Calcutta High Court (Appellete Side)
Ainul Haque & Ors vs Smt. Tanushree Dey & Ors on 21 May, 2009
Author: Prasenjit Mandal
Bench: Ashim Kumar Banerjee, Prasenjit Mandal
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.M.A. 244 of 2009
Ainul Haque & Ors.
-Versus-
Smt. Tanushree Dey & Ors.
And
F.M.A. 519 of 2009
Sk. Abdul Rasid & Ors.
-Versus-
The State of West Bengal & Ors.
For the Appellants : Mr. Dinabandhu Chowdhury
(In FMA 244 of 2009 & Mr. Amal Krishna Saha
FMA 519 of 2009) Mr. Iresh Pal
For the Respondent nos. : Mr. Mrinal Kanti Das
4 & 5 (In FMA 519 of Mr. Subhabrata Das
2009)
&
For the Respondent nos.
1 & 2 (In FMA 244 of
2009)
For the Respondent nos. : Mr. Samiran Mandal
4 & 5 (In FMA 244 of 2009
&
For Respondent nos. 2 & 3
(In FMA No. 519 of 2009)
For the State : Mr. Amitava Chaudhuri
(In FMA 244 of 2009)
For the State : Mr. Fazlul Haque
(In FMA 519 of 2009) Mr. K.N. Nabi
For the Mutuwalli : Mr. Suddhasatta Banerjee
Heard on : April 7, 2009, April 9, 2009, May 5, 2009, May 12, 2009, May 14, 2009,
May 15, 2009
Judgment on : May 21, 2009.
ASHIM KUMAR BANERJEE.J:
The pages and parties referred to hereinafter would relate to FMA No.244 of 2009
and the Paper Book filed in the said proceeding.
The district town of Bankura is under Bankura Municipality. At Machantala in
Bankura town there exists a mosque which is being used by the members of the
minority community residing at Bankura town for religious purpose. From the
photographs disclosed in the proceeding it appears that there had been further
construction in the said mosque, which had no sanction from the Municipality,
although the law required such permission to be taken. The parties before us
admitted that such construction was totally illegal in absence of appropriate sanction
being obtained from the Municipality being the prescribed authority under the
Bengal Municipal Act. The Municipality, however, did not take any step against the
said mosque.
The respondent no. 1 and 2 (hereinafter referred to as the Dey respondents) were the
owners of the adjacent premises being plot no.804. They applied for sanction for
construction of a building on the said land in question. The then Chairman of the
Municipality sanctioned it as appears from the record. It was initially two storeyed.
The said respondents constructed further two floors being the second and the third
floor.
The dispute started when Dey respondents started constructing the building deviating
from the original plan and that too, by violating the basic requirements under the
building Rules.
A group of local residents belonging to the minority community made grievance as
against such illegal construction and made complaint with the Municipality. The
Municipality took no step either against the mosque or against Dey respondents in
respect of the respective illegal constructions carried on by them.
It further appears from the pleadings as well as the rival contentions that the plot
no.804 was initially required to be used as Mehaman Khana (Guest Room) being a
part of the mosque. The said property was transferred in 1967 in favour of the
predecessor of Dey respondents. According to Dey respondents their predecessor
filed an eviction suit in 1967 against one Gairam Pal who was running a Hotel on the
said plot in question having wooden and asbestos structure on the same. Ultimately,
the tenant was evicted and they got possession. The Chairman sanctioned a building
plan on October 13, 2003. The Municipality on May 2, 2005 regularized
unauthorised construction made by Dey respondents at the front side of the building
by accepting fine. On May 2, 2005 the Municipality also sanctioned the plan for
second and third floor. Initially there had been various criminal litigations initiated
against the husband of the respondent no.1 on the issue. According to Dey
respondents, all those litigations were futile. In 2006 the appellants approached the
Block Development Officer on the allegation that there had been an encroachment.
They could not succeed.
In this backdrop the present spate of litigations started. On July 28, 2006 the
appellants made a complaint before the Municipality alleging that there had been
violation of the Municipal Laws. The learned single Judge by judgment and order
dated November 6, 2006 directed the Municipality to dispose of the complaint by a
speaking order after inspection being conducted at the locale, if required. Dey
respondents were also restrained from making construction so long the reasoned
order was not passed.
The Chairman of the Municipality, upon consideration passed a reasoned order on
April 24, 2007 appearing at page 77-79 of the Paper Book. The Chairperson
observed that at her direction Dey respondents submitted modified plan which was
sanctioned by the Chairperson. Chairperson, upon perusal of the report of the
overseer observed that no illegality had been done by the Dey respondents. The
Chairperson gave certain directions which are as follows :-
i) Dey respondents would maintain six feet wide space from the ground floor up to
the sky level on the extreme eastern side of the building being extreme western side
of the mosque.
ii) Both parties would maintain six feet wide space for all purpose.
iii) No alteration would be allowed at any time.
iv) Dey respondents would not keep any window or door on their eastern wall
towards mosque.
v) The RCC slab projected on the eastern side of the building would be brought
down.
