Calcutta High Court
Indian Craft Village Trust And Anr. vs Calcutta Municipal Corporation And ... on 9 July, 2007
Equivalent citations: 2007(4)CHN327, AIR 2007 (NOC) 2300 (CAL.)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. To save the Trust Property, a Public Charitable Trust has come before this Court with an application under Article 226 of the Constitution of India by challenging the illegal termination of the lease by the Kolkata Municipal Corporation (hereinafter referred to as KMC) and its demand for possession of the petitioners' leasehold property from the petitioners.
2. Admittedly by a registered lease-deed dated 31st May, 1994, KMC demised 19.6 acres of land at J.B.S. Haldane Sarani to the petitioner No. 1 being a Public Charitable Trust (hereinafter referred to as the Trust) for a period of 30 years for setting up a craft village in the said premises, on the terms and conditions as contained in the said deed.
3. The physical possession of the said premises was handed over by KMC to the said Trust on 28th September, 1997. Subsequently by another Supplementary Indenture dated 9th July, 1999 executed between the KMC and the Trust, it was clarified that an area of 18.11 acres of land at the said premises was demised in favour of the Trust instead of 19.6 acres, as mentioned in the earlier deed dated 31st May, 1994.
4. The terms and conditions of the said lease were settled between the KMC and the Trust under the mediation of the State Government with its high dignitaries including the then Chief Minister of West Bengal. Apart from the lease rent which was agreed to be paid by the Trust to the KMC, the State Government also assured payment of compensation to the tune of Rs. 2.20 crores to be made to the KMC in advance as balance cost for acquisition of land by the State Government.
5. Even after grant of such lease, KMC created obstruction at the time when the Trust was constructing a boundary wall to protect its leasehold property and thereby giving rise to a writ petition being W.P. No. 1696 of 2001. On 28th August, 2001, an order was passed by a learned Single Judge of this Court in the said writ petition giving liberty to the Trust to erect the boundary wall less than three meters in height with prior intimation to the KMC.
6. Subsequently by the impugned notice dated 19th December, 2001 issued by the Chief Valuer and Surveyor-I of the KMC, the Secretary of the Trust was intimated about the decision of the Mayor dated 24th August, 2001 and MIC resolution dated 24th August, 2001 regarding cancellation of the petitioners' lease by KMC on the ground of forfeiture. By the impugned notice, the petitioners were also requested to hand over the possession of the said land immediately upon receipt of the said notice.
7. The reason for invocation of the power of termination of the lease on the ground of forfeiture has not been disclosed to the Trust. Even the decision which was taken either by the Mayor or by the members of the MIC on 24th August, 2001 as referred to in the impugned notice, was not supplied to the Trust.
8. Challenging the legality of termination of the lease by KMC as well as the legality of demand for immediate possession, the Trust and its Secretary filed instant writ petition, inter alia, praying for issuance of a writ of mandamus commanding the respondents to forthwith recall, rescind, withdraw and/or cancel the impugned notice dated 19th December, 2001 and also the resolution of the MIC and the order of the Mayor both dated 24th August, 2001 and also to desist the respondents from giving effect to and/or further effect to the impugned notice, the said resolution of the MIC and the said order of the Mayor and further to desist the respondents from dispossessing the petitioners from the said leasehold property except by complying with due process of law.
9. An interim order was passed by Justice Barin Ghosh (as His Lordship then was) on 4th February, 2002 whereby it was directed that without leave of this Court, let the petitioners' possession by not interfered with in respect of the leasehold premises in question of which lease has been cancelled without due process of law. Subsequently when the said writ petition came up for hearing before His Lordship, an adjournment was sought for by the parties for sorting out the disputes between them out of Court. An adjournment was also granted by His Lordship by taking note of such submission of the learned Counsel appearing for the parties.
10. The parties, in fact, with the participation of very high dignitaries of the State including the then Chief Minister of the State and the then Mayor of the KMC, worked out a scheme for settlement of the disputes. The State Government being desirous of setting up a permanent trade fair complex on the said plot of land, introduced West Bengal Trade Promotion Organization (hereinafter referred to as WBTPO), a proposed company limited by share, for implementation of the said project on the said plot of land.
11. Ultimately it was unanimously resolved by all the trustees that the Trust will surrender 14.16 acres of land out of 18.41 acres of land at the said premises to KMC as KMC, in consideration of such surrender, has agreed to allot a plot of land measuring about 2.75 acres more or less adjacent to the land measuring about 3.95 acres more or less to be retained by the trustee after making surrender of the said 14.16 acres of land. Thus, in lieu of such surrender, the Trust will enjoy an allotment of land measuring about 6.70 acres of land.
12. Since the area of allotment of the Trust will be reduced, it was decided by the Government and the Municipal authorities that the proportionate share of the balance cost of acquisition of land with regard to the Trust payable by the Government will be reduced proportionately. Thus, the liability of payment of Rs. 2.20 acres by the State Government to KMC which was initially settled, as aforesaid, stood reduced to Rs. 75.20 lakhs. It was further agreed upon that even if the State Government commits any default or causes any delay in payment of the aforesaid sum of Rs. 75.20 lakhs to KMC, still then the lesson will not hinder the lessee from setting up the craft village by withdrawing any sanction on the ground of non-payment of the said amount by the State Government.
13. The terms on which the said 14.16 acres of land will be settled by KMC to WBTPO for setting up a permanent trade fair complex therein were also settled between the KMC and the WBTPO. The proposed lessee being WBTPO also agreed to sub-lease 0.80 acres of land out of the land to be surrendered by the Trust, to the Trust, as aforesaid. The said WBTPO also agreed to share the entire frontage of the plot of Park Circus Connector with the petitioners' Trust on 50:50 basis. The KMC also agreed to refund a sum of rupees eight lakhs which the petitioners spend towards rehabilitation expenses of the encroachers of a portion of the land to be surrendered together with interest to be calculated on the nationalised bank interest basis to the Trust within 30 days from the date of execution of the necessary documents.
14. On the basis of such settlement, several deeds/documents were executed amongst the parties, viz., KMC, the Trust and the proposed lessee on the same day and in one sitting on 10th October, 2003. Those deeds and/or documents are as follows:
(i) A deed of modification and surrender was executed on 10th October, 2003 between the KMC and the Trust incorporating therein the terms and conditions as mentioned above, on which the Trust agreed to surrender 14.16 acres of land from the demised plot of land in favour of the KMC.
(ii) A memorandum of agreement was executed on 10th October, 2003 between the KMC and the WBTPO, wherein KMC agreed to hand over the advance and permissive possession of land measuring 18.41 acres more or less which is inclusive of the land agreed to be surrendered by the Trust in favour of KMC to WBTPO on or before 31st October, 2003. KMC agreed to execute a formal lease deed in favour of WBTPO after its incorporation. It is also provided therein that WBTPO will be permitted to sub-lease a part of the land to the Trust.
(iii) A memorandum of agreement was executed on 10th October, 2003 between WBTPO and the Trust, wherein the WBTPO agreed to sublease 0.80 acres of land out of 18.41 acres of land which was agreed to be demised by KMC in favour of WBTPO. It was also agreed between the parties that the frontage along the Park Circus Connector (H.B.S. Haldane Avenue) will be shared exactly on 50:50 basis between ICVT and WBTPO.
(iv) Certificate was granted by the managing trustee of ICVT acknowledging receipt of delivery of possession of 0.80 acres of land from WBTPO on 10th October, 2003.
15. By referring to the deed of modification and surrender dated 10th October, 2003, the respondents claim that simultaneously on execution of the said deed on 10th October, 2003, the Trust surrendered the lease by giving up possession of an area of 14.16 acres of land from the said property in favour of KMC. To support such claim, admission made by the Trust regarding surrender of lease in various parts of the said documents was referred to by the learned Counsel appearing for the respondents.
16. The petitioners, however, dispute such claim of the respondents regarding surrender of lease and/or giving delivery of possession of 14.16 acres of land to KMC. The petitioners claim that though they agreed to the scheme for settlement of the dispute between them on the terms and conditions, as mentioned in the said deed, but in fact they neither surrendered their interest in the leasehold property nor delivered possession of any part thereof in pursuance of the said deed. The petitioners further claim that they were dispossessed forcibly from the entire leasehold property on 2nd March, 2003 in violation of the injunction order passed on 4th February, 2002.
17. Subsequently on 20th March, 2006 lease deed was executed between the KMC and the WBTPO by letting out 18.41 acres land, as particularly mentioned in the schedule of the said deed, in violation of the interim injunction passed by this Court on 4th February, 2002, as aforesaid.
