Calcutta High Court
Arti Verma vs M/S. Anndata Developers Pvt. Ltd. ... on 17 November, 2022
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/111/2022
WITH
CC/19/2022
WPO/577/2017
IA NO: GA/1/2022
ARTI VERMA
VS
M/S. ANNDATA DEVELOPERS PVT. LTD. & ORS.
And
APOT/112/2022
WITH
CC/58/2021
WPO/577/2017
IA NO: GA/2/2022
ARTI VERMA
VS
BRIJRATAN MUNDHRA & ORS.
BERORE: THE HON'BLE JUSTICE ARIJIT BANERJEE
AND
THE HON'BLE JUSTICE APURBA SINHA RAY
For the appellant : Mr. Kishore Dutta, Sr. Adv.
Mrs. Noelle Dey (Banerjee), Adv.
Mr. Dwaipayan Basu Mallick, Adv.
Mr. Saunavo Basu, Adv.
For the Anndata : Mr. Kalyan Bandopadhyay, Sr. Adv.
Developer Pvt. Ltd. Mr. Susovan Sengupta, Sr. Adv.
Mr. Tapas Saha, Adv.
Mr. Debdatta Saha, Adv.
Mr. Diprav Deb, Adv.
For the KMC : Mr. Barin Banerjee, Adv.
Mr. Dilip Kumar Chatterjee, Adv.
For the State : Mrs. Sipra Majumder, Adv.
Mrs. Debarati Sen (Bose), Adv.
Heard On :02.09.2022, 07.09.2022, 16.09.2022 & 21.09.2022
CAV On : 21.09.2022
Judgment On : 17.11.2022
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Arijit Banerjee, J.
1. These two appeals arise out of the same set of facts and hence have
been taken up together for hearing and disposal.
2. The appellant in both the appeals is a tenant in respect of portions of
the 2nd and 4th floors of premises No. 138 Cotton Street, Kolkata-700007.
The appellant challenged a demolition notice issued by the Kolkata
Municipal Corporation (in short 'KMC') under Section 411 of the KMC Act,
1980, on August 8, 2016, by filing W.P.O. No. 577 of 2017. The
landlord/owner of the said premises, M/S Anndata Developers Pvt. Ltd.
(hereinafter referred to as 'Anndata') is a party respondent in the writ
petition. The appellant herein filed an application in the writ petition being
G.A. No. 1 of 2021 alleging that during pendency of the writ petition, the
owner of the premises wrongfully demolished a portion of the second floor
of the said premises which was under the occupation of the appellant (herein
referred to as 'Arti'). In that application Arti prayed for a direction on
Anndata to reconstruct the demolished portion at its cost and restore
possession of such reconstructed portion to Arti.
3. The said application was disposed of by a learned Single Judge by an
order dated October 19, 2021, the operative portion whereof reads as
follows:-
"Yet, in view of the fair undertaking given by learned Counsel for
the respondent no. 7 on instruction from his client, the respondent
no. 7 is directed to provide adequate temporary accommodation to
the applicants for the time being, within reasonable physical
proximity of the demolished premises, till possession of the
commensurate portion of the newly constructed building is handed
over to the applicants, as per their previous undertaking.
Such temporary accommodation shall be provided by the
private respondent, that is, respondent no. 7 within October 22,
2021 positively. The respondent no. 7 shall further ensure that
completion certificate is obtained at the earliest from the KMC for
handing over possession of a commensurate portion of the newly
constructed structure to the applicants as soon as possible. It is
further clarified that this order is only of an ad hoc nature and
shall not affect/prejudice in any manner the rights and contentions
of any of the parties in the main writ petition. All questions,
including the question of maintainability of the writ petition, are
kept open for being decided at the final hearing of the writ
petition. The present arrangement shall be subject to any order
passed by the appropriate Bench while disposing of the writ
petition finally."
