Calcutta High Court
Sri Gopendra Nath Bhanja vs Sri Gautam Bhanja & Ors on 27 June, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
CSOS 1 of 2023
Sri Gopendra Nath Bhanja
Versus
Sri Gautam Bhanja & Ors.
Mr. Souvick Mitra
... for the plaintiff.
Ms. Laboni Pan
... for the defendant nos. 1 to 12.
Mr. Akash Dutta
... for the defendant no. 13.
Hearing Concluded On : 19.06.2024
Judgment on : 27.06.2024
Krishna Rao, J.:
1. The plaintiff has filed the present Originating Summons suit for opinion from this Court on the following points:
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a. Whether execution of the proposed Development Agreement with respect to the Raghunath Chatterjee Street property, be for the benefit of the deities and if so, should the adult male members from the lineage of Dwarikanath Bhanja, the defendant nos. 1 to 12 herein, be directed to join in such agreement as a confirming party?
b. Whether the deities can be removed from the temple at Baharu and subsequently be consecrated and installed at the Raghunath Chatterjee Street Property to ensure their safety and security?
c. Would selling or dealing or grant of long lease in respect of owner's allocation under the Development Agreement, save and except the temple space be for the benefit of the deities?
2. During the hearing, the plaintiff has not pressed the point (b).
3. The plaintiff is the Sebait of the estate of Late Dwarkanath Bhanja. The defendant nos.1 to 12 are the adults in the male lineage of descendant of the founder late Dwarkanath Bhanja who would be the senior most respectively of the death of the plaintiff would become the next sole Sebait of the said deities. Dwarkanath Bhanja, the predecessor-in- interest of the plaintiff and the defendant nos. 1 to 12 was the sole and absolute owner of various properties, including land and buildings both in Kolkata as well as in Baharu village in the District of South 24 Parganas in the State of West Bengal. Dwarkanath Bhanja had constructed one temple at his residence, commonly known as "Bhanja Bati" at Baharu village and has installed the deities "Sri Sri Durga Mata Thakurani" and "Sri Sri Raghunath Jew".
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4. Dwarkanath Bhanja was also the owner of the property situated at 8, Raghunath Chatterjee Street, Kolkata-700009 comprising of land measuring about 3.5 cotttahs together with a partly three storied and partly two storied brick built building. On 15th September, 1884, Dwarkanth Bhanja executed a Deed of Arpannama. By the said Deed, Dwarkanath Bhanja, absolutely and irrevocably dedicated the immovable properties mentioned in Schedule "Ka" of the Deed unto his family deities Sri Sri Durga Mata Thakurani and Sri Sri Raghunath Jew with a view to make permanent provisions for the daily and occasionally seba, puja and periodical puja-archana, festival and other pious practices connected therewith. On 18th September, 1894, Dwarkanath Bhanja, executed another Deed of Arpannama by modifying the line of devolution as stated in the earlier Deed of Dedication. Kalidas Bhanja, the eldest son of Dwarkanath Bhanja was thus named as next Sebait in place of Haranath Bhanja, after the death of Dwarkanath Bhanja.
5. Dwarkanath Bhanja died on 28th August, 1898 and after his death, his eldest son Kalidas Bhanja became the next Sebait of the deities. Kalidas Bhanja died on 15th June, 1935 and after his death, senior most adult member in the lineage, namely Kshetra Nath Bhanja became the next Sebait. Kshetra Nath Bhanja died on 25th August, 1950, thereafter Manindra Nath Bhanja became the Sebait and now the plaintiff is the Sebait.
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6. The Government of West Bengal acquired the entire land situated at Baharu except the temple where the deities are installed. The Raghunath Chatterjee Street property comprises of eight rooms, one veranda along with bath and privy on the ground floor and five rooms and two kitchens on the first floor and one 'chilekotha' on the second floor.
7. Ceremonies of the deities include observing defined rituals on certain auspicious days approximate an amount Rs.70,000/- per year is required. In addition for regular seba puja, salary of the priest and staffs an amount of Rs.1,00,000/- per year is required. Further Municipal taxes and other taxes are to be paid with respect to the said property per year.
8. Mr. Souvick Mitra, Learned Advocate, representing the plaintiff submits that the condition of the Raghunath Chatterjee Street property is in dilapidated condition and due to dearth of adequate income of the debutter estates, no repair or renovation work is possible. He submits that condition of the temple situated at Baharu and dalan also required repairs and maintenance.
9. Mr. Mitra submits that the present sebait is aged about 94 years and is seriously ill. Most of the adult male members from the family of the Settlor, had to move out of Baharu and some are settled either in Kolkata or at different states outside of West Bengal. He submits that 5 Bhanja Bati at Baharu is now kept under lock and key, save and except few rooms on the ground floor allocated to the temple staffs.
