Calcutta High Court (Appellete Side)
Bishnu Dayal Agarwala vs Dilip Kumar Agarwala on 18 July, 2023
IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
S.A. 199 of 2019
CAN 2 of 2020
BISHNU DAYAL AGARWALA
VS.
DILIP KUMAR AGARWALA
For the Appellant : Mr. Ganesh Prasad Shaw, Adv.
Mr. Gaurav Kumar, Adv.
For the Respondent : Mr. Bhudeb Chatterjee, Adv.
Mrs.Susmita Saha Dutta, Adv.
Mr. Niladri Saha, Adv.
Ms. Madhurima Basu, Adv.
Hearing concluded on : 6th July, 2023
Judgement on : 18th July, 2023
Siddhartha Roy Chowdhury, J.:
1. This second appeal is the manifestation of displeasure of the defendant/appellant over the judgement and order passed by learned Civil Judge, Senior Division, Raiganj, Uttar Dinajpur on 16th November, 2017 dismissing the Title Appeal No. 15 of 2013 and thereby affirming the judgement and decree passed by learned Civil Judge, Junior Division, Raiganj in Title Suit No. 186 of 2004.
2. Briefly stated, Dilip Kumar Agarwala filed a suit for permanent injunction against his brother Bishnu Dayal Agarwala alleging, inter alia, that 'Ka' schedule property is originally owned by Asrafi Devi Agarwala, the grandmother of the plaintiff who during her life time 2 transferred the property in favour of her two sons Ram Swaran Agarwala and Ram Avtar Agarwala by registered deed of gift in the year 1962 and each of the two brothers acquired 22 2/3 decimal of land with proper demarcation. Ram Swaran Agarwala and Ram Avtar Agarwala thereafter, constructed their residential houses over the said properties after getting their names mutated. Ram Swaran Agarwala transferred the 'Ka' schedule property in favour of the plaintiff by way of registered deed of gift on 27th September, 1999. The instrument was registered on 6th October, 1999. Since then the plaintiff has been possessing the said 'Ka' schedule property by mutating his name and by paying rates and taxes. The adjoining northern portion of the land is owned by his mother Shanti Devi Agarwala, Bishnu Dayal Agarwala and Raghuvir Agarwala (since deceased). After partition Bishnu Dayal Agarwala was allotted adjacent northern side of the 'Ka' schedule property which has been depicted as 'Kha' schedule property. The defendant started construction over the 'Kha' schedule property without leaving the required space from the northern boundary and thus Bishnu Dayal Agarwala violated the Municipal Act and Building Rules. The plaintiff requested the defendant Bishnu Dayal Agarwala not to carry out such illegal work of construction without leaving four feet space from the northern boundary. The defendant is the elder brother of the plaintiff, a teacher by profession, however, constructed his building taking advantage of the absence of the plaintiff, without leaving four feet space from the boundary line of 'Ka' schedule property. The plaintiff lodged a complaint to Raiganj Police Station. It is further contended that the illegal construction over 'Kha' schedule property is bound to deprive the 3 plaintiff from having access to air and light and in case of emergency fire fighters cannot have the space to access.
3. The plaintiff prayed for declaration of title in respect of 'Ka' schedule property and also prayed for further declaration that the defendant has undertaken construction work illegally after having the building plan sanctioned by the Municipal Authority and for mandatory injunction to demolish the construction already undertaken on the northern side of the boundary of 'Ka' schedule property within the four feet space.
4. The defendant contested the suit by filing written statement denying all material allegations made against him.
5. It is specific case of the defendant that 15 inch width boundary wall was in existence in between the 'Ka' and 'Kha' schedule property which was constructed by predecessor-in-interest of the parties to the suit. The plaintiff constructed his house without leaving any side space following the Municipal Act with the consent of the defendant and it was agreed upon by the parties that the defendant would also construct his house over the 'Kha' schedule property without leaving the required side space. The parties further decided not to keep any window or door on the northern side wall. However, when the defendant started constructing his house the plaintiff filed the suit. Learned Trial Court after considering the pleadings of the parties framed the following issues :-
1. Is the suit maintainable in its present form and prayer?
2. Is there any cause of action to file this instant suit?
3. Is the suit bad due to waiver, estoppel and acquiescence?
4. Is the plaintiff entitled to the relief as prayed for?4
5. To what other relief is the plaintiff entitled?
6. After considering the evidence on record learned Trial Court was pleased to pass the decree which was challenged before the First Appellate Court in Title Appeal No. 15 of 2013 and learned First Appellate Court was pleased to dismiss the appeal.
7. While admitting the second appeal the following substantial questions of law were formulated :-
1. Whether the Court of appeal below substantially erred in law by rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure on the ground of due diligence?
