Calcutta High Court
Smt. Rinkoo Mitra vs State Of West Bengal And Ors. on 2 August, 2000
Equivalent citations: (2003)2CALLT588(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. The writ application filed by the appellant herein praying for the following reliefs:
"(a) A writ of or in the nature of Mandamus do issue commanding the respondent authorities and their servants, subordinates and agents: -
(i) Not to consider the application of late Jitendra Nath Roy and/or the respondents No. 5 to 9 for sanction to construct 2nd and 3rd floor on premises No. P-105, Block-D, Bangur Avenue, Calcutta without (the consent and/or without removing) the objection of the petitioner.
(ii) To recall and/or cancel and/or rescind and/or the order of quash purported sanctioned dated 20.4.95 or any other date granted by the respondent authorities being respondent Nos. 1 to 4 for the construction of any additional floor on the existing structure of the premises No. P-105, Block-D, Bangur Avenue, Calcutta.
(iii) To recall and/or cancel and/or rescind and/or quash the said illegal purported completion certificate dated 9.4.98 being annexure D herein.
(iv) To consider the objection of the petitioner as narrated in the petition by giving a personal hearing in accordance with the principle natural justice.
(v) To act in accordance with rule;
(b) A writ of prohibition directing the respondent Nos. 2 to 4 and each one of them, their subordinates and agents from granting any sanction for construction in premises No. 105, Block-D, Bangur Avenue, Calcutta, and in case such sanction has been granted, not to give effect to and/or further effect to the same and restrain the respondents 5 to 9 proceeding with the construction in premises No. 105, Block-D, Bangur Avenue, Calcutta and post guard to ensure no further construction is undertaken or taking any steps pursuant to such purported sanction."
was dismissed in limine by a learned Judge of this Court by an order dated 4th April, 2000 stating:-
"The writ petitioners complains against proposals to construct the second and third floors at the site where she is the owner of the ground floor. Points are taken that as part owner of the land she has not given her consent for construction; further the completion certificate was issued in 1998 to a dead person Jitendra Nath Roy.
In the second Schedule of the conveyance given in favour of the writ petitioner is a mention that construction of the second and third floor would be made.
Whether there is load bearing capacity of the building or not, whether there should be construction or not, whether the plan for such construction should be sanctioned or not, these questions cannot be answered satisfactorily without entering into details of facts.
The suit Court is the appropriate Court for such factual details. It is also quite competent to stop the alleged illegalities complained of the without entering into merits the writ application is summarily rejected."
2. Having regard to the fact that this Court found that a prima facie case was made out for hearing, the learned counsel for both the parties requested that the writ application itself be heard by this Bench. In this view of the matter the impugned order should be deemed to have been set aside.
3. That the predecessor-in-interest of the respondent Jitendra Nath Roy was the owner of Plot No. P-105, Block-D, Bangur Avenue is not in dispute. He constructed two flats on the ground floor as also made some constructions on the first floor.
4. On 7.12.1991 Jitendra Nath Roy executed a deed of conveyance in favour of the appellant herein in respect of ground floor of flat measuring 1230 square feet. The said deed of sale, inter alia, contained the following averments :-
"AND WHEREAS the vendor herein is now well and sufficiently seized and possessed of and entitled to the said premises plot No. 105, Block-D, Bangur Avenue in the town of Calcutta all that three cottahs six chittaks and forty one square feet of land constructed a two storied building (on which second and third floors to be constructed) hereinafter referred to as the said building standing thereon fully mentioned in the first schedule hereunder written out of his own funds upon obtaining a building plan duly sanctioned by the South Dum Dum Municipality.
AND WHEREAS the purchaser herein had approached the vendor for transfer of only the ground floor flat on the said building in a dilapidated condition (roadside front) admeasuring an area of 960 square feet together with a mezzanine floor room excluding the garage thereunder in its present condition (hereinafter referred to as the "said Property") more particularly and fully mentioned and described in the second schedule hereunder written together with proportionate share in land and with right, use of common passages, stairs and right or ingress and egress in the said property appurtenant thereto in the said property and intended to be hereby granted/transferred and conveyed in the manner hereinafter conveyed."