18. A dispute of new dimension between the parties was evolved from this juncture when the Municipal authority without fulfilling the reciprocal promises made by KMC in the deed of modification and surrender dated 10th October, 2003 allegedly dispossessed the petitioners from the said property by force and leased out a part of the said property together with the other plot of land in favour of WBTPO on 20th March, 2006 in violation of the interim order passed by this Court, as aforesaid. Though there was a dispute between the parties with regard to the actual date of dispossession of the petitioners and/or delivery of possession of the said 14.16 acres of land by the petitioners, but fact remains that status quo with regard to possession as on the date of passing the interim order, i.e., as on 4th February, 2002 was altered without the leave of the Court and in violation of the said order of injunction.
19. Thereafter when the pendente lite transferee, viz., the WBTPO made an attempt to raise construction on the said land and the CESC authority disconnected the supply of electricity of the petitioners therein, the petitioners filed an interlocutory application claiming the following interim orders against the CESC Ltd. and WBTPO without impleading those organisations as parties in the writ petition:
(a) Leave to serve CESC Limited having its office at CESC House, 1, Chowringhee Square, Kolkata.
(b) Leave to serve West Bengal Trade Promotion Organisation having its office at 5, Council House Street, Kolkata.
(c) A mandatory interim order directing the CESC Ltd. to immediately restore the electricity connection to the separate meter of the office of the petitioner No. 1.
(d) An order of injunction restraining the respondent authorities and WBTPO from interfering with the possession of the leasehold land of the petitioner in any manner whatsoever, which may amount to a violation of the indenture of lease dated 9th July, 1999.
(e) An order of injunction restraining the respondent authorities and WBTPO from undertaking any further construction or civil work either temporary or permanent on the entire plot of land of 18.11 acres demised to the petitioner No. 1 through the registered indenture of lease dated 9th July, 1999.
(f) Ad interim order in terms of prayers above.
(g) Pass any other order or orders and/or direction or directions as this Hon'ble Court may deem fit and proper.
20. The said application was registered as G.A. No. 2196 of 2006. Pending disposal of the said application, this Court by an order dated 27th September, 2006 directed the parties to maintain status quo with regard to possession as well as nature and character of the land measuring about 7.50 acres of land (i.e. 3.95 acres which the petitioners were allowed to retain in terms of the deed of modification and/or surrender dated 10th October, 2003 and the plot of land measuring about 2.75 acres which was agreed to be allotted in favour of the petitioners by the Municipal authority in terms of the said deed of modification and/or surrender as well as the land measuring about 0.80 acres, the possession of which was claimed to have been given by WBTPO to the petitioners aggregating to 7.50 acres of land) till 7th December, 2006 or until further order, whichever is earlier.
21. It was also mentioned in the said order that the construction which will be made by WBTPO on the land in dispute measuring about 14.16 acres of land which was alleged to have been surrendered by the petitioners in terms of the said deed of modification and/or surrender, will abide by the result of the said applications.
22. KMC also filed an application being G.A. No. 2255 of 2006, inter alia, praying for an order disposing of the writ petition finally by passing no order thereon and/or to pass such appropriate order as will bring the said litigation to an end by taking note of the subsequent events, as mentioned above.
23. Another front of the litigation was emerged when three of the trustees of the petitioners' Trust, viz., ICVT filed an application being G.A. No. 2254 of 2006, inter alia, seeking the following reliefs:
a) A writ petition being W.P. No. 140 of 2002 and the application made therein being G.A. No. 2196 of 2006 be dismissed as withdrawn and all orders passed therein be vacated;
b) Stay of all the proceedings in connection with the writ petition being W.P. No. 140 of 2002 and applications therein pending disposal of the present application;
c) Revocation of the authority of the writ petitioner No. 2 or any other persons to continue or proceed with the W.P. No. 140 of 2002 and/or any application therein;
d) Ad interim order in terms of prayers as above;
e) Such further or other order or orders be made and/or directions be given as this Hon'ble Court may deem fit and proper.
24. Looking at the said petition, this Court has no hesitation to hold that the trustees are now divided in its decisions regarding continuation of the writ petition in the altered situation. The majority trustees are in favour of continuation of the proceeding. The minority group consisting of three ex officio trustees does not want to proceed with the writ petition any further due to changes occurred during the pendency of the writ petition, as aforesaid.
25. In the application filed by three of the trustees being G.A. No. 2254 of 2006, the locus of the petitioners to continue the proceeding has also been challenged as the petitioner No. 2 who was the Secretary of the said Trust at the time of filing of the writ petition ceased to be the Secretary of the said Trust during pendency of this writ petition. Thus, the competence of the petitioner No. 2 to represent the petitioner No. 1 and to continue the writ petition have been seriously challenged by the three co-trustees in the said application.
26. WBTPO, the pendente lite transferee has also challenged the maintainability of this writ petition and the application for interim relief filed by the writ petitioners being G.A. No. 2196 of 2006 by alleging that in view of the altered situation caused to have been occurred by the parties including the writ petitioners during the pendency of the writ petition, the relief which was sought for in the writ petition initially has now been rendered infructuous.
27. WBTPO also claims that since the WBTPO is a bona fide transferee and since they have already taken steps for implementation of the project of setting up a permanent trade fair complex on the land in question in an altered situation to which the petitioners were also consenting parties, the right of the WBTPO in the land in question, cannot be disturbed and/or affected by any order to be passed by this Court in the pending applications, particularly when WBTPO has not been impleaded as a party in the writ petition though all reliefs which have been sought for by the petitioners in the supplementary affidavit filed by them in connection with the writ petition, are against the WBTPO on the basis of the allegations made against WBTPO.
28. The learned Counsel, appearing for the respective parties as well as the learned Counsel, appearing for the pendente lite transferee and the CESC authority made elaborate submission in support of their respective clients in this proceeding.
29. Before indicating various submissions made by the Counsel appearing for the respective parties as well as of the transferee pendente lite and CESC authority in great details, this Court considered it fit to deal with the objection regarding maintainability of this writ petitionfirst, inasmuch as, such a question has not only been raised by the respondents and the transferee pendente lite but also been raised by three of the co-trustees of the petitioner Trust.
30. On consideration of the said objection, if it is found that the writ petition is still maintainable, then this Court will consider the other objections of the respondents as well as of the subsequent transferees which practically relate to the effect and/or consequences of the documents admittedly executed between the KMC, ICVT and WBTPO on 10th October, 2003, as referred to above, during the pendency of this writ petition.
31. Let me now first of all consider the objection regarding the maintainability of this writ petition hereunder.
Re: Maintainability of this writ petition.
32. Mr. Anindya Mitra, learned Senior Counsel, appearing on behalf of three of the trustees of ICVT being the ex officio trustees submitted that the Trust has no legal entity. Mr. Mitra, however, initially did not dispute the competence of the Secretary of the Trust to file this writ petition representing the said Trust, as according to him, the Trust can no doubt be represented by the Secretary. The petitioner No. 2 who was the Secretary at the time of filing this writ petition, according to Mr. Mitra, was competent to file the writ petition by representing the Trust. As a matter of fact, Mr. Mitra moved the writ petition initially on behalf of the Trust and obtained the interim order on 4th February, 2002.
33. Though Mr. Mitra did not challenge the initial locus of the petitioner No. 2 to represent the Trust and to file the writ petition, but still then, he contended that since during the pendency of this writ petition, the petitioner No. 2 ceased to be a trustee of the said Trust, the further proceeding of the writ petition, cannot be continued by the petitioner No. 2.
34. By referring to the various provisions of the Trust deed being Annexure 'A' to the said application, Mr. Mitra pointed out that the management and control of the Trust vested in the managing trustee who will act in consultation with the other trustees and without prejudice to the generality of the provisions mentioned in the said Trust deed, the trustees shall, with the prior concurrence of the managing trustee, be entitled to exercise and execute and do all or any of the powers, acts and deeds as mentioned in Clause (vii) of the said deed including to initiate defend, adjust, settle, compromise, compound and refer to arbitration all actions, suits, claims, demands and proceedings regarding the Trust properties and assets.
35. By referring to the said provisions, Mr. Mitra submitted that trustees must act jointly as the power of management vested in the trustees as a whole and not in the managing trustee alone. Mr. Mitra, thus, submitted that when the trustees are divided here in their decision regarding continuation of the said writ petition, the writ petition should not be allowed to be continued at the instance of some of the trustees. In support of such submission, Mr. Mitra relied upon the following decisions of different High Courts:
(i) AIR 1984 Del 145 (Duli Chand v. M.P.T.C. Charitable Trust)
(ii) 2004(1) CLJ (Cal.) 283 (Numazar Dorab Mehta and Ors. v. Assam Co. Ltd.).
36. In both the aforesaid cases, it was held that a suit by one of the cotrustees on the basis of the resolution passed unanimously by all other cotrustees authorising the said trustee to file the suit would not be maintainable as the position of trustees is exactly the same as of any other co-owners who must necessarily join together to file a suit. Those decisions uniformly declare that some of the co-trustees cannot maintain an action in a Court of Law in the absence of the other co-trustees.
