Calcutta High Court (Appellete Side)
Nirapad Cooperative Housing Society ... vs The State Of West Bengal & Ors on 3 March, 2021
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
42 IN THE HIGH COURT AT CALCUTTA
03.03.2021 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct23 APPELLATE SIDE
WPA 8758 of 2020
(Through Video Conference)
Nirapad Cooperative Housing Society Limited & Anr.
Vs.
The State of West Bengal & Ors.
Mr. Siddhartha Mitra, Sr. Advocate,
Mr. Sounabho Ghose,
Ms. Ruchika Mall
... For the petitioners.
Mr. Kishore Datta, Ld. AG
... For the State.
Mr. Amitava Choudhuri,
Mr. M. Choudhuri,
Mr. N. Roy
... For the respondent no.3.
Affidavit of service filed in Court today is taken on record.
The petitioner no.1, is a Cooperative Housing Society and the petitioner no.2, is its secretary. The petitioners say that the petitioner no.1 on the land allotted has constructed several buildings which are situated and lying at DB-28, 29, Salt Lake City, Kolkata - 700064 (hereinafter referred to as the "cooperative property"), The members of the housing society are occupying and/or residing at different units of the buildings so constructed and comprised in Co-operative property. The petitioners allege that a plot of land situated at DB-118, Salt Lake City, Kolkata - 700064 (hereinafter referred to as the "plot of land") is within a few metres from the Cooperative 2 property. The said plot was earmarked under the master plan of 1967 prepared for DB Block of Bidhannagar for construction of a primary school. All on a sudden, construction work was initiated in the said plot of land. The petitioners on enquiry came to learn that an eight-storeyed building meant for the office of West Bengal Joint Entrance Examination Board (for short "WBJEEB") is sought to be constructed thereat. The petitioners also say that the work of construction in particular piling work has caused physical damage to the building situated at the property of the Cooperative Society.
The petitioners' grievance, therefor, is mainly three-fold: -
(i) The construction on the said plot of land amounts of alternation of the master plan of the Bidhannagar.
(ii) The office of the WBJEEB sought to be constructed on the said plot of land is without any authority and there is no valid title in favour of WBJEEB to construct a building on the said plot.
(iii) The construction work has caused physical damage to the buildings situated and lying on the property of the cooperative society, apart from the nuisance arising out of the sound, dust etc. emanated from the 3 construction site.
In order to elucidate that the said plot of land was meant for a primary school, the petitioners refer to a master plan finalised in 1967 and annexed at page 32 of the writ petition. The petitioners also refer to the Notification published in the Calcutta Gazette on 10th November, 1977 (at page 33-34 of the writ petition) that DB Block at Bidhannagar is specifically meant as a residential block/area and, as such, no commercial activity is permitted therein apart from those mentioned in the notification. The multi- storeyed building sought to be constructed for WBJEEB is for providing office space to accommodate the officials of WBJEEB which will amount to carrying on commercial activity which is barred under the Notification dated 10th November, 1977.
On the ground of lack of title in favour of the WBJEEB to make construction at the said plot of land, it is submitted by the petitioners that there is no valid lease as also change of user in favour of WBJEEB. In the absence of any such valid document, no building plan can or could have been sanctioned by the municipal authorities to allow the construction to be made at the said plot.
With regard to the physical damage to the buildings situated on the property of the cooperative 4 society, photographs have been annexed to the writ petition to demonstrate cracks and physical damage sought to have been caused due to the construction work. The petitioners, therefor, seek that the construction work be stopped with immediate effect.
On behalf of respondent no.1 it is submitted by learned Advocate General that there is no effective change in the master plan. The said plot of land was meant for educational purpose. The construction of a primary school was initially proposed for pursuing such purpose. The construction of an office for WBJEEB would for all practical purposes be meant for pursuing the purpose for which the said plot of land was initially earmarked. The building proposed to be constructed for WBJEEB may not be holding classes like that in school which was initially proposed to be constructed at the said plot but will not involve any commercial activities. The staff and members of WBJEEB will work from the proposed building for discharging its day to day function including conducting Joint Entrance Examination and holding counselling.
It is further submitted by learned Advocate General that the issue of alleged change in the master plan and the user has been the subject matter of a Public Interest Litigation filed by the DB Block Residents Association and Another, being WP 5 12044 (W) of 2017. In the said Public Interest Litigation, specific issue has been raised as to the construction of a building for WBJEEB instead of primary school as initially earmarked in the master plan. The Hon'ble Division Bench did not while passing the order dated 9th June, 2017, stop the construction on the said plot of land even after noting that construction equipments have been shifted to the said plot. Subsequent thereto, by an order dated 1st November, 2019 passed in a bunch of writ petitions which included the writ petition filed by DB Block Residents Association and Another, the Hon'ble Division Bench presided over by the Hon'ble the Chief Justice has allowed the construction work to continue. In such circumstances construction work has continued for at least three years. At this stage the construction work should not be stopped.
