Calcutta High Court
Shri Jaichandlal Ashok Kumar & ... vs Nawab Yossuf & Anr on 15 November, 2022
ORDER SHEET
IA NO. GA/ 3/ 2020
(Old No. GA/792/2020)
In EC/125 of 2015
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SHRI JAICHANDLAL ASHOK KUMAR & COMPANY PVT. LTD.
VS
NAWAB YOSSUF & ANR.
BEFORE:
The Hon'ble Justice Bibhas Ranjan De
Date: 15.11.2022
Appearance:
Mr. Surajit Nath Mitra, Adv.
Mr. D. Kr. Jain,Adv.
Mr. Rajshree Dutta, Adv.
Mr. Abhishek Dutta, Adv.
...For the petitioner
Mr. Amitesh Banerjee, Ld. Sr. Standing Counsel
Mr. Soumendra Mukherjee, Adv. General
.....for the State
Mr. Anirudda Mitra, Adv.
Mr. S. Ganguli, Adv.
Disputes regarding development agreement dated 28th June, 1989 in
respect of Premises No. 5B, Outram Street, Kolkata between the parties to the
execution case, was dealt with by a sole arbitrator. An award was passed on
31st August, 2008 refusing to grant specific performance of the said
development agreement. That award was challenged by the decree holder/
petitioner by filing two separate applications and those were disposed of by this
Hon'ble Court on 17th April, 2013 by a common judgment, in favour of the
decree holder/ petitioner.
Again judgment debtors preferred an appeal against the common judgment
before the Hon'ble division bench of this Court, but that appeal was dismissed
holding inter alia that decree holder was entitled to specific performance of the
said development agreement dated 28th June, 1989.
Being arrived, judgment debtors filed a special leave petition which was
also dismissed on 27th January, 2014. Thereafter, decree holder/petitioner filed
execution case in the year 2015.
In execution case, special officer was appointed on 21st April, 2015 with a
direction to inspect the property in question and to remain in symbolic
possession. Accordingly, special officer visited the premises in question on 27th,
April, 2015 and took symbolic possession of the property in question.
Again on 7th May, 2015 judgment debtor no. 1 filed an application under
Section 47 of the Code of Civil Procedure before the division bench of this
Hon'ble Court. The said application was dismissed on contest on 21st February,
2017. Appeal preferred by the judgment debtors no. 1 from the order dated 21st
February, 2017 was also dismissed on contest on 25th April, 2017.
On 4th April, 2017 the execution case was disposed of with a direction
upon the special officer to obtain sanction plan from Kolkata Municipal
Corporation.
In terms of order dated 4th April, 2017 decree holder/petitioner deposited a
sum of Rs. 10,00,000/- with the said special officer on 8th April, 2017. Special
officer appointed by the Hon'ble Court was provided with all cooperation for
obtaining sanction plan.
By the intervention of the Hon'ble Court, the judgement debtor /petitioner
filed an application for extension of time to make the application by the special
officer with Kolkata Municipal Corporation for obtaining sanction of the
building plan upon production of "no objection certificate" from the land ceiling
department by the judgment debtors. The special officer being authorised to act
on behalf of the judgment debtors for the purpose of obtaining "no objection
certificate" from the Land Ceiling Department/ competent authority, took
several steps by sending letters to the Urban Land Ceiling Department/
competent authority. In spite of several communications between special officer
and said urban land selling department/ competent authority, no result was
yielded.
That is why, the decree holder /petitioner filed the instant application with
a prayer for direction upon the competent authority under the Urban Land
(Ceiling and Regulation) Act, 1976 for issuing "no objection certificate" on the
basis of application dated 10th October, 2018 made by special officer
appointed by this Hon'ble Court in execution case no. 125 of 2015, within a
specified period.
On 4th March, 2022 this Hon'ble Court allowed the prayer of competent
authority to file a report in the form of affidavit in this matter. Competent
authority submitted a report by an affidavit on 14.03.2022. Parties to the
instant application were given liberty to file affidavit in reply, thereto, if any,
within 3 days thereafter. But no affidavit was filed by either of the parties.
On perusal of the affidavit particularly para 18 onwards, it appears that
competent authority already served a notice under Section 6 (2) of the Urban
Land (Ceiling and Regulation) Act,1976 for filing statement in respect of
premises in question as competent authority was of the opinion that judgment
debtors hold vacant land. It also appears that the said notice was also received
by the judgment debtors.In para 22 of the report it is stated that no action was
taken in spite of non submission of application under Section 6 (1) of the said
act.Para 21 of the report says that "no objection certificate" can not be issued
as per provision of sub-Section (3) of Section 5 of the Act, 1976.
Nowhere in the report it is stated that competent authority served notice
under Section 6 (2) after coming to opinion that owners hold vacant land in
excess of seiling limit as no statement was submitted by the owners under
section 6(1) of the Act. It is needless to mention that the urban land (Ceiling
and Regulation) Act, 1976 came into force on 17.02.1976.
That being the position, the notice dated 03.12.2019 by the competent
authority under Act, 1976 that too after receiving an application dated 10th
October, 2018 made by the special officer appointed by this Court and also
several orders passed by this Court directing issuance of "no objection
certificate", in my opinion, is an effort to frustrate the execution proceeding in
terms of an award dated 31st August, 2008.
For the reasons, Urban Ceiling Department/competent authority is
directed to issue "no objection certificate" in terms of application dated 10th
October, 2008 made by the special officer, as early as possible but not beyond
four (4) weeks from date.
Accordingly, the instant application being no. GA 3 of 2020 (Old GA No.
792 of 2020) stands disposed of.
All parties to this application shall act on the server copy of this order
downloaded from the official website of this Court. Urgent Photostat certified
copy of this order, if applied for, be supplied to the parties upon compliance
with all requisite formalities.
[BIBHAS RANJAN DE, J.]