The members of the minority community filed a Title Suit being T.S. No.1021 of
2006 before the Civil Court inter alia for a declaration that the plaintiffs therein were
the lawful owners and the title holders of the scheduled property and Dey
respondents were making illegal construction by encroaching upon a portion of plot
no.805. Application for injunction was dismissed on contest.
The appellants filed their second writ petition challenging the reasoned order of the
Municipality inter alia on the ground that they were not heard. Moreover modified
plan was submitted behind their back. No copy was served upon them. The learned
single Judge quashed the order and directed consideration afresh upon hearing the
rival contentions. While doing so, the learned single judge observed "it shall be
open to the parties to agitate all points before the Chairman.........." The matter
was again heard by the Chairperson. At the time of hearing the appellants filed a
written notes on arguments wherein they raised the plea of illegality being committed
by Dey respondents on the other sides of the building which had no nexus with the
mosque. All possible objections with regard to the construction were taken in the
written notes of argument. The Chairperson decided to make a spot enquiry. The
engineers of the Municipality accordingly visited the spot and took measurement of
the building wherefrom it appeared that on the front side of the building two feet five
inches open space were kept at the ground floor level and thereafter no open space
was left by Dey respondents. The engineers were, however, satisfied on the
modifications done by Dey respondents of the eastern side which were pointed out
by the Municipality earlier. The engineers objected to the cantilever on the eastern
side from the first floor level reducing the gap from four feet to two feet. It was also
pointed out that there was no space left on the western side of the building.
Moreover no set back in the front side as also in eastern and western side was
maintained. The Chairperson observed that since illegal construction made by the
mosque was not the subject matter, no opinion was expressed. The Chairperson
observed that there was no violation on the backside and sufficient space was left
out. She directed no further construction to be made in the third floor and they
should maintain four feet wide space on the eastern side up to the first floor and six
feet wide space from the subsequent floors to eastern and western side.
Dey respondents challenged the order of the Chairperson dated July 18, 2007 by
filing a writ petition. The learned single Judge by judgment and order dated July 18,
2008 appearing at pages 164-170 of the Paper Book disposed of the writ petition by
giving the following directions :-
i) Dey respondents must strictly maintain the side open space on the eastern side as
required in law.
ii) They must demolish the extension over the beams on the eastern side.
iii) They would not fix any door or window on the eastern side.
Dey respondents accepted the said order and complied with the directions with His
Lordship. In course of hearing Mr. Dinabandhu Chowdhury, learned counsel
appearing for the appellants also did not make any grievance with regard to the
eastern side of the said building in question being the western side of the mosque.
Hence, we can safely conclude that there is peace on the western front of the mosque.
The appellants were, however, aggrieved as His Lordship did not entertain their
objections with regard to the front and western side of the building in question. His
Lordship held that they did not have locus standi to raise such objection.
Hence, this appeal by the appellants.
On perusal of the judgment and order impugned passed by His Lordship we find that
the learned Judge doubted the locus standi of the appellants. His Lordship observed
that the representation made by the appellants being the genesis of the dispute before
the High Court related to the eastern side only. Moreover the appellants did not
disclose as to how they were connected with the mosque. They did not even state
that they worshipped at the mosque. It was also not their case that they were
responsible for its management and supervision.
His Lordship observed that irregularities and illegalities, if any, in respect of other
parts were not the subject matter of the litigation before the High Court as the dispute
related to eastern side only. His Lordship recorded :-
"Learned advocate for private respondents submitted that if the petitioners do not
fix any window and/or door on the eastern wall of the petitioner's property at plot
no.804 and if the petitioners keep at least four feet side open space on the eastern
side of the petitioner's property, in that event, the said private respondents cannot
have any ground for feeling aggrieved."
His Lordship ultimately observed that they did not have any locus standi to raise
objection with regard to the other parts.
The other appeal being FMA No.519 relates to a writ petition filed by another group
inter alia asking for demolition of the construction in terms of the order dated July
18, 2007. The said writ petition was disposed of by another learned Judge by
judgment and order dated February 12, 2009 when His Lordship dismissed the writ
petition by imposing costs upon all the writ petitioners. His Lordship observed that
the writ petitioners knowing that the order dated July 18, 2007 had been set aside
subsequently by judgment and order dated July 18, 2008 misled this Court by
concealing such fact. Hence this second appeal by the other group.