2. Whether both the Courts below substantially erred in law by decreeing the suit without returning any finding on the plea of actionable nuisance taken by the defendant/appellant?
3. Whether both the Courts below substantially erred in law by not relying upon the declaration made by the father of the parties, being Exhibit A, which contains the conditions for making construction by the parties?
4. Whether the provisions contained in Section 7 of the Indian Easements Act, 1882 can be made applicable in the instant case while passing a decree when the said Act has no manner of application in the State of West Bengal?
8. Mr. Ganesh Prasad Shaw, learned Counsel for the appellant impeaching the impugned judgement submits that admittedly 'Ka' and 'Kha' schedule property are owned by the parties to the suit. The father of the parties to this suit on 13th November, 2004 gave a declaration 5 indicating the existence of a wall, 200 feet in length and 15 inch in width in between the 'Ka' and 'Kha' schedule property. Half of the said wall that is 71/2 inch was sold by Raj Kumari Bhutoria in favour of Bishnu Dayal Agarwala in the year 1982 and the remaining part of the wall was transferred by him in favour of his third son Dilip Kumar Agarwala by way of deed of gift. The parties to the proceeding on the self-same date also gave an undertaking that Bishnu Dayal Agarwala would erect wall over the 71/2 inch of the boundary wall without leaving any space and Dilip Kumar Agarwala undertook to demolish the sun-
shed on the northern side of his house. Therefore, learned First Appellate Court had no reason to pass the impugned judgement of affirmance ignoring the documents, Exhibit-A (collectively). It is further submitted by Mr. Shaw that though the plaintiff alleged that the construction undertaken by defendant was illegal but as a matter of fact the defendant started construction after getting the building plan sanctioned by the Municipal Authority. The defendant/appellant intended to get the sanction plan admitted as additional evidence in the appeal but learned First Appellate Court did not allow such prayer.
9. It is further adverted that this is not a suit for actionable nuisance.
The specific case of the plaintiff is that the construction was undertaken illegally. Had the building plan duly sanctioned by Raiganj Municipality been accepted as additional evidence by the learned First Appellate Court, it would have established the fact that the construction work was undertaken in accordance with the building plan duly sanctioned by Municipal Authority.
6
10. Mr. Bhudeb Chatterjee, learned Counsel representing the respondent rightly submits that in a case for actionable nuisance, a suit can be maintained without impleading Municipal Authority as party; but with all fairness it is submitted that Municipal Authority ought to have been impleaded in this suit for effective adjudication of the same, in absence of pleading of actionable nuisance.
11. Upon perusal of the plaint, I find that primary allegation of plaintiff is that an illegal work of construction was undertaken by his brother, the defendant and that illegal construction is required to be demolished. The West Bengal Municipal Act, 1993 has conferred the jurisdiction upon the Municipal Authority to order for demolition in certain case where the building has been constructed without obtaining sanction or permission under the law or in breach of the provisions of the Act, deviating from the plan sanctioned by Municipal Authority.
12. The plaintiff before filing of suit on 29th October, 2004 informed the Municipal Authority about the illegal construction but no action was taken by the Municipal Authority, though the Board has the statutory obligation to see that buildings in the Municipal area are erected in accordance with the plan duly sanctioned by Municipality. Chapter XIV of West Bengal Municipal Act, 1993, deals with jurisdiction of Municipal Authority regarding building.
13. It goes without saying that under the West Bengal Municipal Act, there is a duty to construct building according to municipal law and not to construct building in violation of the statute. The very object of the statute is to protect the rights and interest of the adjoining owners. 7
14. Learned First Appellate Court addressed the issue of illegal construction with a notion that the defendant had undertaken the work of construction without leaving statutory space as required under the West Bengal Municipal Act, 1999 and such an illegal act according to learned First Appellate Court is bound to have an adverse impact and it would cause actionable nuisance by diminishing the flow of air and light to the property of the plaintiff/respondent. Learned Trial Court dealt with Section 7 of the Easement Act and learned First Appellate Court, decided the issues in the light of actionable nuisance, in absence of any pleadings.
15. Learned First Appellate Court further held that defendant had obligation under this statute not only to the Raiganj Municipality but also to the plaintiff. If he constructs building with an illegal building plan sanctioned by Raiganj Municipality, the plaintiff being an adjoining owner has the right to ask for injunction because there is an invasion of right and enjoyment of property by illegal construction.
