Calcutta High Court
Anandlok Welfare Association & ... vs Kolkata Municipal Corporation & ... on 24 February, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
(Via Video Conference)
BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur
W.P.O No. 992 of 2015
IA No. G.A./1/2015 (Old No. GA/3088/2015)
GA/2/2018 (Old No. GA/1540/2018)
with
W.P.O No. 990 of 2016
IA No. G.A./1/2018 (Old No. GA/1543/2018)
with
W.P.O No. 492 of 2017
IA No. G.A./1/2018 (Old No. GA/1541/2018)
ANANDLOK WELFARE ASSOCIATION & ANOTHER
-vs-
KOLKATA MUNICIPAL CORPORATION & OTHERS
For the Petitioners : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Subrata Kumar Basu, Adv.
Mr. Siddharta Basu, Adv.
Mr. Shrijeet Biswas, Adv.
Mr. R.L Mitra, Adv.
For the Respondents : Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Satadeep Bhattacharyya, Adv.
Mr. Soumya Roy Chowdhury, Adv.
Mr. Awani Kr. Roy, Adv.
Mr. Surajit Biswas, Adv.
Mr. S. Bajoria, Adv.
Mr. Pushan Majumdar, Adv.
For KMC : Mr. Biswajit Mukherjee, Adv.
Mr. Swapan Kumar Debnath, Adv.
Heard on : 18.08.2021, 07.10.2021, 09.11.2021
Judgment on : 24.02.2022
Ravi Krishan Kapur, J.:
1. All these writ petitions raise connected questions of law and fact and
had been heard analogously by consent of the parties.
2. The common thread connecting all these writ petitions comprises of
land measuring approximately 700 square meters situated at 227A,
AJC Bose Road, Kolkata having frontage and a separate access gate
from AJC Bose Road ('the premises'). The premises is separated by a
4.5 feet high brick wall from premises no.227A, AJC Bose Road which
is a multistoried building named 'Anandalok' having a separate
driveway and its own access. The premises has been the subject
matter of diverse litigation between the parties.
3. The petitioners in all these petitions are one, Anandalok Welfare
Association and its Secretary. All the members of the petitioner
association are also the owners of the 72 flats comprising of the
multistoried building 'Anandalok'. All the respective flats had been
purchased by way of registered deeds of conveyance executed by the
erstwhile promoter who was also the then owner of the entire
premises.
4. In WP 492 of 2017, the petitioners have challenged a final order dated
24 May, 2011 as well as the order dated 6 April, 2017 passed by the
Municipal Building Tribunal in Appeal no.83 of 2004 which relates to
construction of a boundary wall. In WP 990 of 2016, the petitioners
have challenged an order of mutation dated 5 July, 2016 passed by the
Chief Manager Revenue (South), Kolkata Municipal Corporation with
respect to 700 square meters of land in respect of the premises. In WP
992 of 2015, the petitioners have challenged the mutation granted in
respect of the premises.
5. Originally, the multistoried building "Anandlok" was constructed by
one M/s Jenny Christensen S.A Ltd on a total area of 2839.273 square
meters at premises no. 227 Acharya Jagadish Chandra Bose Road,
Kolkata- 700020 of which the covered area utilised for construction
was 1438.207 square meters and the rest of the area including the
premises was left vacant, in consonance with the then extant
provisions of law.
6. The petitioners allege that, the premises is an inseparable part and
parcel of the original premises. The petitioners also allege the
respondent No. 6 in apportioning the plot from the uncovered area i.e.,
the premises, has had the same mutated in the name of M/s City
Enclave, and now claims a separate assessee number in respect of the
premises and has thereafter has also had a building plan sanctioned
by Kolkata Municipal Corporation in respect of the premises.
7. The petitioners further allege that, by an order passed by the Urban
Land Ceiling Authorities, the premises had been initially kept vacant.
In fact, at the time of purchase the premises was shown as a parking
space for all the flat owners in a building plan which had been
presented to all the members of the petitioner association. It is also
alleged that the premises was shown in the map enclosed with the
Deed of Conveyance executed by and between M/s Jenny Christensen
(Service Apartment) Private Limited and the respective flat owners.
Subsequently, the respondent No. 5, M/s Jenny Christensen (Service
Apartment) Private Limited, enclosed the premises by constructing a
125mm brick wall surrounding the premises and the premises was
sold to Neelambar Caterers Private Limited by a Deed of Conveyance
dated 22nd January 2001.
