Ram Babu Show vs The Howrah Municipal Corporation ...
2021 Latest Caselaw 5862 Cal

31.   29.11.2021
      Ct. No.06
      Tanmoy


                                      F.M.A. 970 of 2021
                                             With
                                    IA No: C.A.N. 1 of 2021

                                   Ram Babu Show
                                      -Versus-
                        The Howrah Municipal Corporation & Ors.

                                (Through Video Conference)


                   Mr. Haradhan Banerjee, Adv.,
                   Mr. Amitava Pain, Adv.,
                   Mr. Subhrangshu Datta, Adv.

                                 ...for the appellant.

                   Mr. Sandipan Banerjee, Adv.

                                 ...for the Howrah Municipal Corporation.

                   Mr. Mahendra Prasad Gupta, Adv.,
                   Ms. Antara Panja, Adv.

                                 ...for the private respondents.

The writ petitioner says that he has made a

representation under Section 175B of the Howrah

Municipal Corporation Act, 1980 (hereinafter to be

referred to as "the said Act") for cancellation of a

building plan sanctioned by the Corporation in favour

of the private respondents in respect of a particular plot

of land. He says that the sanction was obtained by

misrepresentation of facts. The private respondents

concealed from the Corporation authorities the fact that

the property in question, is thika property. In respect of

such a property a plan can be sanctioned only for

construction of a ground plus two-storeyed structure.

However, by suppression of facts the private

respondents have obtained sanction for construction of

a ground plus three-storeyed structure. Because of

such misrepresentation, the sanctioned plan should be

cancelled.

Since the Corporation was sitting over the

matter and not disposing of the petitioner's

representation, the petitioner approached the Writ

Court by filing W.P.A. 5595 of 2021, seeking inter alia,

a direction on the Corporation to dispose of his

representation expeditiously. By a judgment and order

dated June 29, 2021, the learned Single Judge

dismissed the writ petition on two-fold grounds : firstly,

the learned Judge held that the petitioner has no legal

right to challenge the sanction of the building plan in

question; secondly, it was held that the petitioner has

suppressed material facts from the Writ Court in not

having disclosed in the writ petition that the

petitioner's predecessors-in-interest had filed more

than one civil suit against the predecessors-in-interest

of the private respondents wherein the issue was as to

who was the thika owner in respect of the property in

question.

Being aggrieved by the order of dismissal, the

writ petitioner is before us by way of this appeal.

We have heard learned Counsel for the parties at

length. We are unable to agree with the learned Judge

that the petitioner has no locus standi to challenge the

sanction of the building plan in question. Section 175B

of the said Act does not specify as to who can challenge

the sanction of a building plan. All it says is that if the

Corporation finds out that the sanction was obtained

by misrepresenting or suppressing facts, the

Commissioner would be entitled to cancel the plan. In

our view, anybody who is likely to be affected by a

sanctioned plan obtained by misrepresentation, would

have the standing to approach the Corporation and

seek cancellation of the plan. In the present case, the

writ petitioner and the private respondents are

neighbours. They occupy adjoining properties. It is

possible that the writ petitioner will be adversely

affected if the private respondents make construction

on the basis of a building plan, the sanction whereof,

according to the writ petitioner, has been obtained by

misrepresentation of facts. Hence, we are of considered

view that the writ petitioner would have locus standi to

challenge the plan in question before the appropriate

authority.

Insofar as the question of suppression is

concerned, no one can dispute the proposition that a

person who approaches the Writ Court claiming relief,

must do so with clean hands. He must make full

disclosure of relevant facts and must not suppress any

material fact. The Writ Court is a Court of equity and if

it finds that the petitioner has suppressed relevant

facts, on that ground alone, relief will be denied.

However, non-mentioning of any and every fact

would not amount to suppression of material fact. The

fact must be such as would have a bearing on the

decision. In the present case, suits may have been filed

by the petitioner's predecessors-in-interest against the

predecessors-in-interest of the private respondents.

However, the question in such civil proceedings was

who had a better title to the premises in question and

also the premises which are the subject-matter of the

pending civil suit proceedings. We find that in 2020

also, a suit has been filed by the petitioner against the

private respondents. The suit is pending. The

petitioner's prayer for interim injunction has been

declined by the civil Court. However, according to us,

these facts are not relevant for the purpose of the

present writ proceedings. The issue before the

Corporation is not as to who, between the petitioner

and the private respondents, has better title in respect

of the property in question. The sole issue in the

representation of the petitioner before the Corporation

is whether or not the private respondents obtained

sanction of the relevant building plan by

misrepresentation. Accordingly, we are also unable to

agree with the learned Judge insofar as the finding of

suppression of material facts is concerned.

Accordingly, the order under appeal is set aside.

The Corporation authorities are directed to dispose of

the representation of the writ petitioner by a reasoned

order, in accordance with law and the applicable rules

and regulations within a period of eight weeks from the

date of communication of this order after giving an

opportunity of hearing to all the concerned parties

including the writ petitioner and the private

respondents. The decision so taken shall be

communicated to the parties concerned within a week

from the date of the decision. We make it clear that we

have not gone into the merits of the case at all. The

Corporation shall decide the writ petitioner's

representation uninfluenced by anything stated in this

order. Since no affidavit has been invited, the

allegations in the stay application are deemed not to be

admitted by the respondents.

We also make it clear that nothing in this order

shall have any effect on the pending civil suits between

the parties.

The appeal being F.M.A. 970 of 2021 along with

the connected application being IA No: C.A.N. 1 of 2021

are, accordingly, disposed of.

All parties shall act on the basis of a server copy

of this order downloaded from the official website of

this Court.

Let urgent photostat certified copy of this order,

if applied for, be supplied to learned Advocates for the

parties upon compliance with all usual formalities.

(Kausik Chanda, J.) (Arijit Banerjee, J.)