16. Learned Appellate Court refused to accept the building plan, duly sanctioned by the concerned Municipal Authority. When under the statute Municipal Authority has been given power to see that no construction is erected in violation of the statute and if there is any, the same could be demolished by Municipal Authority, the inaction on the part of Municipality cannot be lost sight of. Illegal construct is a public wrong. Therefore, issue of illegal construction is required to be adjudicated in presence of Raiganj Municipality as it did not act in order to discharge the statutory obligation as laid down under the West Bengal Municipal Act, 1993, despite being informed by the plaintiff 8 about the alleged illegal construction, as it appears from Exhibit-5. Thus while criticising the action of Raiganj Municipality for sanction of illegal building plan, without granting an opportunity to the Municipal Authority to explain it's stand, learned First Appellate Court has violated the principle of natural justice. The observation of learned First Appellate Court and decision not to accept the building plan duly sanctioned as additional evidence and at the same time criticizing the Municipal Authority for according sanction illegally and also passing the decree for permanent injunction against the defendant for alleged illegal construction, in absence of any issue of actionable nuisance and without granting opportunity to produce document to justify the action was not only unfair on the part of the learned Lower Appellate Court, it was an infraction to the rule of natural justice.
17. Section 203, 204 and 218 of the West Bengal Municipal Act, 1993 says :-
"203. Approval of building-sites and sanction of plan for erection of buildings. - No piece of land shall be used as a site for the erection of a building unless such site has been so approved '[on payment of a fee at such rate as may be prescribed, and] within the prescribed period, and no building shall be erected unless a building plan has been sanctioned for such erection [on payment of a fee at such rate as may be prescribed, and] in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act:
Provided that no piece of land shall be approved for the erection of a building and no building plan shall be sanctioned unless a certificate from the competent authority, as defined in clause (d) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), to the effect that there is no objection to the transfer 9 of the land under sub-section (3) of section 5 of that Act, has been submitted along with the application for sanction of building plan under the rules made under this Act: Provided further that if the competent authority as aforesaid does not issue the certificate within three months from the date of application for such certificate, it shall be presumed that the "no objection certificate" has been issued by it and no further reference to it shall be necessary.
204. Prohibition of building without sanction.-No person shall erect or commence to erect any building or execute any specified building work, except with the previous sanction of the Board of Councillors and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation to such erection of building or [execution of work and on payment of such fee as may be prescribed]:
2[Provided that in case of allowing incremental Floor Area Ratio over and above the prescribed limit of Floor Area Ratio in the prescribed manner, rate or fee or charge payable for additional Floor Area Ratio shall be decided in terms of "Circle Rates" of the State Government, and the formula for this purpose shall be finalised by the State Government, and all such additional fees or charges to be collected on account of granting of additional Floor Area Ratio will be payable to the State Exchequer directly, and as may be decided by the State Government, a portion of the collected fees or charges shall be allotted or transferred in the Municipalities for undertaking development schemes.]
218. Order for demolition or alteration of buildings in certain cases. - (1) If the Board of Councillors is satisfied-
(a) that the erection of any building
(i) (has been commenced without obtaining sanction or permission under the law, or
(ii) is being carried on or has been completed otherwise than inaccordance with the particulars on which such sanction or 10 permission was based, or after such sanction or permission has been lawfully withdrawn, or
(iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or
(b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or
(c) that any material alteration of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the Schedule or in any rules or regulations in this behalf, it may, after giving the owner of the building a reasonable opportunity of being heard, make an order directing that such erection, alteration, addition or projection, as the case may be, or so much thereof as has been executed unlawfully, be demolished or altered and, upon such order, it shall be the duty of the owner to cause such demolition or alteration to the satis-
faction of the Board of Councillors within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, may be demolished or altered by the Board of Councillors at the expense of the said owner. (2) The procedure relating to the opportunity of hearing to be given to the owner of the building under sub-section (1) shall be such as may be prescribed.
(3) An appeal against an order made by the Board of Councillors in this behalf shall lie with the Court having jurisdiction. [(4) Omitted.) 11 (5) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman-in-Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on, in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
18. In my humble opinion, this is a fit case, where an order of remand should be passed after setting aside the judgement and decree impugned, which I accordingly do. Consequently, the judgement impugned is set aside. The appeal is allowed.
19. Learned Trial Court is directed to readmit the suit to its original file. Learned Trial Court shall give an opportunity to the plaintiff to implead Raiganj Municipality as defendant within two weeks from the date of receipt of record. If necessary Dilip Kumar Agarwala, the plaintiff and Bishnu Dayal Agarwala, the defendant shall be given liberty to amend their pleadings and to adduce evidence if they wish to which shall be treated as further evidence. Thereafter, learned Trial Court shall dispose of the suit according to law, if necessary by recasting or framing additional issues in terms of amended pleadings.
20. With the disposal of this appeal CAN 2 of 2020 is thus disposed of.
21. Let a copy of this judgement along with LCR be sent down to the learned Trial Court for information and necessary compliance.
22. Urgent photostat certified copy of this judgement, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)