37. Mr. Mitra further submitted that even the managing trustee did not initially come forward by taking the cause of the Trust. Mr. Mitra further argued that since the Trust surrendered 14.16 acres of land out of its lease-hold interest in the land in question in favour of KMC during the pendency of this writ petition, the petitioner has no subsisting right and/or interest in respect of the land so surrendered and as such the petitioner cannot claim any relief in respect of the said land in the altered situation.
38. Mr. Mitra further submitted that even the subsequent changes have not been brought on record by way of amendment of the writ petitioner by the petitioners. According to Mr. Mitra, unless the changes which occurred during the pendency of the writ petition are brought on record by way of amendment, the Court cannot grant any relief to the petitioner even by moulding the prayer in an altered situation. Mr. Mitra further argues that when the subsequent changes have no nexus with the initial reliefs claimed in the writ petition on the basis of the cause of action existed as on the date of filing of the writ petition, subsequent events as mentioned in the supplementary affidavit, cannot be taken note of by this Court and no relief can be granted by this Court on the basis of such subsequent events.
39. Thus, on the grounds, as aforesaid, Mr. Mitra representing the ex officio trustees, prayed for dismissal of this writ petition by treating the same as withdrawn.
40. Mr. Mitra further submitted that the application for interim relief should also be dismissed as the said application which was not affirmed by either of the trustees or by any person duly authorised by the trustees, cannot be regarded as a competent application. Mr. Mitra submitted that Uddalak Ghosh who affirmed the said affidavit was not authorised by his clients and as such he cannot affirm any affidavit representing the Trust. Accordingly, Mr. Mitra prayed for dismissal of the said application also.
41. Mr. Saktinath Mukherjee, learned Senior Counsel, appearing for the petitioners, refuted the said submission of Mr. Mitra by submitting that legality of initial filing of the writ petition by the Trust represented by its Secretary, cannot be challenged by Mr. Mitra who himself appeared for the cause of the Trust representing the said Trust and obtained the interim order therein.
42. Mr. Mukherjee further submitted that if the initial filing of the writ petition by the Trust represented by its Secretary, is not challenged, then continuation of the writ petition by the said Secretary even after he ceased to be a trustee during the pendency of this writ petition, cannot be challenged in view of Order 22 Rule 10 of the Civil Procedure Code which authorises the person who initiated the proceeding legally to continue the said proceeding even after change and/or devolution of his interest in his successor occurred during the pendency of this writ petition.
43. By referring to Order 22 Rule 10 of the Civil Procedure Code, Mr. Mukherjee submitted that if the successor upon whom the interest of the original plaintiff devolves during the pendency of the suit, wants to proceed with the suit, he can do so only if leave is granted by the Court in favour of such successor to continue the proceeding. Thus, unless such leave is granted in favour of the successor, the successor cannot continue the proceeding.
44. Mr. Mukherjee, thus, submitted that Order 22 Rule 10 has made it clear that the right to continue the suit and/or any action by the party who initiated such suit and/or proceeding is not defeated merely because of change of his interest during the pendency of the litigation.
45. In support of such submission, Mr. Mukherjee relied upon the following decisions of the Hon'ble Supreme Court:
(i) (Dhurandhar Prasad Singh v. Joyprakash University)
(ii) (Jaskirat Datwani v. Vidyavati)
46. By referring to the resolution adopted by the majority members on 3rd August, 2006 being Annexure 'X' to the affidavit-in-opposition filed by the writ petitioner in connection with the application being G.A. No. 2254 of 2006. Mr. Mukherjee pointed out that the majority members resolved in the said resolution that the writ petition being W.P. No. 140 of 2002 filed by Indian Craft Village Trust should be prosecuted to its logical end by all legal means available and the said application being G.A. No. 2254 of 2006 being ex facie against the interest of the Trust, ought not to have been pressed before the Hon'ble High Court on behalf of the applicants/ex officio trustees.
47. By referring to the said resolution, Mr. Mukherjee submitted that though the minority group of trustees may not agree with the majority decision and even if they dissented to the majority decision, still then they cannot act against the decision of the majority trustees. Mr. Mukherjee further argued that a trustee cannot act against the interest of the Trust. The prayer which has been sought for by three ex officio trustees in their application being G.A. No. 2254 of 2006, is absolutely against the interest of the Trust, inasmuch as, in the event such prayer is allowed, the Trust will lose its right in the Trust property. In effect Mr. Mukherjee submitted that trustees cannot act against the interest of the Trust.
48. Mr. Mukherjee further submitted that the decisions which were cited by Mr. Mitra reported in AIR 1984 Del. 145 and in 2004(1) CLJ 283, have no application in the facts of the instant case. Mr. Mukherjee argued that in case of private trust, individual trustee cannot maintain any suit on behalf of the Trust. The principles which were so laid down in the above decisions, cited by Mr. Mitra, have no application in case of a Public Charitable Trust, inasmuch as, the provisions of the Trusts Act do not apply to Public Charitable Trust in view of Section 1 of the Trusts Act.
49. Mr. Mukherjee further submitted that in case of religious endowment and/or Public Charitable Trust, anyone of the trustees and even the worshipper and/or beneficiary under the Trust, can maintain a suit to protect the Trust property of a Public Charitable Trust and/or of the deity. Mr. Mukherjee went a step further by submitting that even the Court itself acting as a representative of the sovereign, can protect the interest of a Public Charitable Trust whenever the Court finds that the interest of the Public Charitable Trust is endangered. To strengthen such submission, Mr. Mukherjee relied upon the following decisions:
(i) (Ram Saroop Dasji v. S.P. Sahi),
(ii) (Ram Dularey v. Ram Lal and Ors.),
(iii) [J.P.Srivastava and Sons (P) Ltd. v. Gwalior Sugar Co. Ltd.].
50. Lastly, Mr. Mukherjee submitted that the question of locus of the petitioner in case of public interest litigation, has a different meaning than that of the locus of the petitioner in a private interest litigation. According to him, when in a case of private interest litigation, public interest is involved, concept of locus of petitioner will be identical to the concept of locus in case of Public Interest Litigation.
51. Mr. Mukherjee, thus, submitted that since public interest is involved in this writ petition, the writ petition cannot be dismissed for want of locus of the petitioners due to cessation of trusteeship of the petitioner No. 2 during the pendency of this writ petition, particularly when the property of a Public Charitable Trust is endangered. In support of such submission Mr. Mukherjee relied upon the following decisions of the Hon'ble Supreme Court:
(i) (vii&viii) (Guruvayoor Debaswom Managing Committee v. C.K. Rajan)
(ii) (Ashok Lanka v. Rishi Dixit).
52. To put an end to the dispute regarding the locus of the petitioners to continue this proceeding, Rajib Gujral, the Managing Trustee of the said Charitable Trust, has come forward with an application for getting himself added as a co-petitioner in this writ petition. Even the ex officio trustees did not hesitate to oppose such prayer of the managing trustee. Such an attitude of the said ex officio trustees proves beyond doubt that they are hand in globe with the respondents. Of course, such behaviour is not unnatural from the ex officio trustees who are all Government officials.
53. Mr. Mukherjee, thus, submitted that when the managing trustee has come forward to protect the interest of the Public Charitable Trust and also to materialise the resolution adopted by the trustees on 3rd August, 2006, though at a late stage, the objection of the ex officio trustees regarding maintainability of this writ petition should not be given any importance. In substance, Mr. Mukherjee submitted that when a trustee of a Public Charitable Trust has come forward to protect the interest of the Trust with the consent and concurrence of all the trustees, the maintainability of this writ petition for want of locus of the petitioners, cannot be given any importance in view of the principles laid down by the Hon'ble Supreme Court in the aforesaid citations.
54. Let me now consider the substance of the submissions of the learned Counsel of the respective parties on the question regarding maintainability of this writ petition hereunder:
55. Defect in initial filing of the writ petition has not been challenged by Mr. Mitra's client. Even the locus of the petitioner No. 2 to file the writ petition on behalf of the Trust has also not been challenged by Mr. Mitra's client. In fact, Mr. Mitra appeared on behalf of the petitioners to support the cause of the Trust and obtained the interim order on 4th February, 2002.
56. This Court is now required to consider as to how far the cessation of trusteeship of the petitioner No. 2 during pendency of this writ petition affects his right to continue the proceeding further.