Mr. Dinabandhu Chowdhury learned counsel appearing for the appellants took us to
the factual matrix as recorded above. Mr. Chowdhury raised three issues -
i) locus standi
ii) alleged concession made by the learned counsel and
iii) violation on the front and western side
While elaborating his argument on the first issue Mr. Chowdhury admitted that the
genesis of this litigation was the complaint lodged by them before the Municipality.
He took us to the complaint appearing at page 66-69 of the Paper Book and
contended that they complained of the illegal construction at a point when they had
not been given a copy of the sanctioned plan or the modified plan subsequently
submitted to the Municipality by Dey respondents. The learned single Judge asked
the Chairperson to consider the complaint. The Chairperson did not give personal
hearing and did not consider all aspects. The learned single Judge in the second writ
petition set aside the order of the Chairperson and directed her to consider the
objection by granting liberty to the parties to raise 'all points' before the
Chairperson. Hence, the order of the learned single Judge in the second writ petition
not only gave approval to the interference by the appellant but also their right to
object to the other illegalities being the front side and the western side. He then
referred to the written argument filed before the Chairperson wherein they raised
objection on all sides. Hence, the learned single Judge in the third writ petition
should not have decided otherwise on the locus standi issue.
On the second issue Mr. Chowdhury contended that even if the learned advocate
made any concession before the learned single Judge such concession was only
applicable to eastern side and not the other sides.
Mr. Chowdhury lastly contended that since they had locus standi as observed by the
learned single Judge in the second writ petition and since the appellants had pointed
out illegalities and irregularities through the written argument the Chairperson should
not have taken a lenient view and in any event the learned single Judge could not
have set aside the order of the Chairperson by directing regularization on certain
conditions restricted only to eastern side of the premises in question.
In support of his contention Mr. Chowdhury relied upon two Apex Court decisions
reported in 1974, Volume - II, Supreme Court Cases, Page 70 (State of Punjab and
Ors. -Versus- Amar Singh and Anr.) and 1974, Volume - II, Supreme Court Cases,
Page 506 (Shree K. Ramadas Shenoy -Versus- The Chief Officers Town Municipal
Council, UDIPI and Ors.)
Supporting the appellant Mr. Suddhasatta Banerjee Learned counsel appearing for
Mutuwalli contended that the construction carried out by the mosque was only to
withstand the old structure. The mosque did not carry out any further construction
save and except putting four beams to support the existing structure. Mr. Banerjee
further contended that since the Chairperson considered all aspects and passed a
reasoned order the learned single Judge should not have upset the same. Mr.
Banerjee lastly contended that law must take its own course and illegality committed
by Dey respondents should not be approved and/or ignored by this Court.
Mr. Samiran Mondal, learned counsel appearing for the Municipality contended that
the original building plan was sanctioned by the then Chairman without consulting
the engineers of the Municipality. He further contended that no open space had been
kept on the western side and the passage shown on the western side was actually a
Municipal road. He further contended that the construction on the front side was also
illegal in absence of statutory space being left out.
Opposing the appeal Mr. Mrinal Kanti Das, learned senior counsel appearing for Dey
respondents contended that since the appellants raised objection on behalf of the
mosque and the Dey respondents accepted the verdict of His Lordship and complied
with the direction of this Court with regard to the eastern side, the appellants could
not have any further grievance at all and the appeal should be dismissed on that
score. With regard to the western portion Mr. Das drew our attention to the Deed of
Conveyance appearing at pages 50-58 of the Paper Book to show that they became
the owner of the strip of land on the western side which was common with one Anil
Nandy. He also showed us a photograph showing Iron Gate fitted on the western
side. We also find from the sketch map that the said passage or road is common with
Shri Anil Nandy.
Mr. Das tried to justify the construction on the front side. He could not give any
plausible reason to satisfy us on that score. He, however, put emphasis on the
finding of His Lordship on the locus standi issue. Mr. Das contended that once
eastern side was taken care of by His Lordship and the grievance of the appellant was
met, they could not have raised any objection with regard to the other parts. He also
contended that the concession made by the learned lawyer quoted (Supra) sealed the
scope of the appellants, if any, with regard to their objection on the front side or
western side.