5. It was further stipulated:
The purchaser herein shall have no right, title and/or interest in respect of the roof of the said building, the said property as mentioned in the second schedule which is hereby sold, transferred and conveyed absolutely to the purchaser excluding and excepting the age in the said building. The vendor both hereby grants and conveys to the purchaser the right to visit the roof of the said building occasionally for the purposes of inspection of the overhead water-tank, installation fittings and/of inspection of television antenna or any other antennas etc."
6. The said indenture contained four Schedules. The first Schedule reads thus:
"All that piece or parcel or Mourashi Mokrari land hereditaments and premises measuring three cottahs, six chittaks and forty one square feet, a little more or less situate lying at and being plot No. 105 of Block "D" in Bangur Avenue, along with a partly constructed 2 (two) storeyed building on which second and third floor to be constructed standing thereon, within the jurisdiction of South Dum Dum Municipality, Thana Dum Dum now Lake Town, Sub-Registration Office Cossipore, Dum Dum in the District of 24 Parganas and according to settlement records of rights finally published in 1931 the said plot No. 105 of Block "D" in Bangur Avenue, comprised in Pargana Calcutta Mouza-Krishnapur, J.L. No. 17, R.S. No. 180, Touji No. 228 and 229 of 24 Parganas Collectorate, Khatian No. 791, Part of C.S. Plot No. 2530/2559 appertaining to a fixed total annual rent of Rs. 156/12/6 payable to the Collector, 24 Parganas. The proportionate rent payable for the said is annas fourteen only."
7. The second Schedule specified the portion purchased by the appellant which reads thus:
"All that piece and parcel of road side flat excluding garage on the Ground Floor, (front portion) of the two (2) storeyed building on which second and third floors to be constructed, having an area of more or less 960 square feet, an independent self contained flat consisting of.
1. One partially covered front verandah with grilled gate;
2. One living room with attached privy;
3. One living room;
4. Space alongwith staircase;
5. One Mezzanine Room excluding the garage underneath;
6. One Bath and Toilet (Privy);
7. Kitchen and store room;
8. Dining space and inner Corridor."
Third Schedule reads thus:
"Right of use of (1) common passage on East and West side of the building, (2) Ground floor main door landing space, (3) Space for common use on the back side of the flat used for the septic tank.
Alongwith proportionate share of rent free land of the said premises as described in the First Schedule herein before whereupon the flat has been constructed in the year 1975."
8. Fourth Schedule referred to the documents relating to title of the vendor in respect of the said property.
9. Prior to execution of the said indenture a questionnaire for requisition of title was sent and the replies thereto had been made which is contained in annexure 'B'. It is admitted that on 17th October, 1974 a plan was sanctioned by South Dum Dum Municipality for a four storeyed building.
10. The owner initially had constructed ground floor containing two self contained flats and subsequently the first floor of the said premises in 1974. As the life of the said plan expired in 1987, Jitendra Nath Roy had applied for fresh sanctioned plan for construction of the entire building i.e. G+3. Such plan was sanctioned on 5th December, 1988. In 1992 Jitendra Nath Roy applied for fresh sanction. The appellant was also asked to apply for mutation and separate water and electrical connection on 7.2.1994. The plan was sanctioned on 24.4.1995 and in July '95 Jitendra Nath Roy died. The appellant herein, having come to learn of the grant of such sanction sought for hearing in the matter by the authorities of the South Dum Dum Municipality, pursuant whereto, an explanation was called for and by an order dated 14.1.97. The respondent No. 5 replied thereto inter alia stating that all actions had been taken by an approved Engineer. Allegedly in the name of Jitendra Nath Roy a completion certificate was prayed for on 14.1.98 which was issued on 9.4.98. The sanctioned plan was renewed on.19.5.98 and yet again on 20.4.99. The appellant sought for a hearing in the matter as also filed an application for mutation; wherefor 10.3.2000 was fixed for hearing.
11. On or about 2.3.2000 the private respondent gave notice of commencement of construction work to the Municipal authorities and such constructions commenced on 18.3.2000. Allegedly despite a hearing given to the appellant's name, mutation of her name had not yet been done. At the said juncture the writ application was filed.