57. Provision contained in Order 22 Rule 10 of the Code of Civil Procedure recognises the right of the plaintiff and/or petitioner to continue the suit and/or litigation even after devolution of the interest in his successor. As such, the right to continue the proceeding by the petitioner No. 2 representing the Trust, viz., the petitioner No. 1 herein, cannot cease automatically after cessation of his trusteeship. Order 22 Rule 4 of the Code of Civil Procedure, however, gives a right to the successor upon whom the interest of the plaintiff and/or the petitioner devolves, to continue the suit and/or proceeding with the leave of the Court. If the successor having knowledge of this litigation, does not come forward to proceed with the suit and/or litigation with the leave of the Court, then the decision which will be passed in such a proceeding will bind the successor of the plaintiff and/or petitioner. The said principle was settled long back by the Division Bench of this Hon'ble Court in the case of Raicharan Mondal and Anr. v. Bishwanath Mondal and Ors. reported in 20 CLJ 107, wherein it was held that the trial of a suit cannot be arrested merely by reason of devolution of interest of the plaintiff in his successor. It was further held therein that the successor-in-interest may, if he chooses, obtain leave of the Court under Order 22 Rule 10 of the Code of Civil Procedure to continue the suit, but if he does not do so, the original plaintiff may continue the suit and his successors will be bound by the result of the litigation. The consequence will be that the plaintiff, if successful, will obtain a decree which will enure to the benefit of his successor.
58. The said principle has been reitereated by the Hon'ble Supreme Court in a different language in the decision of Dhurandhar Prasad Singh (supra), wherein it was held that when under Order 22 Rule 10 there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the persons who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested to apply to the Court under Order 22 Rule 10 of the Civil Procedure Code for leave to continue the suit. It was further held therein that it is obligatory upon the successor to seek such leave and to continue the proceeding and if such a successor does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record and yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he clouded with the adversary.
59. Again, I find reiteration of the said principle in the subsequent decision of the Hon'ble Supreme Court in the case of Jaskirat Datwani (supra), wherein it was held that if no step is taken by the transferee pendente lite to continue the proceeding by obtaining leave of the Court, then the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. It was held therein that the transferee would continue to be bound by the decree which will be passed in the suit, particularly when the transferee had the knowledge of the proceeding.
60. Here in the instant case, the trustee who has now become the Secretary of the said Trust, has not come forward to continue the proceeding with the leave of the Court. As such, the right of the petitioner No. 2 to continue the proceeding by representing the Trust, even after cessation of his trusteeship, cannot be denied in view of the provisions contained in Order 22 Rule 10 of the Code of Civil Procedure.
61. The next question is as to whether one of the trustees can maintain this writ petition in the absence of his co-trustees.
62. According to Mr. Mitra, the petitioner No. 2 alone cannot maintain this writ petition by representing the Trust. In support of such contention, Mr. Mitra also relied upon the decisions reported in AIR 1984 Del. 145 and 2004(1) CLJ 283. In those decisions, it is no doubt held that one of the trustees, cannot maintain a suit for eviction in the absence of the other co-trustees. The said decisions were given in the cases where one of the trustees and/or some of the trustees of a private trust, filed a suit for eviction against a tenant of the Trust. In such suits, it was held by both Delhi High Court as well as by our High Court that suit at the instance of one or some of the trustees of a private Trust is not maintainable.
63. The principles laid down in those decisions, have no application in the facts of the present case, as it is rightly pointed out by Mr. Mukherjee that the provisions of the Trusts Act, is not applicable to Public Charitable Trust in view of Section 1 of the Trusts Act. As a matter of fact, the Hon'ble Supreme Court in the case of J.P. Srivastava and Sons (P) Ltd. v. Gwalior Sugar Co. Ltd. , did not approve the decision of the Delhi High Court in the case of Duli Chand (supra), as universally true. In the said decision, the Hon'ble Supreme Court held that although, as a rule, trustees must execute the duties of their office jointly, but this general principle is subject to the following exceptions when one trustee may act for all:
(i) where the Trust deed allows the Trust to be executed by one or more or by a majority trustees; (ii) where there is expressed sanction or approval of the act by the co-trustees; (iii) where the delegation of power is necessary; (iv) where the beneficiary competent to contract consent to the delegation; (v) where the delegation to a co-trustee is in regular course of the business; (vi) where the co-trustee merely gives effect to a decision taken by the trustees jointly.
64. Here is the case, where this Court finds that the exception as indicated in point number six above, is attracted. It is not the case of Mr. Mitra's clients that Mr. Mitra's clients objected to the filing of the writ petition by the petitioner No. 2 representing the Trust initially. Even the resolution adopted in the meeting held on 3rd August, 2006 supports the continuation of the proceeding.
65. Under such circumstances, this Court holds that the petitioner No. 2 alone can continue the proceeding and continuation of such proceeding by the petitioner No. 2 representing the Trust, cannot be objected to by the minority group which has no authority to act contrary to the decision of the majority group.
66. That apart, the duty of the trustees is to protect the Trust property. Trustees cannot do anything which is prejudicial to the interest of the Trust. The application which has been filed by Mr. Mitra's clients, seeking dismissal of this writ petition as withdrawn, cannot be regarded as a step which will enure to the benefit of the Trust. The Trust property is endangered. As such, it is the duty of the trustees to protect the Trust property of a Public Charitable Trust.
67. It is rightly pointed out by Mr. Mukherjee that whenever the Trust property belonging to a Public Charitable Trust is endangered, it is the duty of the Court which is a representative of the sovereign to protect the Public Charitable Trust. The principles laid down in the decision reported in 1946 Privy Council 34 (supra) and in (supra), have reminded me about the duty of the Court to protect the Trust property when the Public Charitable Trust is endangered.
68. This Court is also not unmindful about the principles as laid down by the Hon'ble Supreme Court in the decisions reported in 2003(7) SCC 456 and in , as referred to above, wherein the Hon'ble Supreme Court uniformly held that even in a case where a petitioner might have moved the Court in his private interest and not for redressal of his personal grievances, the Court in furtherance of the public interest, may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
69. Here in the instant case, though it is true that the litigation is in the nature of private interest litigation, but since the interest of the public at large is involved in such litigation, this Court in furtherance of the public interest, thinks it fit and necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. As such, when the Public Charitable Trust is at stake, this Court as a representative of the sovereign, can certainly enquire into the cause of such litigation and disposes of the same on its own merit in accordance with law and that too even by ignoring the trivial issue regarding maintainability of this writ petition at the instance of the petitioner No. 2, as he ceased to become a trustee during the pendency of this writ petition.
70. Be it mentioned here, that the managing trustee has now come forward, though at a late stage, to protect the interest of the Trust by joining himself as co-petitioner in this writ petition. Managing trustee is no doubt authorised on behalf of the Trust to maintain litigation for the benefit of the Trust.
71. This Court thus holds that the objection regarding maintainability of this writ petition and/or continuation thereof by the petitioner No. 2, as raised by Mr. Mitra's clients in their application being G.A. No. 2254 of 2006, cannot be sustained. The said application thus stands rejected.
72. This Court thus declares that the writ petition is maintainable and the petitioner No. 2 can continue the proceeding as representative of the Trust for the reasons recorded hereinabove.
73. Let me now deal with the submissions of the learned Counsel of the respondents as to whether the Writ Court can give relief to the petitioners by moulding the prayers in the alternative scenario.
Re: How far Moulding of Relief is permissible in an altered situation when the subsequent events have no nexus with the original relief claimed in the writ petition.
74. Mr. Jayanta Mitra, learned Senior Counsel, appearing for the Kolkata Municipal Corporation, submitted that if the original proceeding has become infructuous by the subsequent events, it will be the duty of the Court to dispose of such infructuous litigation. Mr. Mitra thus submitted that when the subsequent events have no nexus with the original relief claimed, Court cannot take note of such subsequent events giving rise to a new cause of action, to give relief to the petitioners by moulding the prayers in altered situation. In support of such submission, Mr. Mitra relied upon the following decisions of the Hon'ble Supreme Court:
(i) (Chandra Prakash v. State of U. P.)
(ii) (Shipping Corporation of India Ltd. v. Machado Brothers).
75. It was held in the aforesaid decisions that when the original proceeding has become infructuous by subsequent events, it will be the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. It was further held therein that for the said purpose, it will be open to the parties concerned to make an application under Section 151 of the Code of Civil Procedure to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. It was further held therein that of course, when such application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact been rendered infructuous or not.
76. The principles laid down in the aforesaid decisions, thus, impose a duty upon the Court to enquire as to whether the relief which has been prayed for in the writ petition has become infructuous or not in the facts of the altered situation. An application being G.A. No. 2255 of 2006 has also been filed by Mr. Mitra's client, inter alia, praying for disposal of the writ petition finally by passing no order thereon by taking note of the subsequent events. The subsequent events which have taken place during the pendency of this writ petition have already been narrated above. As such, this Court does not think it necessary to reiterate the same herein again. Suffice is to say that subsequent events can be taken note of, if it is found that the situation which was prevalent as on the date of filing of this writ petition really has not been changed by execution of various deeds amongst the parties to the litigation including the transferee pendente lite.