10. Mr. Mitra submits that on several occasions the idols, their ornaments, utensils and apparels were stolen and the police has registered cases and recovered the stolen articles and the same was released on execution of bonds and undertaking. He submits that the properties are in dilapidated conditions and it is not possible for the sebait to renovate or repair the same due to lack of fund and there is no income from the said property at present.
11. He submits that the defendant no.13 who is the proprietor of one construction company, namely "New Simplex Engineering" by way of communication dated 28th May, 2007, approached the then Sebait Late Nirendranath Bhanja for development of Raghunath Chatterjee Street Property with certain conditions but the same was not worked out and accordingly, the defendant no.13 has submitted fresh proposal with modified conditions which reads as follows:
(a) I will make payment of a sum of Rs.
18,00,000/- to the debottor by instalment in the manner as follows, which will be utilized for the benefit and upliftment of the debottor only (non- refundable forfeited money);
(i) Rs. 2,00,000/- before execution of the Agreement;
(ii) Rs. 3,00,000/- after getting the sanction plan from the KMC or before commencement of construction of the building;
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(iii) Rs. 6,50,000/- after completion of super structure of the proposed building;
(iv) Rs. 6,50,000/- before handing over the owner's allotted portion.
(b) Additionally, another payment of Rs.
12,00,000/- (Rupees Twelve Lakhs) over and above the aforesaid amount shall be treated as enhanced consideration for the benefit of the deities, that is to say, total Rs.30,00,000/- (Rupees Thirty Lakhs) only shall be paid by the developer in favour of the deities in renspect of the said premises;
(c) The entire ground floor of the said building shall be allotted in favour of the deities;
(d) Full roof right of the building shall be entrusted to the benefit of the deities.
12. He submits that on receipt of the proposal, a meeting was conducted amongst the adult male descendants of Late Dwarkanath Bhanja including the plaintiff on 28th April, 2022 and by way of Resolution, all have accepted the modified proposal of the defendant no.13.
13. By an order dated 1st September, 2023, this Court has directed the plaintiff to serve the copy of the plaint along with all legible annexures to the Kolkata Municipal Corporation through the Building Department with a copy to the Executive Engineer (Building) of Borough-IV of KMC as also to the Deputy Director (Building) (North) of KMC so that the KMC is represented before this Court on the date to apprise this Court as to the maximum constructed area that may be available by 7 demolishing the old structure and constructing a new building with the Floor Area Ratio (FAR) that may be sanctioned.
Order passed by this Court dated 1st September, 2023, the Executing Engineer (Building) of Borough-IV of KMC has submitted a report which reads as follows:
"The land area as per deed is 234.113 square meter and as per physical is 212.243 square meter. Abutting road width at two points is 1.5 meter and 1.8 meter respectively. Hence permissible F.A.R as per 59(2) of KMC Building Rule 2009 is 1 (one) and maximum constructed area is 212.243 square meter."
14. On 18th January, 2024, the defendant no. 13 has filed the supplementary affidavit wherein the defendant no. 13 after considering the report submitted by the KMC has submitted modified proposal of development of the property which are as follows:
"Total Land area (physical) - 3 cottah 3 chittack = 2295 square feet Total sanctioned area = 2295 square x 50% = 1147.50 square feet = 1150 square feet approx.
Construction cost of two floors = 1150 x 2 floors x 2000/- = Rs. 46,00,000/-
Expected sale price Rs. 5000/- per square feet x 1150 square feet = Rs. 57,50,000/-
Profit = Rs. 11,50,000/-."8
15. In the said supplementary affidavit, the defendant no. 13 has also submitted the new proposal for payment to the plaintiff and the defendants which reads as follows:
"(a) Payment of a sum of Rs. 10,00,000/- to the debuttor by instalment in the manner as follows, (non-refundable forfeited money);
i. Rs. 2,50,000/- before execution of the Agreement.
ii. Rs. 2,50,000/- after getting the sanction plan from the KMC or before commencement of construction of the building;
iii. Rs. 2,50,000/- after completion of super structure of the proposed building;
iv. Rs. 2,50,000/- before handling over the owner's allotted portion.
(b) The entire ground floor of the said building shall be allotted in favour of the deities;
(c) The entire first floor of the said building shall be allotted in favour of the Developer;
(d) Roof right of the building shall be used for common purpose of the occupants including benefit of the deities."