12. Mr. P.K. Das, the learned senior counsel, appearing on behalf of the appellant herein, inter alia, submitted that in the instant case the respondent-Municipality has violated the relevant provisions of the West Bengal Municipal Act, 1993 (hereinafter referred to as the said Act) as also the Building Rules framed thereunder. Our attention in this connection has been drawn to Sections 203, 204, 205, 207(2), 210(a), 210(c), 212, 217, 218, 220 as also the Building Rules No. 5, 13(2), 20, 21, 24, 28 and 29. The learned counsel has also drawn our attention to Form-B appended to the said Rules. Mr. Das would urge that having regard to the fact that the appellant had become owner of the proportionate share in respect of the land in question, she being a co-owner, no application for sanction of building plan would have been filed without her consent. According to the learned counsel, even a neighbour whose right is affected by grant of such building plan can question the validity thereof and in support of the said contention, strong reliance has been placed on Krishna Kali v. Babulal Shaw , K. Ramdas Shenoy v. Udipi Municipality and W.C. Shaw (P) Ltd. v. Bhagwan Das reported In 89 CWN 149. The learned counsel contends that in a case of this nature the appellant at least was entitled to a notice which was mandatory. Strong reliance in this connection has been placed on Kanai Lal Paul v. Corporation of Calcutta and Ors. reported in 68 CWN 1049. In any event, contends the learned counsel, as the completion certificate had been granted only recently the appellant having occupied the premises in the year 1991, the same should be quashed as by reason thereof the possession of the petitioner is sought to be made illegal.
13. Mr. Bimal Chatterjee, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the appellant is not a co-owner but a limited owner. The learned counsel contends that from the stipulations made in the indenture it would appear that only a proportionate share of the land relating to the flat purchased by the appellant had been transferred. The learned counsel contends that the appellant had no right over the roof and thus, had no right to claim the ownership as regard construction of the second floor and third floor as she did not have the right over the roof of the ground floor, and, thus, the question of her deriving right on the roof of the first floor upon which the second floor would be constructed or the roof of the second floor upon which the third floor would be constructed does not and cannot arise. The land for construction of the second and third floor, according to the learned counsel, would be the roof of the first and second floor respectively. The learned counsel contends that the petitioner cannot be said to be a co-owner inasmuch as the co-owner has a right in respect of every inch of the land and is entitled to enjoy all rights and privileges which a co-owner does; but in the instant case, the right to be enjoyed by the appellant herein is limited to the proportionate share of the land upon which her flat has been constructed as also some right of user which are easementary in nature as described in the third Schedule appended to the Deed of Conveyance. The learned counsel would contend that in any view of the matter, from the requisition of title as also the indenture it would be evident that the appellant had been put to notice that the second and third floor would be constructed on the building wherefor an application for grant of sanction of building plan had already been filed and, thus, the writ petition is barred under the principles of estoppel. Strong reliance in this connection has been placed on Sri Ram Pasricha v. Jagannath and Ors. . It was urged that in that view of the matter it was not permissible for the appellant now to turn round and contend that she having become a co-owner would not consent thereto. Such consent according to the learned counsel would be deemed to have been granted on the date of execution of the said indenture.
14. The principal question which arises for consideration is as to whether in the facts and circumstances of the case the appellant can be said to be a co-owners in respect of the entire land.
Who is 'co-owner' has succeinctly been stated in Mitra's Co-ownership & Partition, seventh edition, which is to the following term:-
"All co-owners have equal rights and co-ordinate interest in the property."
15. In Debendra Narayan Singha v. Narendra Narayan Singha and Ors. reported in 23 CWN 900, Mookerjee, J., observed:-
"Each joint-owner has the right to the possession of all the property held in common, equal to the right of each of his companions in interest and superior to that of all other persons. He has the same right to the use and enjoyment of the common property that he has to his sole property, except in so far as it is limited by the equal right of his co-sharers. Accordingly, each co-owner may, at all times, reasonably enjoy every part of the common property, that is, he is entitled to such enjoyment as will not interfere with the like rights of the co-owners. It necessarily follows that one co-owner has no right to the exclusive possession and use of any particular portion of the joint property; and if he exercises such rights and exclude his co-sharers from participation in the possession, he must account to his co-sharer for his interest in the part from which he is ousted, even though he takes no more than his just share."
