Calcutta High Court
Sk. Jahir & Ors vs Kolkata Municipal Corporation & Ors on 15 December, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G. A. No.3012 of 2010
A.P.O.T. No.532 of 2010
W. P. No.607 of 2010
Sk. Jahir & Ors.
Versus
Kolkata Municipal Corporation & Ors.
Mr. Lakshmi Gupta, Sr. Adv. with
Mr. Sakya Sen, Adv.
Mr. Srijib Chakraborty, Adv.
..for the appellant
Mr. S. Sengupta, Adv. with
Mr. D. Mondal, Adv.
..for the K.M.C.
Mr. A. K. Routh, Adv. With
Mr. S. Pal Chowdhuri, Adv.
..for the respondent no.8
BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Mrinal Kanti Sinha __________________________________________________________________ Date: 15th December, 2010 __________________________________________________________________ Heard learned Advocates for the parties. Assailing the judgment and order dated 17th August, 2010 passed by the learned Trial Judge in G.A. No.2097 of 2010 in connection with W.P. No.607 of 2010, this appeal has been preferred.2
By the said application, the present appellant prayed for being added as a party in the proceeding. The prayer of the present appellant for being added as a party was rejected by the learned Trial Judge, holding, inter alia, that appellant failed to prove his title as co-owner of the property which is the subject matter of the writ application namely, premises No.8E, Dent Mission Road, Kolkata 700 023 having an area more or less 7 kattah 12 chittacks of land.
While adjudicating the said writ application and considering the order, we are of the view that appeal could be disposed of along with the stay application. Accordingly, the appeal is treated as on day's list for final hearing. Since the contesting parties are appearing before us, service of notice of appeal and other formalities stand dispensed with. The impugned order dated 17th August, 2010 reads such:
"This is an application made by the applicant for his addition as party t this proceeding. Prayers made in the writ application are quoted below for ascertaining the reliefs sough for:
a) A writ in the nature of Mandamus do issue commanding the respondent Kolkata Municipal Corporation as to why they shall not be restrained from demolishing the petitioner's premises No.8E, Dent Mission Road, Kolkata-700 023 or any part or portion thereof;
b) A writ of Certiorari do issue directing the respondent Kolkata Municipal Corporation to trnsmit all the relevant records relating to the aforesaid case so that conscionable justice may be rendered to your petitioner;3
c) A writ of Prohibition do issue prohibiting the respondent Kolkata Municipal Corporation from demolishing the petitioner's premises No. 8E, Dent Mission Road, Kolkata-700 023 or any part or portion thereof to act in accordance with law;
d) Rule do issue in terms of prayers (a), (b) and (c) above;
e) An order of injunction be passed restraining the respondent Kolkata Municipal Corporation from demolishing the petitioner's premises No. 8E, Dent Mission Road, Kolkata-700 023 or any part or portion thereof;
f) Costs of and incidental to this application;
g) Pass such further or other order or orders as this Hon'ble Court may deem fit and
proper.
It is submitted by the learned Counsel appearing on behalf of the applicant that he is one of the co-owners of 8E, Dent Mission Road, Kolkata-700
023. Therefore, he is concerned with the reliefs sought for. It is further submitted by him that the applicant is also a co-owner in respect of 28, Karl Marx Sarani, Kolkata-700 023. Therefore, in the event of any confusion arises with regard to demolition of 28, Karl Marx Sarani (portion), his assistance is required for proper adjudication of the case. In support of the claim as a co-owner of 8E, Dent Mission Road, Kolkata-700 023, the learned Counsel relies upon the submissions made in paragraph-15 and then upon the statements made in paragraph-9.
It is submitted by the learned Counsel appearing on behalf of the petitioner that he has no objection with regard to addition of the applicant as a party-respondent to this proceeding.
It is submitted by the learned Counsel appearing for the added- respondent that the applicant has no legal right to be added as a party- respondent to this proceeding since no material is produced before this Court to show that he has right or interest in the premises in question, namely, 8E, Dent Mission Road, Kolkata-700 023.
Having heard the learned Counsels appearing for the respective parties as also considering the facts and circumstances of this case, on the basis of the materials available on record I find that no order can be passed with regard to addition of the applicant as a party-respondent to this proceeding on the basis of any submission made in paragraph-15 of this application. From the statements made in paragraph-9, I find that the applicant claims to be the co- owner of the building without furnishing a single document in support of his above claim. Therefore, in absence of any supporting document with regard to 4 his claim, I have no hesitation to hold that he is a busy body so far as the premises in question is concerned.
I do not find any substance in the submissions made on behalf of the applicant with regard to the demolition of 28, Karl Marx Sarani (Portion), Kolkata-700 023 in view of the prayers made in this writ application.
Therefore, I do not find that the addition of the applicant as a party to this proceeding is necessary for effective and complete adjudication of this case on the basis of the settled principles of law as laid down in the mater of Razia Begum vs. Anwar Begum, reported in AIR 1958 SC 886. The ratio laid down in the above matter has been repeated and reiterated by the Hon'ble Supreme Court in its decision of Udit Narain Singh vs. Additional Member, Board of Revenue, Bihar reported in AIR 1963 SC 786.
In view of the above, this application stands dismissed. There will, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities." The learned Trial Judge was not satisfied about the title as co-owner in respect of the concerned property which is the subject matter of the writ application and, accordingly, rejected the application for being added as a party in connection with the writ application. The writ petitioner one Md. Kasim filed the writ application seeking relief in the nature of mandamus restraining the Corporation from demolishing petitioner's premises 8E, Dent Mission Road, Kolkata 700 023. As no documentary evidence was filed along with the application for addition of party, learned Trial Judge did not believe the statement made in the application claiming title over the property as co-owner. It is a settled legal 5 position of law that application for addition of party could be considered on two situations namely, a) when a party approaches the Court is a necessary party meaning thereby in whose absence no order could be passed effectively and b) when a party is a proper party whose presence is necessary for complete and final adjudication on the question involved in the proceeding. Reliance may be placed in the judgment passed in the case of Balvant N Viswamitra vs. Yadav Sadashiv Mule reported in (2004) 8 SCC 706 which has been further relied by the Apex Court in subsequent judgment in the case of Ruma Chakraborty vs. Sudha Rani Banerjee reported in (2005) 8 SCC 140.
Since the Learned Trial Judge could not identify the co- ownership issue in absence of the documentary evidence, we are of the view that the order of the learned Trial judge cannot be said as illegal. From the stay application, however, it appears that the present appellant has annexed some documents regarding title over the property in question i.e. 8E, Dent Mission Road, Kolkata 700 023, without taking leave of this Court for producing additional evidence, as per law. Since those documents were not before the learned Trial Judge, the learned Trial Judge had no occasion to consider those to identify the co-ownership right of the present 6 appellant before us. We are also not taking judicial notice of those documents for the reason that no prayer made by filing any application to adduce additional evidence. Considering the aforesaid, we are not inclined to interfere with the order of the learned Trial Judge.
Hence, both the appeal and the stay application stand dismissd.
Urgent certified photocopy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
( Pratap Kumar Ray, J. ) ( Mrinal Kanti Sinha, J. ) AKGoswami