77. To resolve the said dispute, this Court is required to enquire into the legality and/or validity of those deeds and the admissibility thereof in this proceeding.
78. Execution and/or registration of the lease deed dated 31st May, 1994 by KMC in favour of the petitioner Trust for demising 18.41 acres of land at the said premises is not disputed. Record of this proceeding reveals that an interim order was passed in this writ petition on 4th February, 2002 whereby it was directed that without leave of this Court, let the petitioners' possession be not interfered with in respect of the leasehold premises in question of which lease has been cancelled without due process of law.
79. No material has been placed before this Court by either of the parties to show that any leave was obtained from this Court permitting the parties to alter the possession of the petitioners in the said leasehold property. Thus, any alteration in possession in the leasehold property without the leave of the Court during the continuance of the interim order of injunction, is unauthorized and illegal and as such the Court has a duty to restore the possession of the parties who was in possession of the leasehold property as on the date of passing of the order of injunction.
80. Now an allegation has been made against the petitioners as they have also consented to such alteration and in fact they are also instrumental to the change of situation to some extent.
81. The learned Counsel for the respondents in uniform voice submitted that when the petitioners consented to such alteration and when in fact they undisputedly executed the documents referred to above, they can neither challenge the legality of those documents nor they can deny their admission regarding surrender of their tenancy made by them in those documents.
82. In such context, this Court is required to find out as to how far surrender of lease by an unregistered deed is valid.
Re: Effect of Surrender by an Unregistered Document.
83. The learned Counsel for the respondents strenuously argued in uniform voice that surrender of lease orally by delivery of possession, is well recognised in India.
84. The learned Advocate General, appearing for the State also submitted that no registered document is necessary for surrendering lease. In support of such submission, the learned Advocate General relied upon the following decisions of this Court:
(i) 28 CLJ 220 (Brojo Nath Sarma v. Maheswar Gohani and Ors.)
(ii) 22 CWN 441 (Elias Meyer and Bengal Coal Co. Ltd. v. Manoranjan Bagchi and Ors.)
85. Mr. Kapoor, learned Senior Counsel, appearing on behalf of the subsequent lessee, viz., WBTPO in connection with the application for injunction being G.A. No. 2196 of 2006 also argued in the same line by submitting that no deed in writing is at all necessary for surrender of lease.
86. Mr. Kapoor also submitted that surrender of lease by mutual agreement, is recognised in India. In support of such submission, Mr. Kapoor relied upon the following decisions of this Court:
(i) AIR 1919 Cal. 694 (Bengal Coal Co. v. Manoranjan),
(ii) AIR 1919 Cal. 840 (Abdul Majid v. Haricharan Halder and Ors.)
87. In both the aforesaid decisions, it was held that the provisions to Transfer of Property Act do not require a registered instrument to evidence surrender of lease. It was further held therein that even in this country, a surrender or relinquishment does not require to be in writing, but can be inferred from the acts of the parties.
88. No one can dispute such well-settled and well-recognized principle of law to the effect that surrender can be inferred from the acts of the parties. It is also universally accepted that no writing is necessary for surrender of lease. This necessarily follows that registered deed is not necessary to evidence surrender.
89. But, what will be the consequence if the surrender is not of the whole; if the surrender is partial resulting modification of the terms of lease; if the parties execute any document for surrender of lease?
90. This Court does not find out any answer to the aforesaid questions from the decisions cited either by the learned Advocate General or by Mr. Kapoor, as mentioned above. In the decisions cited by them, Court dealt with a situation when admittedly no written document was created and/or executed between the parties for effecting such surrender. Furthermore, those are not the cases where a part of the leasehold property was surrendered resulting modification of the terms of the lease. As such, this Court cannot get any help from the decisions cited by the learned Advocate General as well as Mr. Kapoor, as mentioned above.
91. This Court has no hesitation to hold that this Court finds complete answer to the aforesaid questions from the following decisions cited by Mr. Mukherjee:
(i) AIR 1960 Mysore 87 (Neelakanta Rao v. State of Mysore),
(ii) (M.S. Ram Singh v. B.S. Surana),
(iii) AIR 1961 Mad. 266 (Ahmed Maracair v. Muthuvalliappa).
92. In the Mysore decision, it was held that a surrender deed executed by a tenant in favour of the landlord in respect of his tenancy, the value of which exceeds Rs. 100 is clearly an instrument which purports to extinguish the right of the tenant in an immovable property and as such comes within Clause (b) of Section 17(1) of the Registration Act and therefore is compulsorily registrable. It was further held therein that such a document if not registered, cannot be received in evidence, inasmuch as, such a document amounts to a transaction affecting a right in the immovable property in view of Section 49 of the Registration Act.
93. In the Calcutta decision, it was held that surrender in law means yielding up by the lessee of his interest in the lease and it thereby brings in extinction to the lease, so that the relationship between the parties to the lease comes to an end. It was further held therein that when surrender by instrument in writing purporting to extinguish right of tenant valued at over Rs. 100 is made, such deed is compulsorily registrable.
94. Madras High Court, in the aforesaid decision also held that though no writing is ordinarily necessary for surrendering a tenancy, but if the original lease is registered, the surrender of a portion of the tenancy with an abatement of rent can only be effected by registered instrument as in such a case the surrender involves a variation of the original contract of tenancy. It was also held therein that oral evidence as regard such surrender is inadmissible under Section 92 of the Evidence Act.
95. On consideration of the aforesaid decisions, this Court does not find any reason to deviate from the principles which were laid down in the aforesaid decisions. Here in this case, the document of surrender and/or modification admittedly executed between the lessee and the lessor shows that the entire leasehold interest of the lessee in the said property was not surrendered. Even the KMC does not claim that the entire leasehold property of the Trust was surrendered. The document of surrender and/or modification shows that out of 18.41 acres, the Trust agreed to surrender 14.16 acres of land.
96. Thus, this is not a case where the original lease was extinguished by such deed of surrender and/or modification. The terms of the said deed of surrender and/or modification also shows that the remaining 3.95 acres of the leasehold property will be retained by the lessee under an altered and/or modified terms. In my considered view, such surrender of a part of the tenancy resulting modification of the terms of the lease deed, cannot be made except by registered document. That apart, when a document in writing has been executed by the lessee and the lessor to effect surrender of a part of the leasehold property exceeding Rs. 100 in value, such document is compulsorily registrable and in the absence of registration, surrender can neither be effected nor the said document can be looked into as an evidence of surrender as per Section 92 of the Evidence Act.
Re: Effect of Admission regarding Surrender and/or Delivery of Possession made by the lessee in the document of Surrender and/or Modification.
97. The learned Advocate General submitted that even if the said document of surrender and/or modification, cannot be looked into as an evidence of surrender, but still then, the admission made by the petitioners regarding surrender of lease and/or delivery of possession in consideration thereof, can very well be looked into as admission against its maker in view of the provisions contained in Sections 17, 21 & 58 of the Evidence Act.
98. By referring to Sections 15 and 31 of the Evidence Act, the learned Advocate General also submitted that the maker of such statement admitted surrender of tenancy and delivery of possession as recorded in the said deed and as such, they are estopped from challenging the factum of surrender. The learned Advocate General further argued that in view of the clear admission of the lessee regarding such surrender, the factum of surrender is proved as admission and as such, such admission need not be proved further in view of the Section 58 of the Evidence Act.
99. In addition to the above, Mr. Kapoor, by referring to the proviso to Section 49 of the Registration Act, submitted that admissibility of such an unregistered document into evidence for collateral purpose, cannot be denied. In support of such submission, Mr. Kapoor relied upon the following decisions of the Hon'ble Supreme Court:
(i) AIR 1963 SC 70 (Padma Vithoba v. Md. Multani), (ii) (Bondar Singh v. Nihal Singh), (iii) (Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj P. Deo).
100. Let me now consider the effect of the abovementioned decisions and the applicability thereof in the facts of the present case.
101. In Padma Vithoba's case, it was held by the Hon'ble Supreme Court that endorsement of cancellation on the back of the registered sale deed in favour of the vendor has been held to be inadmissible in evidence as it is not registered. It was further held therein that on the basis of such endorsement, the title of the vendee was not re-transferred to the second defendant; however, the said endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter.
102. In Bondar Singh's case, it was held by the Hon'ble Supreme Court that under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. It was further held in the said case that the collateral purpose to be seen, is the nature of possession of the plaintiff over the suit land.
103. In the other decision, viz., Bhaiya Ramanuj Pratap Deo's case, it was held that the deed for grant of land for maintenance must be registered for taking it as evidence of the transaction affecting the land, but even if the document is unregistered, it can be used as evidence for any collateral purpose for ascertaining nature of possession.