On behalf of WBJEEB, it is submitted that the writ petition is not maintainable in view of the fact that the issue as to the construction on the said plot of land is the specific subject matter of several writ petitions including the writ petition filed by DB Block Residents Association and Another. The petitioners, in fact, made an application, being CAN 2681 of 2020, in the said writ petition for being added as a party. The Hon'ble Division Bench by its order dated 26th August, 2020 has turned down the 6 prayer of the petitioners to be added as parties. Only thereafter the petitioners have filed the present writ petition on 16th October, 2020. The petitioners had waited for about three years to make the application for addition of party and thereafter the instant writ petition was filed. The delay on the part of the petitioners is substantial and as such no interim order should be passed in favour of the petitioners.
It is further submitted that the construction of the building is continuing for several years and a substantial progress in the construction work has been made. The piling work, the plinth has been constructed and the ground floor construction is in progress. In the event, an interim order of stopping the construction is passed, WBJEEB will be subjected to hardship and serious inconvenience. The construction cost will increase and the purpose for which the building is sought to be constructed will be in jeopardy. It is also submitted that since the piling work has already been completed, there is no scope of any further vibration.
It is further submitted that WBJEEB had constituted a special committee with experts in the field to ascertain as to whether damages have been caused to the buildings situated on the property of the society. The petitioners are not cooperating with the said committee and, as such, necessary 7 inspection could not take place.
Rebutting the submissions made on behalf of the State and the WBJEEB, it is submitted by the petitioners that the petitioners have been able to make out a prima facie case as there is admittedly a change in user as to the said plot of land from the master plan which also infringes the Gazette Notification dated 10th November, 1977.
The balance of convenience and inconvenience, according to the petitioners, is also tilted in their favour, as allowing the construction to continue would cause further damage to the buildings of the Co-operative society. The construction work is also continuing throughout the day and even in night with the intent to complete the construction at haste to render the writ petition infructuous. The sound and dust throughout the day and late hours is causing the members of the Co- operative Society residing thereat greater hardship.
The petitioners referring to the order dated 9th June, 2017 also say that the Hon'ble Division Bench had also found that the said plot was earmarked for primary school but a multi-storeyed building is being constructed for the office of WBJEEB thereat. The Hon'ble Division Bench also wanted to be satisfied about the change of user of the said plot. The petitioners also say that the language 8 in the order dated 1st November, 2019 only says "any construction made by the Joint Entrance Board in the meantime shall abide by the result of the writ petition". This does not mean that construction work has been allowed to continue.
The petitioners also express their worry that in the absence of an interim order staying the progress of the construction, the construction would continue and by the time the writ petition is heard, if affidavits are called for, the construction of entire building may be completed when demolishing the same may not be practically feasible.
After hearing the parties, I find that so far as the petitioners' grievance regarding the change in master plan is concerned, the petitioners are entitled to ventilate the grievance as residents of DB Block. The petitioners and the members of the petitioner no.1 have been provided with certain rights and privileges as to the common amenities, facilities and infrastructural support as residents of DB Block in terms of the master plan and the Calcutta Gazette Notification dated 10th November, 1977. The change in user or the change in the decision of constructing a building for WBJEEB instead of primary school affects the individual rights of the members of the Co-operative Society provided under the master plan and the Gazette Notification which can be ventilated 9 by the petitioners by filing a writ petition. With regard to the physical damage said to have been caused to the buildings situated on the property of the Cooperative Society, the petitioners are also entitled to maintain a writ petition on the allegation that the construction at the said plot of land undertaken by Government and or its agency very close to it, is causing damage to the petitioners' property. The petitioners have also challenged the authority of WBJEEB in undertaking construction of a multi- storeyed building on the said plot. The construction of the multi-storeyed building for WBJEEB a Government agency is an admitted fact. The writ petition is also maintainable on this ground. Reliance in this regard can be placed in the judgment reported in 1981 (2) CHN 3 [In re: Vidya Debi Pandey]. I, therefor, hold that the writ petition is maintainable even though certain issues raised in the Public Interest Litigation filed by some other persons or entities, involve the issue of construction on the said plot of land.
On the issue of passing interim order, I am not inclined to pass any at this stage, particularly in view of the fact that the construction is going on at least from June, 2017 and has not been stopped by the Hon'ble Division Bench despite such fact had been specifically brought to the notice of the Hon'ble 10 Division Bench. The order dated 1st November, 2019 to the effect that the construction made by WBJEEB in the meantime shall abide by the result of the writ petition protecting the interest of the petitioners in the instant writ petition vis-à-vis construction work protects the interest of the petitioners.
The issue that remains is the physical damage caused to the buildings. This requires to be ascertained. Since it is submitted by WBJEEB that a special committee has been constituted by WBJEEB for the purpose of ascertaining damages caused to the petitioners' property by the construction work and that the petitioners are aware of the constitution of such committee which is, however, being denied by the petitioners, I adjourn this matter till 11th March, 2021 so that the details as to the constitution of the committee along with the particulars of the members of the committee alleged to have been constituted by WBJEEB has to be provided to the petitioners well in ahead of the adjourned date to enable them to make necessary submissions on the next date. The petitioners shall suggest name or names of any expert of its preference who may be inducted in the committee and reconstitution of the Committee by remaining some of its members as against whom the petitioners have objection. WBJEEB should also apprise the Court about the convenient date and 11 tentative time when the members of the committee will be available for inspecting the petitioners' property to ascertain the physical damage caused to it and the construction work to ascertain its stage and progress.
Let this matter appear on 11th March, 2021 for further consideration.
(Arindam Mukherjee, J.)