Calcutta High Court: While deciding three appeals related to illegal construction on Larica Inn’s property, a division bench comprising of Arijit Banerjee** and Rai Chattopadhyay,* JJ., affirmed Larica Inn’s right to the roof based on mutation and tax remittance, which established ownership. The Court deemed the KMC’s actions in granting sanction for additional construction without considering Larica Inn’s rights as erroneous, and upheld Larica Inn’s writ petition as maintainable.
Factual Matrix
In the instant matter, Dev-All (P) Ltd. (Dev-All), Mangaldeep Nursing and Diagnosis (P) Ltd. and Sweet Hut Super Construction are the appellant and Larica Inn (P) Ltd. (Larica Inn), Kanu Paul Chowdhury and Kolkata Municipal Corporation (KMC) are the respondents. A dispute arose from a joint venture agreement between Dev-All and Sweet Hut Super Construction for the construction of a multi-storeyed building. The Larica Inn bought part of the building from Dev-All and mutated the property in its name. Mangaldeep Nursing and Diagnosis (P) Ltd. also owned a separate portion of the property. The disputes emerged when Sweet Hut Super Construction and Mangaldeep Nursing and Diagnosis (P) Ltd. were accused of unauthorized construction on Larica Inn’s property, allegedly with collusion from the KMC. The Larica Inn and Kanu Paul Chowdhury filed a writ petition regarding a property dispute. The Single Judge found that Larica Inn’s rights over 50% of the roof were sacrosanct and not waived. The appellants were not authorized to make construction on the rooftop without Larica’s consent. The Single Judge ruled in favor of respondents and directed the demolition of unauthorized construction. Aggrieved by the impugned order the appellants filed three appeals challenging the judgment and order of a Single Bench dated 15-12-2016.
Moot Point
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Whether the writ petition challenging the additional sanctioned plan dated 03-05-2011, by the KMC is maintainable before the Court?
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Is the dispute over the ownership and construction rights of the property a civil dispute beyond the jurisdiction of the writ court?
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Whether there was any fraud or misrepresentation committed in obtaining the additional building plan, warranting its cancellation under Section 397 of the Kolkata Municipal Corporation Act, 1980 (KMC Act)?
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Whether the KMC failed in its statutory duties in redressing the grievances of the petitioners?
Parties’ Contentions
The appellants argued that the writ petition was not maintainable as it involved a civil dispute over property rights. It was contended that Larica Inn’s allegations of fraud and misrepresentation regarding the additional plan were baseless and premature. It was argued that the KMC had acted within its statutory duties, and any grievances should be addressed through proper channels. On the other hand, the respondents argued that the KMC failed to act on its representations regarding fraud and misrepresentation, justifying the writ petition. The respondents relied on precedents to support the Court’s intervention due to the KMC’s failure to fulfil its statutory obligations.
Court’s Observation
The Court found the writ petition maintainable under Article 226 of the Constitution of India, citing Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, and held that the preliminary point of maintainability regarding a title dispute was adequately addressed by the Single Bench, and therefore, no further hearing is deemed necessary. The Court emphasised that appellate court’s intervention would only occur if the lower court’s decision was found to be clearly wrong or based on apparent error.
The Court noted that Larica Inn has the right to 50% of the roof of a building accrued on 18-05-2005, when the deed was executed and at that time, the third-floor roof existed. The Court observed that the deed did not mention any future construction or rights to be bestowed upon Larica Inn. It was noted that the Larica Inn purchased the property along with other portions of the building through the deed, subsequently recorded its name as the owner through mutation and remitted taxes and a further deed was executed on 11-07-2009, forming the basis for granting sanction for additional construction by the KMC.
The Court affirmed Larica Inn’s right to the roof of the building based on the initial deed dated 18-05-2005 and held that the subsequent deed of 11-07-2009 did not alter Larica Inn’s established ownership rights. The Court asserted that the KMC’s approval of an additional building plan in 2011 without considering Larica Inn’s existing rights is erroneous and the KMC erred in not initiating a procedure under section 397 of the KMC Act, despite receiving a complaint from Larica Inn. The Court upheld the direction for demolition of unauthorized portions of the premises based on relevant case law.
Justice Arijit Banerjee’s Observation
While concurring Justice Rai Chattopadhyay, Justice Arijit Banerjee opined that that the registered deed of conveyance was not disputed by any party, and the matter solely revolved around its interpretation. He emphasised that KMC could not have sanctioned the additional building plan without Larica Inn’s consent and deemed appellants’ actions as surreptitious and clandestine. He also affirmed the Single Judge’s decision and stated that it was plausible in the given circumstances. He clarified that the Division Bench intervenes in intra-Court appeals only when the Single Judg’’s order is clearly wrong, which was not the case here.
Court’s Decision
The Court dismissed all three appeals and affirmed the Single Judge’s order dated 15-12-2016, in favor of Larica Inn. The Court declared the construction sanctioned by KMC without Larica Inn’s consent illegal, and the order for demolition was upheld. Any interim orders were vacated accordingly.
[Dev All (P) Ltd. v. Kolkata Municipal Corpn., 2024 SCC OnLine Cal 2528, order dated 12-03-2024]
*Judgment by Justice Rai Chattopadhyay
** Concurring Judgment by Justice Arijit Banerjee
Advocates who appeared in this case :
Mr. Saptangshu Basu, Sr. Adv. and Mr. Dipankar Halder, Counsel for the Appellant
Mr. Alak Kumar Ghosh, Mr. Gopal Chandra Das, Mr. Debangshu Mondal, Counsel for the KMC
Mr. Jaydip Kar, Sr. Adv., Mr. Nirmalya Biswas, Mr. Debdeep Sinha, Counsel for the Respondent 6 and 7
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