104. The decisions referred to above, thus, make it absolutely clear that surrender of lease, cannot be made by an unregistered document when a document has been executed for such surrender or when a part of the leasehold property is surrendered and thereby the terms of letting of the rest of the land is altered. Consequently an unregistered document cannot be looked into as an evidence of surrender. However, the said document can be looked into for collateral purpose for ascertaining the possession of the parties in the said land.
Re: What is collateral purpose?
105. Collateral purpose is not the main purpose for which the document was executed. The purpose for which the document was executed, was for effecting surrender. Thus, when surrender is the principal purpose, the said document cannot be used as an evidence of surrender. The aforesaid decisions of the Supreme Court make it clear that for ascertaining surrender, the said document cannot be admitted into evidence. But, for collateral purpose, it can be looked into. The collateral purpose in the present case is to find out the legality of possession of the lessor which the lessor obtained from the lessee pursuant to an incomplete and invalid deed. Thus, even if the said document can be looked into for collateral purpose, still then, this document cannot be used as an evidence of surrender. As such, the statements contained in the said document regarding surrender of tenancy, cannot be accepted as an admission of the petitioners regarding surrender of lease.
106. Admittedly the petitioners are not in possession. The petitioners claim that they have been dispossessed forcibly during the pendency of the lis. The Municipal authority claims that possession has been delivered by the Trust to KMC in terms of the scheme formulated by the parties with the participation of the high dignitaries of the State including the then Chief Minister for effectuating settlement of long pending dispute between the parties. Fact remains that the petitioners are not in possession of the leasehold property, dispossession may be either by force or by amicable settlement. In any case, on the strength of such possession, KMC cannot claim that surrender of lease has been duly effected and they are in lawful possession.
107. In my view, the possession of KMC, be it obtained by force or on the strength of an incomplete and invalid document, is unlawful and illegal. As such, KMC cannot retain such unlawful possession, particularly when such possession was obtained by KMC in violation of the order of injunction passed on 4th February, 2002. The effect of possession of a party received on the basis of an invalid deed has been considered by the Hon'ble Supreme Court in the case of State of West Bengal v. Dalhousie Institute Society, , wherein it was held that if possession is taken pursuant to an invalid document, such possession becomes illegal and/or unlawful.
108. The respondents, however, claimed that the dispute regarding legality of possession cannot be resolved in the writ petition as the Writ Court cannot determine a disputed question of fact.
109. Let me consider as to how far such claim of the respondents is correct.
Re: Whether the Writ Court can enter into the Disputed Questions
110. Law is more or less settled on this issue. In an appropriate case, the Writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar in entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. In fact, the said principle was enunciated by the Hon'ble Supreme Court in the case of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. .
111. The power of the High Court to decide the questions of fact in dispute under Article 226 of the Constitution of India, has also been recognised by the Hon'ble Supreme Court in the case of G.K. and Ors. v. Municipal Commissioner, Bhatinda .
112. Mr. Kapoor, however, submitted that if the disputed questions of fact are required to be considered for resolution of the rival claims of the parties regarding their title and possession in the property, the High Court in its Constitutional writ jurisdiction, should not make any effort to resolve such a dispute, particularly when fraud, misrepresentation and coercion is alleged in the petition. In support of such submission, Mr. Kapoor also referred to the decision of the Hon'ble Supreme Court in the case of State of U.P. and Ors. v. Maharaja Dharmendra Prasad Singh and Ors. .
113. Here, of course, I do not find involvement of any disputed and/or complicated questions of fact in the instant case. The facts leading to the filing of the writ petition and the events which took place subsequently, are more or less admitted. As such, for consideration of the writ petition and/or effectual disposal thereof, this Court is not required to adjudicate any disputed questions of fact. As such, this Court does not find any substance in the submission of Mr. Kapoor in this regard.
114. Though certain allegation of fraud was made by the petitioners against the respondents in the process of execution of the abovementioned documents in the supplementary affidavit, but the Court cannot take note of such allegation as the details and/or particulars of such fraud are wanting in the pleading. Thus, the Court will have to consider the writ petition by ignoring the plea of fraud as taken by the petitioners in the supplementary affidavit.
115. This Court, thus, proceeds to consider the writ petition on the admitted facts of the case.
Re: Effect of Non-performance of Reciprocal Contract by one of the Promisees,
116. Mr. Mukherjee submitted that though the documents are illegal and invalid for want of registration, but still then, the agreement which was arrived at by the parties as recorded in those documents, can be enforced provided the contract is valid.
117. Mr. Mukherjee drew attention of this Court to the deed of surrender and/or modification to show the promises made by the respective parties for settlement of the dispute involved in this writ petition. The State Government is desirous of setting up a permanent trade fair complex on the said plot of land. To materialise its said object, the State Government introduced West Bengal Trade Promotion Organisation for implementation of the said project. At the instance of the State Government and with the participation of very high dignitaries including the then Chief Minister of the State and the then Mayor of the Kolkata Corporation, a scheme was worked out for settlement of the dispute.
118. The trustees of the petitioner Trust agreed to surrender 14.16 acres of land out of 18.41 acres of land at the said premises to KMC, as KMC in consideration of such surrender, has agreed to allot a plot of land measuring about 2.75 acres more or less adjacent to the land measuring about 3.95 acres more or less to be retained by the trustee after surrender of the said 14.16 acres of land. Thus, in lieu of such surrender, the Trust will enjoy an allotment of land measuring about 6.70 acres in the said plot of land.
119. KMC also agreed to refund a sum of rupees eight lakhs which the petitioners spent towards rehabilitation expenses of the encroachers of a portion of the land to be surrendered together with interest to be calculated on the nationalised bank interest basis to the Trust within 30 days from the date of execution of the necessary documents. The KMC also agreed to give permission to the proposed lessee to sub-lease 0.80 acres of land out of the land to be surrendered by the Trust in favour of the Trust.
120. Mr. Mukherjee relied upon the following decisions of the Hon'ble Supreme Court in support of his submission that if the promisee does not fulfil its reciprocal promise, the agreement stands automatically cancelled:
(i) (B.R. Mulani v. A.R. Aswathanarayana),
(ii) (Manicklal Mukherjee v. Commissioner of Sanchaita Investment, Calcutta).
121. Relying upon the said decisions, Mr. Mukherjee submitted that since the respondents express their unwillingness to perform their part of the obligation in the reciprocal contract, the deed of modification and/or surrender stands automatically cancelled.
122. Refuting such submission of Mr. Mukherjee, Mr. Kapoor, however, tried to impress upon this Court that when the promises in a contract are inter-dependent upon each other, then such contract is described as reciprocal contract. Mr. Kapoor submitted that since the promises in the instant case, are independent of each other, the deed of surrender and/or modification, cannot be described as a reciprocal contract. In support of such submission Mr. Kapoor relied upon a decision of the Hon'ble Supreme Court in the case of Latim Lifestyle and Resorts Ltd. and Anr. v. Saj Hotels (P) Ltd. and Ors. .
123. Considering the aforesaid submissions of the learned Counsel of the respective parties, this Court has no hesitation to hold that the principles as laid down by the Hon'ble Supreme Court in the case Latim Lifestyle and Resorts Ltd. and Anr. (supra) relied upon by Mr. Kapoor, has no application in the facts of the instant case, as in my view, the terms and/or obligations which the respective parties are required to perform, are no doubt inter-dependent with each other as the petitioners agreed to surrender a part of their leasehold property in consideration of the promises made by the KMC regarding grant of lease of 2.75 acres more or less adjacent to the land measuring about 3.95 acres of land more or less to be retained by the trustee after surrender of the said 14.16 acres of land. That apart, the KMC also promised to refund a sum of rupees eight lakhs which the petitioners spent towards rehabilitation expenses of the encroachers of a portion of the land to be surrendered together with interest to be calculated on nationalised bank interest basis to the Trust within 30 days from the date of execution of the necessary documents.
124. Considering the respective promises made by the parties, as aforesaid, this Curt has no hesitation to hold that the contract was reciprocal. As such, the Municipal authorities cannot avoid performance of its contract and if they fail to perform their part of the contract, the agreement regarding surrender and/or modification stands automatically cancelled.
125. In course of his argument, Mr. Mukherjee repeatedly submitted that his clients do not want to involve into litigation of such a dimension where the high dignitaries of the State including the Chief Minister of the State of West Bengal and the Mayor of the Kolkata Municipal Corporation are interested and/or involved. Accordingly, Mr. Mukherjee submitted that if the KMC and the State Government are ready and willing to perform their reciprocal promise as recorded in the deed of surrender and/or modification, the petitioners will not proceed any further.