8. On behalf of the respondent No 6, it is submitted that, the premises
was never any part or portion of the Deed of Conveyance executed
between the flat owners and M/s Jenny Christensen (Service
Apartment) Private Limited. It is further submitted that, subsequently,
the premises has been sold to the respondent No.6 by M/s Jenny
Christensen (Service Apartment) Private Limited after complying with
all the necessary formalities. It is also submitted that, the petitioner
association was formed by the 72 flat owners for the maintenance of
the Anandlok Building and that no ownership rights were ever
transferred to the Association. In this connection, reliance has also
been placed on an unreported decision passed on 27 November 2019
in C.O. No 3384 of 2019.
9. On behalf of the Kolkata Municipal Corporation, it is submitted that,
the order passed by the Chief Manager, Revenue which is under
challenge in W.P. No 990 of 2016, is a well reasoned order. Insofar as
the merits of W.P No 990 of 2016 and W.P No 992 of 2015 are
concerned, the grievances of the petitioners are common. It is further
submitted that, KMC does not decide the aspect of title in a mutation
proceeding, it merely identifies the person who pays the property tax in
respect of a particular premises.
10. I am unable to find any enforceable right which the petitioners can
claim to have in respect of the premises or any portion thereof. I find
that there is no mention of the premises or any portion thereof in the
Deed of Conveyance being conveyed as a car parking space to any of
the flat owners of Anandlok Building. This indisputable factual
position would also be borne out from the Memorandum of Association
of the petitioner no.1. In M.S. Jain Vs. State of Haryana (AIR 1977 SC
276) it has been held that "none can claim a mandamus without the
existence of a legally enforceable right. A person can only be said to be
aggrieved only when the person is denied of a legal right by someone
who has a legal duty to do something or abstain from doing something".
11. It was also contended on behalf of the respondent no.6 that the
petitioners have no locus to file these petitions. I find that by an order
dated 27 November 2019, a Learned Single Judge of this Court in C.O
No 3384 of 2019 had held that the petitioners had no right to file a
suit, since the petitioner association was not a juristic person or a
person aggrieved by any action of the respondents against it.
Significantly, the Special Leave Petition preferred against the order
dated 19 November, 2020 had been dismissed. I find that, even though
the observations in the order dated 27 November, 2019 were tentative
in nature and not binding, there is much force in this argument. The
condition precedent to the grant of any relief under Article 226 is an
existence of a fundamental right of a person and the infringement of
such right. The right which forms the very basis under Article 226 of
the Constitution, is a personal or individual right, 12, I.C. Bose Road
Tenants' Association Vs. Collector of Howrah and Ors. (AIR 1977 Cal
437), Sha-San Infrastructure Pvt. Ltd Vs Thakur Corner Byabsayee
Kalyan Samity & Ors. (2010 (3) CHN 755) and Asis Dutta & Ors. Vs
State of West Bengal & Ors. (2006 (4) CHN 311).
12. However, since the parties have been heard extensively on merits, I
deal with the merits of the petition and choose not to dismiss these
petitions on the ground of locus standi of the petitioners.
13. In W.P No 492 of 2017, I find that the subject matter of challenge is a
final order passed by the Learned Municipal Building Corporation
dated 24 May 2011 and 6 April 2017 respectively. I have also perused
the impugned orders in W.P No 492 of 2017. I find that there is no
reason whatsoever to interfere with the orders dated 24 May 2011 or 6
April 2017 passed by the Building Tribunal. I find that the impugned
orders are reasoned orders and consider all the relevant facts and
circumstances of the case. There is no illegality, irrationality nor
perversity nor unreasonableness warranting any interference with the
impugned orders. In the order dated 24 May 2011, it has been held
that, the petitioners had failed to produce any purchase deed which
would demonstrate that the premises was shown to be included in any
portion of the building plan. I also find from the order of the Special
Officer (Building) and the Building Tribunal dated 18.10.2003 and
24.05.2011 respectively that, the premises was specifically excluded
from the sanction plan. It has been also observed in the said orders
that the building plan relied on the petitioners was fabricated as the
premises was at the relevant time under the control of the Urban Land
Ceiling Authorities. I also do not find any procedural impropriety
warranting any interference with the impugned order. Hence, I find no
reason to interfere with any of the impugned orders.
14. Accordingly W.P No 992 of 2015 alongwith IA No. G.A./1/2015 (Old
No. GA/3088/2015) and GA/2/2018 (Old No. GA/1540/2018), W.P No
990 of 2016 alongwith IA No. G.A./1/2018 (Old No. GA/1543/2018)
and W. P No 492 of 2017 alongwith IA No. G.A./1/2018 (Old No.
GA/1541/2018) are dismissed. However, there shall be no orders as to
costs.
(Ravi Krishan Kapur, J.)