16. The new/amended proposal of the defendant no. 13 was again discussed amongst the plaintiff and the defendants being the adult male descendants of Late Dwarkanath Bhanja including the sole Sebait, Mr. Gopendra Nath Bhanja in the meeting held on 10th April, 2024 wherein all have given consent to accept the modified proposal of the defendant no. 13 and resolved as follows:
"We refer to the matters discussed in the virtual meeting held on 10.04.2004 as pointed by Shri 9 Indranil Bhanja in that meeting it was noted that pursuant to the recent development in the proceeding being CS OS No.01 of 2023 pending before the Hon'ble High Court at Calcutta, especially after filing of the Supplementary Affidavit by the Developer, Shri Debasis Pal for development of the Debuttar property in the name of Shri Shri Durga Mata Thakurani, namely the premises number 8, Raghunath Chatterjee Street, Kolkata 700006, which states that at the said premises, only G+1 storied construction shall be raised, it has now required between us to come up with a proper settlement considering the benefit and upliftment of the deities.
Therefore, in compliance of the order dated 03.04.2024, We the undersigned being the adult male descendants of Late Dwarka Nath Bhanja, including the sole sebait Mr. Gopendra Nath Bhanja, hereby decide that the deities shall not be shifted from the temple at Baharu for installation at the Raghunath Chatterjee Street Property. Whereas, to ensure their safety and security, selling or dealing or grant of long lease in respect of owner's allocation under the said proposed Development Agreement can be considered in future, subject to approval and confirmation of Hon'ble High Court at Calcutta.
We subscribe our respective signatures below in approval of the aforesaid decision and, do further give our consent that SRI SANTANU BHANJA, son of Late Jatish Chandra Bhanja, residing at 10C, Raghunath Chatterjee Street, Kolkata-700006, Post Office Beadon Street Police Station Amherst Street, shall affirm Affidavit and also shall file the same before The Hon'ble High Court at Calcutta in the above proceeding in consonance of the above decision.
1. Gopendra Nath Bhanja
2. Gautam Bhanja
3. Kamal Kumar Bhanja
4. Suranjan Bhanja
5. Santanu Bhanja 10
6. Indranil Bhanja
7. Sourav Bhanja
8. Sounak Bhanja
9. Sayak Bhanja
10. Sayan Bhanja
11. Arpan Bhanja
12. Trinanjan Bhanja."
17. This Court by an order dated 12th June, 2024, directed the defendant no. 13 to file an affidavit by enclosing the proposed plan which would be constructed by the defendant no. 13. In compliance of the said order, the defendant no. 13 has filed supplementary affidavit by enclosing the proposed plan which is to be constructed in the said premises consisting of two numbers of two bedroom flats, living room, dining room and other facilities in the ground floor.
18. As per the Deed of Dedication executed by Shri Dwarka Nath Bhanja, the maintenance of the properties, payment of rents and arrangements for puja and festival puja and payment of salary to the brahmin priests and other staffs will be made from the income and usufructs of the properties and whatever expenses that are to be incurred for preservation of the said properties and purchasing of ornaments and utensils and other assets for performing seba puja and repairing of dalan and repairing of other kinds shall be made from the income and usufructs of the said properties. In the said Deed, it is also mentioned 11 that if the income and usufructs increased and there remain any surplus money after performing the regular work then the said surplus will also be spent in the seba puja and festivals of Sri Sri Raghunath Jew.
19. Now, for the ceremonies of deities includes observing defined rituals on certain auspicious day such as 'Ambubachi, Janmashtami, Durga Pujo, Lakshmi Pujo, Shibaratri, Ganesh Pujo, Basanti Pujo, Kali Pujo, Jagaddhatri Pujo and estimated amount of Rs.70,000/- is required every year. In addition to the above, regular deb seba calls for the appointment of regular bramhin priests and permanent supporting staffs, the estimated amount is Rs.1,00,000/- every year is required. Apart from the same, Municipal Taxes for the Raghunath Chatterjee Street of the property is to be paid every year. It is found that the financial condition of the debutter estates is not good and both the temples situated at Bhanja Bati at Baharu as well as the Raghunath Chatterjee Street Property are required urgent repair for which the considerable amount is required to the Sebaits.
20. Considering the above circumstances, report submitted by the KMC, the new/amended proposal submitted by the defendant no. 13, the plan submitted by the defendant no. 13 and the resolution taken by the plaintiff and the defendants by accepting the proposal of the defendant no. 13, this Court answered the questions raised by the plaintiff which are as follows:
a. As regard question (a) is in affirmative.12
b. As regard question (b) no answer is given as the parties have not pressed the question no.2.
c. As regard question (c) is in affirmative.
21. In view of the above, CSOS 1 of 2023 is thus disposed of.
(Krishna Rao, J.)