126. This Court also tried to persuade the learned Advocate General and Mr. Jayanta Mitra to exercise their high offices, so that a workable and honourable settlement can be arrived at. Unfortunately, this Court does not find any reasonable response from either of them. In my view, neither the State Government nor the KMC should act as an ordinary litigant. There must be honesty, crystality and/or transparency in the State action. The action of the State Government should not be cloudy, hazy and dark. In my view, the State Government and the Municipal authority, in all fairness should have accepted the proposal given by Mr. Mukherjee. But when the State Government and the Municipal authority are reluctant to give any importance to the said suggestion of Mr. Mukherjee, this Court also finds no other alternative but to consider the writ petition on its own merit without taking note of the suggestion made by Mr. Mukherjee.
127. For the aforesaid purpose, this Court is still required to consider two other submissions of Mr. Kapoor as recorded hereunder.
Re: Effect of Non-joinder of WBTPO in the writ petition,
128. Mr. Kapoor submitted that after surrender of tenancy by the trustee, an agreement for lease was entered into between the KMC and his client on the very same day for letting out 18.41 acres of land at the said premises inclusive of the land agreed to be surrendered by the Trust in favour of the KMC on 30th October, 2003. By referring to the certificate of possession granted by Mr. Gujral, the managing trustee on 30th October, 2003, Mr. Kapoor submitted that his client has performed its obligation as per the agreement entered into between the trustee and his client on 10th October, 2003.
129. Mr. Kapoor thus submitted that the Trust was thus aware about the subsequent arrangement made between the KMC and his client in respect of the land surrendered by the Trust. Mr. Kapoor further submitted that since the Trust executed the said document and in fact surrendered its tenancy, the WBTPO involved huge finance for setting up trade fair complex therein and has also subsequently obtained a lease of the said land from the KMC. Mr. Kapoor, thus, in effect wanted to take the defence of bona fide transferee for value.
130. Mr. Kapoor further submitted that the reliefs which the petitioners are now claiming by filing a supplementary affidavit to the writ petition, are all concerning his client, viz., the subsequent transferee. Mr. Kapoor argued that though the petitioners have claimed reliefs against his client, still then, his client has not been made party to this writ petition. Mr. Kapoor contended that no relief can be granted to the petitioners without impleading his client as party to the writ petition. To support such contention, Mr. Kapoor relied upon the following decisions of the Hon'ble Supreme Court:
(i) (Ramrao and Ors. v. All India Backward Class Bank Employees' Welfare Association),
(ii) (N. Setharamaiah v. Kotaiah).
131. In Ramrao's case, the effect of absence of the third parties in the writ petition was discussed in the following manner:
27. It is true that the order of promotion was in question in Writ Petition No. 1551 of 1990 at the instance of one Ashok but even in the said writ petition the promotees were not impleaded as parties. As in the case of the association, even in the writ petition filed by Ashok, the order of dereservation passed by the Union of India or NABARD or the sponsor bank had not been questioned. Admittedly, the Union of India or NABARD were not parties in the said writ petitions. An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In absence of the 'promotees' as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment.
132. Identical principle was also laid down in the other decision viz. , cited by Mr. Kapoor.
133. In my view those decisions have no application in the facts of the present case, as Mr. Kapoor's client has no independent right in the property in question. Mr. Kapoor's client is claiming interest in the property by way of lease granted by the KMC in favour of Mr. Kapoor's client on 20th March, 2006, during the pendency of this writ petition. Thus, Mr. Kapoor's client is nothing but a transferee pendente lite who entered into such a transaction by keeping its eyes open about the legality of such transaction and also having full knowledge about the litigation pending between the Trust and the KMC.
134. In my view, it is rightly pointed out by Mr. Mukherjee that his clients can obtain the reliefs as prayed for in the altered situation even against the transferee pendente lite without impleading the transferee pendente lite as party to this proceeding.
135. The decision of the Hon'ble Supreme Court in Raj Kumar v. Sardarilal , makes it clear that bringing a pendente lite transferee on record, is not a right but depends upon the discretion of the Court. But, in any case though the transferee pendente lite has not been brought on record, but still then such pendente lite transferee remains bound by decree. Thus, Mr. Kapoor's client being a transferee pendente lite, cannot avoid the effect of the order. Had it been a case that Mr. Kapoor's client has an independent right in the property and such right flows from a transaction unaffected by the principles of lis pendens, then of course, no relief can be granted against such a party in its absence.
136. That apart, knowing fully well the nature of the reliefs claimed by the petitioners in the altered situation, Mr. Kapoor's client has not come forward to contest the proceeding by seeking leave under Order 22 Rule 10 of the Code of Civil Procedure. Mr. Kapoor's client took a risk and depended solely upon its transferor through whom it is claiming interest in the property and as such, the order which will be passed in this writ petition against the KMC will bind Mr. Kapoor's client also in view of the decision of the Hon'ble Supreme Court in the case of Raj Kumar's case (supra).
Re: Whether relief can be granted to the petitioners by Moulding the Praver without bringing the Subsequent Events on record by way of Amendment of the writ petition?
137. The last contention of Mr. Kapoor but not of least importance, is that without amending the pleadings of the writ petition, the writ petitioners cannot get any relief on the basis of the prayers as mentioned by them in the supplementary affidavit. In support of such contention, Mr. Kapoor strongly relied upon a Division Bench decision of this Court in the case of Bharat Bhari Udyog Nigam Ltd. v. Jessop and Co. Ltd. Staff Association and Ors. reported in 2003(4) Company Law Journal 333 Cal, wherein it was held as follows:
33. All these documents were filed after filing of the writ petition and on the basis of these subsequent document and supplementary affidavits, an entirely new case was sought to be build up which was never put up in the pleadings. We shall deal all these points subsequently. At present, the question is whether this kind of procedure adopted by the writ petitioner before the learned Single Judge for developing a new case by filing supplementary affidavit should be accepted or not. We are conscious that in writ jurisdiction, provisions of the Civil Procedure Code with regard to pleadings are not required to be strictly adhered to but the basis principle of law of pleading has to be kept in view. The writ petition cannot be de hors the minimum pleading. In the present case, as we have pointed out above that the entire case put up before the learned Single Judge was on the question whether JCL, comes within the meaning of 'strategic sector' or not. Prayers were also made to this effect, as reproduced above. But by way of supplementary affidavits, all these new pleadings were sought to be introduced; this mode cannot be countenanced. If the petitioner wanted to challenge the entire process of selection of the promoter in this disinvestments process then it was binding on the writ petitioners to amend the writ petition, and incorporate all these grounds. But a peculiar method was adopted by the writ petitioners to bring out a new case by filing supplementary affidavits and annexing documents from time to time, to make it impossible for the Court as well as for other parties to meet the case of the writ petitioner. We cannot approve of this kind of practice and it has to be disapproved in no uncertain terms. We can appreciate that subsequent events after filing of the writ petition, has taken place; and if the parties to the writ petition want to bring them on record, these new developments, then Courts in its liberal approach take into consideration these subsequent events; but that should be done by amending the writ petition and not by filing successive supplementary affidavits. In the present case, all limits have been crossed and an entirely new case has been sought to be countenanced the same despite the fact that he has already held the main case against the writ petitioners that JCL does not fall in the 'strategic sector'. Therefore, we are of the opinion that the submissions of Mr. Kapoor deserves to be accepted - that new case which has been sought to be developed by the writ petitioners by inserting various documents through affidavits, cannot be countenanced and we strongly disapprove this approach.
138. Since Mr. Kapoor's client is not a party to this writ petition, Mr. Kapoor's client, in my view, cannot raise such an objection. However, since the point which has been raised by Mr. Kapoor is a matter of great importance, this Court feels it necessary to consider the effect of such submission hereunder, though such objection was not raised either by the learned Advocate General or by Mr. Jayanta Mitra, appearing on behalf of the contesting respondents.
Conclusion
139. It is no doubt true that normally subsequent changes are required to be brought on record by way of amendment of pleading. Such amendment is needed not only for the convenience of the Court but also for the convenience of the other parties, so that they can meet the amended pleadings of the plaintiff and/or petitioner appropriately. Use of successive supplementary affidavits disclosing numerous documents creates inconvenience to the Court as well as to the parties in dealing with the subsequent events relying on which the Court is invited to give appropriate relief to the parties by moulding the prayers of the petitioner.
140. In fact, on perusal of the decisions cited by Mr. Kapoor, as aforesaid, I find that Their Lordship were very much annoyed because of use of successive supplementary affidavits in connection with the said writ petition for introducing a new challenge altogether which has no co-relation with the initial relief claimed in the said writ petition. Under such circumstances, Their Lordships discarded the practice of use of successive supplementary affidavits for introducing a completely new and different challenge having no co-relation with the initial relief.
141. Let me now consider as to how far the said principle laid down in the said Division Bench decision, is applicable to the present case.