16. In Sri Ram Pasricha v. Jagannath and Ors. , the Apex Court categorically held:-
There is no dispute that the plaintiff is the landlord. It is, however, found that he is one of the co-owners of the premises-- the other co-sharers being his mother and married brother, who reside in the same premises along with him. The premises in suit, namely, the second floor of the building in occupation of the tenant is required by the plaintiff for occupation of the members of the joint family and for their benefit. A major portion of the ground floor of the building accommodates the Joint family business and the first floor is found by the Court to be inadequate to the requirements of the large family of eighteen members including the widowed mother."
17. It has further held:-
"Mr. V.S. Desai reads to us from Salmond on Jurisprudence (12th edition) and relies on the following passage in Chapter-8 (Ownership), paragraph 46 at page 254:
As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership, partners, for example, are co-owners of the chattels which constitute their stock-in-trade, of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person..... The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned.
Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property."
18. The aforementioned decision of the Apex Court has also been followed by the Supreme Court in Kochkunja Nair v. Koshy Alexander and Ors., wherein the law has been laid down in the following terms :-
"Ownership imports three essential rights, namely right to possession, right to enjoy and right to dispose of if an owner is wrongly deprived of possession of his property, he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory, interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others (vide, Mitra's Co-ownership and Partition, 7th edition)."
A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath , that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships:
"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner of a fractional owner of the property. The position will change only when partition takes."
19. It is, therefore, evident that only a person who is entitled to claim right of all the enjoyments and benefits of the property along with somebody else as also claims possession in respect of every inch of the property would be a co-owner in relation thereto. A person who has only a proportionate share of the land over which the flat has been constructed and some right for common use which incidents are normally found these days in respect of ownership of apartments cannot be said to be a co-owner except in relation to common passage or common space.
20. It has to be noticed that even in the ground floor there were two flats. The appellant had purchased only one flat. She has, therefore, no right of possession either over the other flat or has any proportionate share in the land over which the other flats have been constructed. She cannot be a co-owner in respect of entire land wherefor sanction of the building plan was sought for an granted. The answer to the said question must be rendered in the negative.
21. Sections 207(2), 210(a), 210(c) of the West Bengal Municipal Act, and the relevant portion of Rules 13 and 24 of the West Bengal Municipal (Building) Rules, 1996 and Form B which are relevant for the purpose of this case read thus:
"Section 207. Sanction of building plan and permission to execute work.
(1)..........
(2) A building plan sanctioned under this section shall remain valid for three years from the date of such sanction, and may be renewed for another two years on payment of such fees as may be levied by the Board of Councillors by regulations.
Section 210. Grounds on which sanction may be refused.- The sanction of a building plan may be refused on any of the following grounds:-
(a) that the approval of the building site has not been obtained as required under the provisions of this Act and the rules and the regulations made the reunder;
(b) .......
(c) that the application with building plan does not contain the necessary particulars and has not been prepared in the manner as required under the rules and the regulations made in this behalf.
Rule 13. Application to the Chairman-in Council with a building plan for permission to erect a new building or to make addition or alteration to a building.
(1) No person shall erect a new building or re-erect or make addition and/or alteration to any building or cause the same to be done without first obtaining a sanction from the (Board of Councillors under these Rules).
(2) Every person intending to erect a new building, shall apply for sanction giving notice in writing Form 'B' along with the following:-
(a) copies of documents showing that the applicant has exclusive right to undertake such works;
(b) .....
(c) (i) certified copy of the approved site plan;
(ii) certified copy of the reports of tests for stability of slopes and for soil as per requirements in Rule 4 and such test report should also indicate the maximum load that can be transferred to the soil of the particular site safely.
Form-B INSTRUCTIONS TO THE APPLICANT
1. The applicant must be owner of the land.
2. ......"
22. If she is not a co-owner, the requirements for filing joint application for sanction of building plan as envisaged under the provisions of the West Bengal Municipal Act and in particular those provisions which had been quoted supra are not attracted in this case. It may be true that any person whose right is adversely affected would be entitled to bring an action with a view to showing that by reason of illegal sanction of the building plan by a local authority, her right has been affected.
23. The provision of the Municipal Act as also the Building Rules framed thereunder undoubtedly regulates construction of building not only with a view to safe guarding the interest of the reasons residing therein but also those of the neighbouring owners, hygene, sanitation, beautification etc. are also relevant factors.
