the hospital
authority being a bonafide transferee without any knowledge of the civil
litigation could not be dispossessed.
(ii) The hospital authority got the possession in 1991 and constructed the
hospital. Hence, a belated writ petition of 1993 could not be of any help to
the respondents as by that time the hospital authority altered their status by
spending huge sums on construction.
(iii) Under Section 12 of the said Act of 1976 the respondents had
alternative remedy of appeal as against the final order of vesting, having not
exhausted such remedy the writ petition was not maintainable.
(iv) Orient was in possession of the land in question. They
voluntarily handed over the excess vacant land and took appropriate
compensation therefor. Hence, belated proceeding at the instance of the
respondents could not invalidate the subsequent action of the State.
Mr. Mitra in support of his contention cited two Apex Court decisions in the case
of State of Rajasthan & ors. Vs. D.R.Laxmi & Ors. Reported in 1996, Volume - VI,
Supreme Court Cases, Page 445 and Municipal Corporation of Greater Bombay Vs.
Industrial Development Investment (Private) Ltd. & Ors. 1996, Volume - XI,
Supreme Court Cases, Page 501.
10. CONTENTION OF THE RESPONDENTS:
Mr. Bidyut Kumar Banerjee, learned senior counsel appearing for the respondents
contended as follows :-
(i) The land was a horticultural land and could not come within the purview of
the said Act of 1976 empowering the State to initiate proceedings on the basis
of the purported return.
(ii) As far back in 1959 the then owner got the redemption certificate by virtue
of which the ownership became absolute and State was only entitled to the
rental revenue.
(iii) The State had all through out knowledge of the Civil Court
Proceedings. Such fact would be evident as the State did not object when the
land was intended to be transferred on the basis of the application made on
December 1, 1989 under Section 26(1) of the said Act of 1976.
(iv) No notice under Section 8(2) or 10(1) of the said Act of 1976 was
received by the then owner of the land in question.
(v) When the writ petition was moved in 1993 order of status quo was passed in
presence of the State advocate. Hence, State was not entitled to proceed
further in the matter by allotting the land to the hospital authority to
construct the hospital in violation of the order of status quo.
(vi) The mandate of Section 10(1) was complied in breach.
Requirement of the Rule 6 of the Urban Land Ceiling Rules was performed
in breach. No evidence with regard to the service of notice was evident.
Hence, follow up proceeding under Section 10(3) was void.
(vii) Before proceeding on the basis of the return purported to have
been submitted under Section 6 the State was duty bound to make an
enquiry to come to a conclusion that the land was a vacant land within the
meaning of Section 2(o) of the said Act of 1976. Such venture was not made
by the State although the land records were maintained by them.
(viii) The State was obliged to make an enquiry to the title of Orient
before proceeding on the return submitted by them.
Mr. Banerjee in support of his contention cited two Apex Court decisions in the
case of Raja Anand Brambhma Shah Vs. State of U.P. & ors. reported in All India
Reporter, 1967, Supreme Court, Page 1081 and SBP & Company Vs. M/s Patel
Engineering Company Limited & Anr. reported in All India Reporter, 2006,
Supreme Court, Page 450.
11. CONTENTION OF THE APPELLANTS IN REPLY :
11.1 The learned Advocate General in his reply reiterated what he had
submitted earlier. In addition he contended that the enquiry was duly
made on the basis of the return submitted under Section 6. The State
relied upon the Deed of Conveyance submitted by Orient. Rule 6 was
duly complied with. The respondents having raised no contemporaneous
objection was not entitled to raise the issue at the belated stage. He also
contended that Khas Mahal record could not prove the nature of the land
and it was the duty of the respondents to prove that the land was a
horticultural land and not a vacant land within the meaning of the said
Act of 1976. He further contended that the Single Bench was satisfied
about the nature of the land and as such gave liberty to the State to
proceed de novo.
11.2 Mr. Mitra in reply reiterated that he was a bonafide allottee without
any knowledge of the decree and as such should not be disturbed.
12. OUR VIEW :
12.1 The second appellate decree might be binding only upon the parties to the
said proceedings. However, it is otherwise a judgment in rem, at least against any
person claiming title derived from the judgment debtor. Hence, State deriving title
by way of vesting from Orient was not entitled to deny the right, title and interest
of the respondents in question.
12.2 It is true that the respondents should have been vigilant enough to
get their names mutated in the appropriate records of the State as well as
municipal authorities contemporaneously. They must be aware of the
laws of the land. It was a vacant land as found out by His Lordship. The
respondents miserably failed to prove it otherwise. The learned judge also
gave liberty to the State to proceed de novo under the said Act of 1976.
Such decision of the learned Single Judge was not assailed by the
respondents by way of cross appeal and/or cross objection. Hence, the
respondents were not entitled to contend otherwise at this belated stage.
We are, however, not able to convince ourselves to accept the contention
of the learned Advocate General to the effect that the transfer in favour of
the respondents was void and as such they had no locus standi to
challenge the notification. The title was in dispute. Hence, the doctrine of
lis pendence would apply. During the pendency of the second appeal the
present respondents purchased the interest of the then owner on the said
land in question which was yet to be adjudicated upon. They stepped into
the shoes of their predecessor in interest. The declaration was made in
their favour by the Division Bench of this Court. Hence, the State was
obliged to proceed against them under the provisions of the said Act of
1976. The learned Single Judge rightly observed as such and we are in full
agreement with His Lordship on that score.
12.3 It is true that the hospital was constructed by Appollo by spending
huge sum. They did it at their own risk and peril as it was a lease for
thirty years which is going to expire in 2021. The hospital authority took
that risk before proceeding further. Hence, the contention made by Mr.
Mitra on that score can not be accepted.
12.4 We, however, feel that although it is a private hospital it is serving
people of the State giving medical services and it would not be proper to
stop such activity at this stage. We are prompted to say so as we also find
the respondents guilty of laches. They did not approach the appropriate
authority at the right moment. They should have raised objection
contemporaneously. However, such laches cannot take away their right to
claim appropriate relief without disturbing the hospital, if possible.
13. RESULT :
13.1 The order of the learned Single Judge is thus modified to the extent
that the hospital authority need not hand over actual physical possession
to the State before a final declaration, if any, is made under Section 10(3)
considering the return to be submitted by the respondents in terms of the
liberty granted by His Lordship to them.
13.2 The hospital authority would be obliged to compensate the
respondents to the extent of the land, if any, allowed to be retained by
them, by the competent authority under the said Act of 1976 and for the
balance part of the land the State would be obliged to pay compensation
in accordance with law.
13.3 With these directions we modify the order of the learned Single Judge
and dispose of both the appeals without, however, any order as to costs.
13.4 Urgent xerox certified copies will be given to the parties, if applied
for.
ASHIM KUMAR BANERJEE,J.
KALIDAS MUKHERJEE, J. : I agree.
KALIDAS MUKHERJEE, J.