Calcutta High Court (Appellete Side)
Propritors Of Tara Maa Construction vs The State Of West Bengal & Others on 25 March, 2015
Author: Aniruddha Bose
Bench: Aniruddha Bose
1
33 25.03.15. W.P. 4794 (W)_of 2015.
ab
Sri Debashis Bera & Anr.
Propritors of Tara Maa Construction
Vs
The State of West Bengal & Others.
Mr. Biswajit Mukherjee
Mr. Sabyasachi Chatterjee
... For the Petitioners.
Mr. N. C. Behani
... For the Howrah Municipal Corporation.
Mr. A. J. Sengupta
... For the Private Respondents.
Mr. Anwar Hossain ... For the Respondent No. 1.
The dispute in this writ petition arises out of a notice issued by the Howrah Municipal Corporation under Section 177(1) of the Howrah Municipal Corporation Act, 1980 requiring the owners of premises no. 90, Naskar Para Road, Howrah to stop forthwith work regarding "unauthorised constructioin of R.C.C. Structure of 4 story building deviating from sanction plan".
This was followed with a further intimation directing demolition of part of the building made in deviation from the sanctioned plan which was unauthorised. The second notice issued on 5th February, 2015 seeks deployment of police force for the purpose of carrying out such demolition. The petitioners before me claim to have developed the building on the basis of an agreement with the owners thereof, a copy of which has been made annexure "p1" to the writ petition. This agreement dated 3rd December, 2012 has been styled as "Promotion & Development Agreement". There was also a general power of attorney executed by the owner thereof 2 permitting the petitioners to undertake certain acts concerning the property in question. The development agreement is not registered but the general power of attorney appears to have been registered with the office of the District Sub-Register at Howrah. This general power of attorney has been executed on Non Judicial Stamp of Rs. 50/- but seeks to vest the person in whose favour the power of attorney was made the right to execute deed of convenience. On behalf of the owner of the building being the respondent no. 7, it is submitted that the power of attorney has subsequently been revoked.
Mr. Mukherjee, learned Counsel appearing for the petitioners submit that his clients have invested substantial sum of money for developing the premises in question and they would be prejudiced to a large extent if demolition is effected in respect thereof. He has drawn my attention to Section 177(1) of the Howrah Municipal Corporation Act, 1980 and contends that notice ought to have been issued to the petitioner also as they were developing the building on the basis of a valid agreement.
In this case, the actual owner of the building has not approached this Court. The development agreement is an unregistered one vesting no title in relation to the said property in favour of the petitioners. The plan which was submitted for sanction was also signed by the owner of the building. In the given context, in my opinion the petitioners cannot come within the ambit of the expression "At whose instance the erection or work has been commenced", as has been employed in Section 177(1) of the 1980 Act, to be entitled to receive the notice. It would be, in this case, the owner of the building at whose instance such erection or construction work 3 has been started. The developer may have invested money in the building but so far as his relationship with the municipal corporation is concerned in connection with the work being undertaken, his position would be akin to a contractor who is carrying on the work on behalf of the owner. Now, whom and in what manner the building or part thereof shall be sold would be purely on the basis of arrangement between the owner and the developer but the municipal corporation is not supposed to take cognizance of such private arrangement for the purpose of implementation of the provisions of the 1980 Act. Moreover, I have my doubt as to whether power to execute conveyance deed can be derived from an unregistered agreement, or from the power of attorney executed on non-judicial stamp paper of Rs. 50/-. These instruments cannot confer on the petitioners status of owner or confer on them any derivative title enabling them to maintain this action. In the event the petitioners are aggrieved with any default or flaw on the part of the owner, being the respondent no. 7, it would be pure contractual dispute which would be required to be resolved through a Court of competent civil jurisdiction.
The writ petition shall accordingly stand dismissed. This order however shall not impair or prejudice the rights of the parties to seek relief from the Court of competent civil jurisdiction, or any other legal forum, as may be permissible under the law.
There shall, however be, no order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be supplied to the learned Counsel for the parties as 4 expeditiously as possible, in compliance of usual formalities.
(Aniruddha Bose, J.)