24. Having regard to the aforementioned principles the decisions of this Court may have to be taken into consideration.
25. In Krishna Kali Mallick v. Babulal Shaw and Ors. , it has been held:-
"In the present case the defendant have an obligation under the statute to build in accordance with Rules. That statutory obligation, it is contended by the defendants, is enforceable by the Corporation only under some sections of the Act. The Corporation has the right to proceed against the offending building because of the benefit and the interest of the public safeguarded by the Act that buildings shall not be constructed in violation of the statute. An illegal construction by the defendants materially affects the right to or enjoyment of the plaintiffs property. The defendants owe duty and obligation under the statute not only to the Corporation as custodian of the owners of buildings but also to the plaintiff. This duty arises by implication under the statute. If the defendant constructs a building according to a plan which is illegal the adjoining owner has the right to ask for an injunction because there is an invasion of right to and enjoyment of property by the illegal construction and the defendant owes an obligation to the plaintiff to obey the law.
On a review of those decisions I am of opinion on a construction of the entire statute and the facts and circumstances of the present case that the plaintiff has a right to proceed against the defendants in regard to the illegality of the plans and to ask for necessary relief in that behalf."
26. In Kumuda Sundari Properties v. Namdang Tea Co. , a Division Bench of this Court has observed:-
"The learned Judge, had, however, declined to quash the sanction already granted in favour of the landlord. On the special facts and circumstances of the case and in the interest of justice, Suhas Chandpa Sen, J. had directed the Commissioner of Calcutta Corporation to give the tenant an opportunity of being heard in support of his case. In case the Commissioner was satisfied, the landlord who was respondent No. 7 did not have exclusive fight to erect a building on the land in dispute, the Commissioner might exercise his powers under Rule 62B Schedule XVI of the Calcutta Municipal Act and cancel the permission to erect according to the plan. We are unable to consider the said decision of Suhas Chandra Sen, J. as an authority for the proposition that in every proceeding under Rule 62B Schedule XVI or corresponding Section 397 of the Calcutta Municipal Corporation Act, 1980, tenants or tenants who do not even claim any right to erect upon the holding, in question ought to be given opportunity of hearing. The Municipal Authorities under Rule 62B or Section 397 of the Calcutta Municipal Corporation Act have only a limited power to cancel sanction."
27. The said decision, therefore, runs counter to the submission of Mr. Das.
28. In Venkat Rao v. M.C. of Warangal reported in 2000(2) ICC 725, a learned single Judge of Andhra Pradesh High Court noticed:-
"I have heard the learned counsel for the petitioner Sri Bankatlal Mandhani. He vehemently contended that as held by this Court in Om Prakash Gupta v. State of Andhra Pradesh, 1997(2) ALD 115, any member of a public can approach this Court under Article 226 of the Constitution and seek appropriate reliefs. It is well settled that a neighbour who is aggrieved by the construction allegedly in contravention of the building plan has no locus standi to question the same in a public law remedy. If the neighbour is aggrieved with reference to the deprivation of corporal rights as well as incorporeal rights deprivation of property, violation of right to privacy etc., the only remedy is by way of Civil suit for declaration of easementary rights and consequential injunction. The reasons are two. In either way, whether a person is deprived of the property due to encroachment or a person's right to privacy is violated by virtue of illegal constructions preventing free light and air into the house; these are matters for elaborate evidence. This Court under Article 226 of the Constitution decides the matters based on affidavits and it is well neigh impossible to dwell into questions of fact which are in serious dispute. Therefore, the judgment of this Court relied on by Sri Mandhani which categorically states that the right of the public to approach the Court under Article 226 is acceded, cannot be extended where a private person is aggrieved by the actions of another private person that top when no proper material is placed before the Court that the construction made is gross subverting the public interest. As held by the Supreme Court in Rajatha Enterprises v. S.K. Sharma, , all illegal constructions need not be demolished. The acid test to be applied is whether Illegal constructions if any grossly subvert public interest and grossly contrary to the public interest. In the said case, the Supreme Court even regularised huge extent of floor space which was admittedly contrary to FSI Regulations. In this connection, it is useful to extract the following passage from the above judgment:
"....... in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent, the High Court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever of dishonesty or fraud or negligence on the part of the builder. See the principles stated by Sabyasachi Mukherjee, J. in Ramsharan Autyanuprasi v. Union of India, , and by Khalid, J., in Sachidanand Pandey v. State of West Bengal ". Therefore, the contention of the petitioner that he can approach this Court under Article 226 of Constitution is devoid of any merits."
