Calcutta High Court (Appellete Side)
Kallol Kumar Ghosh @ Banduri & Ors vs Howrah Municipal Corporation & Ors on 30 September, 2013
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
30.9.2013
ac
W.P. 24128(W) of 2013
Kallol Kumar Ghosh @ Banduri & Ors.
-vs-
Howrah Municipal Corporation & Ors.
Mr. Saptangshu Basu,
Mr. Ayan Banerjee,
Ms. Debasree Dhamali.
... For the Petitioners.
Mr. M. P. Gupta,
Mr. Sanjib Das.
... For the Private Respondent.
Ms. Smritikana Mukherjee, Mr. Debjit Mukherjee.
... For the Howrah Municipal Corpn.
Right from the beginning, the parties proceeded on the basis that the property in dispute is the joint property of the petitioners and their co-sharers, including the private respondent. Even in the earlier proceeding before the municipal authority as well as before this Hon'ble Court, the parties proceeded on the basis that the disputed property was the joint property belonging to the petitioners and their co-sharers, including the private respondent. In fact, the disputed property was admittedly brought in the hotchpot in the partition suit before the Civil Court and a preliminary decree for partition was passed by the Civil Court on consent given by the petitioners.
In this background, not only the municipal authority, but also this Hon'ble Court proceeded by accepting the position that the disputed property was still the joint property belonging to the petitioners and their other co-sharers, including the private respondent. As such, several orders were passed by the learned Single Judge as well as by the Hon'ble Division Bench of this Court while dealing with the earlier writ proceeding and/or the appeal arising therefrom, by accepting the position that the property-in-question was not the exclusive property of the petitioners and as such the municipal authority 2 was not justified either in mutating the petitioners' names as owners of the property in dispute and/or by allotting separate holding number to such property and/or sanctioning a building plan in favourof the petitioners.
In fact, the petitioners even in this writ petition have not claimed that the property in question is their exclusive property. However, in course of hearing of this writ petition, Mr. Basu, learned Senior Counsel, appearing for the petitioners submits that his clients purchased the disputed property with specific boundaries in Court-sale in 1944 and the said Court- sale was subsequently confirmed and by virtue of such Court- sale his clients became the absolute owners of the said property. Mr. Basu, further, submits that his clients also disclosed in the application for mutation as well as in the application seeking sanction of building plan that his clients became the absolute owners of the said property by virtue of such Court-sale and on the basis of the said document of title, the mutation was allowed after allotting a separate holding number to the petitioners' property and the building plan was sanctioned permitting the petitioners to raise construction thereon. Mr. Basu, further, submits that his clients under improper legal advice gave consent for passing a preliminary decree in the suit, though no such occasion had arisen to pass any preliminary decree in the said suit as the disputed property was not the joint property of the petitioners and the other co-sharers. Mr. Basu, thus, submits that his clients has been advised to take necessary steps for recall of the said preliminary decree.
In the background of such submission of Mr. Basu, this Court feels that the entire matter has to be given a relook, once the sale certificate through which his clients have purchased the property in dispute exclusively is brought on record.
Accordingly, leave is given to the petitioners to file a supplementary affidavit for bringing the sale certificate and 3 other relevant documents on record. Such supplementary affidavit should be filed within two weeks after the reopening of the Court after the Puja vacation.
The petitioners are directed to serve copy of the said supplementary affidavit upon the respondents and/or their learned Advocates-on-record immediately thereafter. Leave is granted to the respondents to file affidavit-in-opposition to the writ petition as well as the supplementary affidavit within two weeks thereafter, reply, if any, be filed by the petitioners within a week thereafter.
Let this matter be listed for hearing six weeks after the reopening of the Court after the Puja vacation.
The order of demolition passed by the Howrah Municipal Corporation which is impugned in this writ petition will remain stayed until further order.
Status-quo with regard to the impugned construction as on today will be maintained. The petitioners are also restrained from creating any third party interest in the said premises and/or from inducting any tenant and/or parting with any possession of the disputed property or any part thereof until further order. The petitioners are also restrained from raising any further construction in the said premises until further order.
The municipal records which are produced before this Court by Mr. Mukherjee is returned to him.
The original sale certificate which is also produced by Mr. Basu in Court today is also returned to Mr. Basu.
(Jyotirmay Bhattacharya, J.)