142. I have already indicated above that initially the writ petition was filed by challenging the legality of the notice of forfeiture of the lease issued by the KMC. In the said context, the petitioners prayed for an injunction for restraining the KMC from disturbing the possession of the petitioner in its leasehold property without due process of law.
143. Grant of lease of 18.11 acres of land at the said premises by the KMC by registered lease deed dated 31st May, 1994 coupled with a supplementary indenture dated 9th July, 1999 in favour of the petitioner Trust is undisputed.
144. It is settled law of the land that the lessor cannot adopt any extrajudicial process for recovery of possession of the leasehold property from its lessee even after termination of lease by notice or otherwise. The lessor has to recover such possession from its lessee through Court of competent jurisdiction in due process of law. It is nobody's case that the lessor obtained any decree for eviction against the lessee and possession was recovered from the lessee through Court by execution of such decree.
145. Under such circumstances, an interim order was passed in this writ petition whereby it was directed that without leave of this Court, let the petitioners' possession be not interfered with in respect of the leasehold premises in question of which lease has been cancelled without due process of law.
146. Admittedly, no leave was obtained by either of the parties to alter the status quo with regard to the petitioners' possession in the leasehold property from the Court. But, fact remains that status quo with regard to petitioners' possession was altered without the leave of the Court.
147. How and under what circumstances, such status quo with regard to the petitioners' possession was altered and the effect of such alteration and consequences thereof, were brought on record by the KMC by filing an application being G.A. No. 2255 of 2006, inter alia, praying for an order for disposing of the writ petition finally by passing no order thereon and/or to pass such appropriate order as will bring such litigation to an end by taking note of such subsequent events. The State of West Bengal, the respondent No. 5 therein also in its affidavit used in connection with the writ petition prayed for dismissal of the writ petition in the changed scenario due to happening of such subsequent events. The pendente lite transferees also prayed for dismissal of the petitioners' application for interim injunction being G.A. No. 2196 of 2006 by referring to the subsequent events which caused alteration of the rights of the parties in the land in question. Thus, in fact, respondents are trying to reap the benefit of such subsequent events which they introduced in their respective pleadings in connection with the writ petition, as aforesaid.
148. Under such circumstances, I cannot hold that the respondents were unaware of the subsequent events and/or that they will be taken by surprise, if relief is granted to do justice to the parties in the altered scenario by moulding the relief.
149. In fact, Mr. Mukherjee, contended that the initial relief which the petitioners claimed in the writ petition, has not become infructuous, as the Court can, even today very well grant the relief to the petitioners as prayed for in the writ petition notwithstanding the subsequent events which caused alteration of status quo with regard to the petitioners' possession in the said land without obtaining leave of the Court and in violation of the interim order of injunction. But, still then, for avoiding any further unpleasantness in the matter, the petitioners made it clear that the petitioners will accept such alteration provided the respondents are faithful to their obligation as per the agreed terms underlying the unregistered agreement and it is only for the purpose of bringing on record the obligations which the respondents, are required to perform in terms of the agreed terms between the parties, a supplementary affidavit was used by the petitioners in connection with the writ petition wherein the subsequent events which has already been disclosed by the respondents in their aforesaid pleading, were brought on record by the petitioners.
150. Thus, here is the case where subsequent events are all known to the parties. In fact, the scenario was changed due to such subsequent events which took place with the participation of all the parties. As such neither party will be taken by surprise if the subsequent events are taken into consideration by the Court to mitigate justice to the parties in the writ petition.
151. This Court does not feel any inconvenience to take note of the subsequent events disclosed by the petitioners in the supplementary affidavit at this Court repeatedly dealt with those subsequent events while considering the interlocutory petitions filed by the parties.
152. Under such circumstances, this Court holds that the principle laid down in the Division Bench decision of this Court cited by Mr. Kapoor, as above, has no application in the facts of the present case, particularly when the practice of bringing the subsequent events on record is being followed in this Court every now and then for more than decade. However, Court can discard such practice when trial will be embraced by use of repeated successive affidavits disclosing various documents which are unconnected with the parent relief in the original proceeding.
153. Be that as it may, when the respondents themselves want to reap benefit out of such subsequent events by disclosing the same in their affidavits, this Court cannot ignore the effect of such subsequent events by applying the principles as laid down in the decisions cited by Mr. Kapoor, as above. In any event, the Court is required to consider the effect of such subsequent events, as the Court is invited by the respondents themselves to dismiss the writ petition by taking note of such subsequent events.
154. Thus to conclude, this Court has no hesitation to hold that the Municipal authority (lessor) had no right to recover possession of the said leasehold premises from the petitioners by use of extra-judicial force without due process of law. Even the termination of lease by the impugned notice on the ground of forfeiture cannot be regarded as valid notice as the reason for invocation of such forfeiture clause were not disclosed by the lessor in the said notice. That apart, even the status quo with regard to the possession of the petitioners was altered by the respondents without obtaining any leave from the Court and in violation of the order of injunction passed on 4th February, 2004.
155. This Court cannot be unmindful of the settled law of the land that if a party in possession is dispossessed by the other parties in violation of the order of injunction during the pendency of the suit and/or proceeding, it is the duty of the Court to restore the possession of the party who has been dispossessed by the other parties in violation of the order of injunction.
156. This Court could have adopted the said course of action instantly, but this Court is little bit hesitant to adopt the said course instantly, because of inducement of a third party to involve his huge finance in the said land at the instance of the Municipal authority and the State Government without creating any legal right in its favour.
157. Thus, to do justice to the parties, this Court feels that a workable solution should be invented, so that the rights of the parties can be protected.
158. Fact remains that the petitioners, the Municipal authority, the State Government and the WBTPO, formulated a scheme for a workable solution. Undisputedly, the respondents are now in possession, though their possession is not legal as the same was received on the basis of an invalid deed. Thus, when the petitioners were deprived of their interest in the leasehold property at the instance of the respondents, it is the moral and ethical obligation of the respondents to perform their obligations as per the agreed terms underlying the agreement.
159. Accordingly, I direct the respondents to perform their part of the agreed terms underlying the agreement, as referred to above, positively within a period of two months from date, failing which the respondents, viz., the Municipal authorities are directed to restore the possession of the petitioners in the leasehold land by removing the construction and/or the structure constructed thereon immediately thereafter and not to disturb the possession of the petitioners in respect of the leasehold property comprising of 18.11 acres of land at the said premises without due process of law.
160. In the event, however, the respondents and/or any other person claiming any interest through the respondents including the WBTPO fail to remove the construction and/or structure from the said land within the time as indicated above, the construction and/or structure standing on the said land, will devolve upon the petitioner No. 1 which will enjoy the same together with the right either to dismantle the same or to renovate the same by addition or alteration during the continuation of the lease without bearing any additional liability to pay compensation for damage and/or any additional rent therefor. This part of this order is passed by keeping in mind that WBTPO raised such construction on the said plot of land at its own risks with full knowledge of the interim order passed by this Court on 27th September, 2006.
161. It is not out of place to mention here that Mr. Kapoor's client challenged the maintainability of the writ petition by filing affidavit in connection with the injunction petition filed by the writ petitioners which is being heard along with this writ petition. Thus, since the rights of the parties are being considered in the presence of Mr. Kapoor's client with its full participation, it cannot be said that the decision which is taken in this proceeding, cannot bind his client.
162. The writ petition, thus, stands allowed.
163. The applications filed by Mr. Anindya Mitra's client, viz., some of the trustees as well as by the Kolkata Municipal Corporation being G. A. No. 2254 of 2006 and G.A. No. 2255 of 2006 respectively, stand rejected for the reasons, as aforesaid.
164. In view of the disposal of the writ petition itself by this order, no further order need be passed on the petitioners' application for injunction being G.A. No. 2196 of 2006 and G.A. No. 3061 of 2006 excepting by recording the submission of Mr. Hirak Mitra, learned Senior Counsel, appearing on behalf of the CESC authority that his client has no objection to restore the supply of electricity to the petitioners, if the petitioners' possession in the leasehold property is restored by this Court.
165. There will be, however, no order as to costs.
Later:
166. After passing of this judgment, Mr. Ghosh, learned Advocate appearing for the WBTPO and Mr. Niladri Bhattacharya, learned Advocate appearing on behalf of the ex officio trustees, pray for stay of operation of this order. Such prayer for stay, however, was vehemently opposed by Mr. Roy, learned Advocate, appearing for the petitioners.
167. Since I have held that WBTPO has no independent status with regard to the suit properties, the prayer for stay made by Mr. Ghosh, cannot be allowed.
168. However, considering the prayer of Mr. Bhattacharya, this Court stays operation of this judgment for a period of two weeks from date, so that Mr. Bhattacharya's client is not deprived of an opportunity of challenging this order in appropriate forum. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.