29. In Kanai Lal Paul v. Corporation of Calcutta reported in 68 CWN 1049, D.N. Sinha, J. (as the learned Chief Justice then was) held where a person is to be deprived of his right, he must have an opportunity of being heard. No exception to the aforementioned proposition can be taken. If by a reason of illegal sanction or otherwise either a co-owner who has also a right or erection or re-erection of a building or any other person who may be affected by such erection must be granted an opportunity of hearing provided objections in relation thereto are taken.
30. In the writ application the petitioner-appellant, inter alia, has contended that the foundation laid for the building would not permit the load of the building if second and third floors are constructed. However, no such submission has been advanced. However, as noticed hereinbefore, the only argument which had been advanced was that she being a co-owner, her consent was required to be taken. Such a contention cannot be accepted for the reasons stated hereinbefore. The matter can be looked from another angle.
31. The appellant had all along been aware that the owner of the land intended to construct second or third floor. It was for her to consider that aspect of the matter at the time of purchase of the said building. She had been put to notice. She responded favourably to her transferor's right expressly or by necessary implication to erect second floor or third floor. She, in any event, did not object thereto. She, therefore, accepted the same sub silentio.
32. Apart from the fact that she did not have any legal right to question her vendor's or of her successor's in-interest, right to apply for erection or re-orientation of the building, in view of her own conduct she is estopped therefrom. In this case, therefore, the principle of estoppel by deed would squarely be attracted when a distinct statement of facts is made in a recital, the same would bind the parties to that instrument and if an action is brought upon it, it would not be competent for the parties to do anything contrary to such recital or denying the same.
33. It may be as has been submitted by Mr. Das that such a conse'nt never meant that building plan would be sanctioned illegally. But the question as to whether the building plan was being sanctioned or not must have to be judged in the fact situation of this case.
34. As the appellant had no locus standi in any event, it must be held to be not a fit case where the order of the respondent-Municipality should be set aside.
35. In the State of West Bengal and Ors. v. Anil Chandra Chowdhury reported in 2000(1) CLJ 39, it is stated:
"Furthermore, the appellant herein cannot collaterally be permitted to question the order dated 23.12.96 passed by the sub-divisional Land and Land Reforms Officer Coochbehar which was the subject matter of any proceeding before any higher Court. The appellant had not also preferred any appeal against the said order,"
36. In the case of State of Punjab v. Gurdev Singh , the law has been laid down in the following terms:-
"5. In the instant case, the respondents were dismissed from service may be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have into been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them, the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
6. But none the less, the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1965) AC 736 at page 769 Lord Redcliffe observed:-
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless, the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders".
7. Apropos to this principle. Prof. Wade states:
"the principle must be equally true even where the 'brand of invalidity' is painly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see: Administrative Law, 6th Edn. p. 352), Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the Void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352)"
37. Having regard to our findings and in the peculiar facts and circumstances of this case, the writ petitioner-appellant being not a co-owner, he contention as regard the illegalities committed by the Municipal authorities had been made on a wrong premises and, thus, we are of the opinion that this writ application was not maintainable.
38. Before parting with this case we may, note that the contention of Mr. Das to the effect that the grant of completion certificate would illegalise her possession is not relevant she had been in possession since 1991. Nobody questions her right to be in possession in the property she had purchased. Only because completion certificate had been granted in the year 1998, the same by itself would not affect her interest. In any event, if the said completion certificate is directed to be cancelled, she on her own showing would continue to be in illegal possession.
39. For the reasons aforementioned, there is no merit in this appeal which is dismissed but in the facts and circumstances of this case there will be no order as to costs. However, we may place on record that in the event the petitioner has any other tangible objection, she may bring the same to the notice of the Municipal Authorities. We also hope and trust that having regard to the facts and circumstances of this case the application filed by the appellant herein for mutating her name, so that the amount of rates and taxes be determined should be disposed of as expeditiously as possible.
H. Banerji, J.
40. I agree.