On the issue of the concession made by the learned counsel appearing for the
appellants before His Lordship, Mr. Das cited three decisions :-
i) Rajander Narayan Raie and Anr. -Versus- Bijai Govind Sing reported in Volume -
II, Moore's Indian Appeals, Page 253
ii) State of Maharashtra -Versus- Ramdas Shrinivas Nayak & Anr. reported in All
India Reporter, 1982, Supreme Court, Page 1249
iii) Apar (P) Ltd. and Anr. -Versus- Union of India and Ors. reported in 1992,
Supplementary, Volume - I, Supreme Court Cases, Page 1
To support his contention on the illegal construction Mr. Das relied on the following
decisions :-
i) All India Reporter, 1972, Calcutta, Page 459 (Purusottam Lalji and Ors. -Versus-
Ratan Lal Agarwalla and Ors.)
ii) All India Reporter, 1977, Calcutta, Page 174 (Lalit Mohan Mitra and Ors. -
Versus- Samirendra Kumar Ghosh and Ors.)
iii) All India Reporter, 1989, Supreme Court, Page 860 (M/s. Rajatha Enterprises -
Versus- S.K. Sharma and Ors.)
On the issue of estoppel Mr. Das cited this Court's decision reported in 1988,
Volume-II, Calcutta High Court Notes, Page 209 (Amalangsu Narayan Acharyya
Chowdhury -Versus- The Calcutta Municipal Corporation and Ors.)
After the order was passed by His Lordship the eastern side was taken care of.
Hence, we do not wish to go in detail on that score. The Chairperson observed that
there had been sufficient space left on the back side. That leaves us with two aspects
:-
i) Are the appellants entitled to raise objection with regard to front and western side?
ii) If so, what would be the consequence?
On the first issue we have no hesitation to support the judgment of the learned single
Judge. The appellants were members of the minority community. They objected to
the construction made on the eastern side of the building adjacent to mosque as
would appear from their complaint. The learned single Judge, while disposing the
second writ petition directed consideration of the said complaint by giving personal
hearing. The words "all points" referred to in His Lordship's decision were
restricted to the complaint made by the appellants. The written submission filed
subsequent to the complaint could not open other controversy and, in any way, could
not widen the scope of the direction of His Lordship.
If we look back we would see that the appellants raised a written complaint.
Municipality did not take any step. Appellants approached the learned single Judge.
His Lordship directed consideration by the Municipality. Municipality considered
the matter without giving hearing to the parties. In this backdrop the learned single
Judge set aside the order of the Chairperson and directed reconsideration. While
doing so, His Lordship gave liberty to raise "all points". In no stretch of
imagination this Court widened the scope beyond the original complaint. The
learned Judge was right in observing so. The concession made by the learned
advocate was clearly recorded by His Lordship. On perusal of the grounds we also
do not find any grievance made by the appellants to the effect that it was not properly
recorded by His Lordship. Mr. Chowdhury in his usual fairness did not make any
complain on that score. His explanation to the effect that such concession was only
with regard to the eastern part is not at all convincing. Hence, the learned Judge was
right in observing that the appellants did not have any locus standi to raise objection
with regard to the other part.
The decisions cited by Mr. Chowdhury on this score also do not support his
contention.
In case of State of Punjab (Supra) the controversy relates to a land which did not
form part of reserved or permissible area within the meaning of Punjab Security of
Land Tenures Act, 1953. Considering such controversy the Apex Court observed
inter alia that the public policy cannot be outwitted by consent orders. We do not
find any scope of application of this decision in the instant case.
In the case of K. Ramadas Shenoy (Supra), the Apex Court observed "The High
Court was not correct in holding that they impeached resolution sanctioning plan for
conversion of building into a cinema was in violation of Town Planning Scheme. Yet
it could not be disturbed because respondent no.3 is likely to have spent money. An
excess of statutory power cannot be validated by acquiescence in or by the operation
of an estoppel." This judgment also does not strictly support the appellants on the
issue of locus standi.
We thus hold that the appellants did not have any locus standi to raise any objection
with regard to the other parts of the building. The present litigation was not a public
interest litigation.
They raised objection before the Chairperson. The Municipality considered the
issue and ultimately the reasoned order merged in the order of the learned single
Judge. The appellants also made concession before the learned single Judge and they
cannot distract from the same. They are bound by the concession made before His
Lordship. We, thus hold that the appellants could not have any grievance in the
appeal more so when the direction for part demolition on the eastern side had already
been carried out by Dey respondents.
The learned single Judge while rejecting the contentions of the appellant observed as
follows: -
"With regard to the construction made by the petitioners on the other parts and/or
sides of the building in question at plot No.804, this court is not making any
observation on the same. It shall be for the respondents/municipal authorities to
think and act, if necessary, independently, if they feel so.........."
It is for the respondents/Municipal Authorities to take necessary action, if so required
under the law. We affirm such observation.
The appeals are disposed of without any further order as to costs.
Urgent xerox certified copy would be given to the parties, if applied for.
PRASENJIT MANDAL,J.
I agree.
[ASHIM KUMAR BANERJEE, J.] [PRASENJIT MANDAL,J.]