4. Before proceeding further it may be noted that in the said writ petition
Anndata, through one of its directors, Brijratan Mundhra, had filed an
affidavit wherein, the dilapidated condition of the building in question and
the need to demolish the same for reconstruction, was highlighted and an
undertaking was recorded to the following effect:-
"It is a fact that the respondent no. 7 herein assures the writ
petitioners herein to the extent that the respondent no. 7 would
provide the required spaces to the writ petitioners herein as soon
as the respondent no. 7 would complete the newly constructed
building over the said premises provided further the respondent
no. 7 would get the completion certificate regarding construction
of newly building over the said premises from the competent
authority of the respondent Kolkata Municipal Corporation.
That the respondent no. 7 are giving an undertaking to the effect
that the writ petitioners would get the same and in terms of Square
feet as they are rightly enjoying over the said premises in question
after getting approval from the respondent Kolkata Municipal
Corporation relating to completion certificate of the newly built
building over the said premises in accordance with the necessary
Building Rules of the Kolkata Municipal Corporation Act, 1980."
5. Alleging violation of the order dated October 19, 2021, Arti filed a
contempt application against the Directors of Anndata being CC/58/2021.
The contempt application was disposed of by the learned Single Judge by an
order dated January 31, 2022. APOT 112 of 2022 is an appeal filed by Arti
against the said order dated January 31, 2022.
6. Subsequently, Anndata filed a contempt application being CC 19 of
2022 against Arti for alleged violation of the order dated January 31, 2022,
passed on Arti's contempt application. An order dated June 14, 2022, was
passed on such application which is the subject matter of challenge in APOT
111 of 2022.
In re: A.P.O.T No. 112 of 2022
7. We have taken up this appeal first, since it is directed against an order
which is earlier in point of time.
8. As noted above, the order appealed against was passed on January 31,
2022, on a contempt application filed by the present appellant alleging
violation of the order dated October 19, 2021, passed on GA No. 1 of 2021
filed in W.P.O no. 577 of 2017. The impugned judgment and order in effect,
makes an interim arrangement for the present appellant to shift to an
alternative accommodation, the rent whereof would be substantially borne
by Anndata, to enable and facilitate demolition and reconstruction of the
building in a portion whereof Arti resides as tenant.
9. The salient directions in the order impugned are as follows:
(i) By February 15, 2022, Anndata shall make over to Arti current
account payee cheque (s) to the tune of Rs. 1,50,500/-.
(ii) Within February 15, 2022, Anndata shall also handover post dated
cheques to the tune of Rs. 50, 000/- per month to cover part of the
petitioner's rent for the temporary alternative accommodation for
the period of May, 2022 till December, 2024.
(iii) Upon the said cheques being handed over, Arti shall shift from her
existing residence to her new temporary accommodation and hand
over vacant possession of the current accommodation to Anndata,
positively by February 28, 2022.
(iv) Anndata shall make full endeavour to complete the new
construction within December, 2024 and re-accommodate Arti in
the newly constructed building. The space to be handed over to
Arti in the new building would be commensurate with the size and
standard of her current accommodation.
(v) If the new reconstructed accommodation is handed over to Arti
before the Month of December, 2024, she will return the balance
number of post dated cheques then remaining outstanding, to
Anndata.
(vi) This arrangement would be without prejudice to the rights and
contention of the parties in the main writ petition.
10. From the tenor of the aforesaid order it would appear that the same
was passed with the tacit consent of the parties although such consent was
not recorded explicitly. In any event, we find absolutely no infirmity in the
order under appeal. The order is on extremely reasonable, workable and
practical order. We are told that in terms of the said order the cheques were
made over by Anndata and /or on its behalf to Arti and several of such
cheques have been encashed by Arti. Arti should honour her obligation
under the impugned order by handing over vacant possession of the portions
in her occupation, to Anndata, for the purpose of demolition and
reconstruction of the building in question. In our view, there is nothing
wrong with the impugned order. None of the grounds in the memorandum of
appeal impresses us.
11. At the time of hearing, an apprehension was expressed on behalf of
Arti that before she hands over possession of the tenanted portion to
Anndata, it should first be ascertained as to how much area is in her
occupation as otherwise, there could be future complications regarding
putting her back in possession of an equivalent area in the reconstructed
building. By an order dated July 20, 2022, we had appointed a surveyor from
the panel of surveyors maintained by this Court. The relevant portion of the
said order reads as follows:-
"We appoint Sri Chandan Ghosh, Mobile : 9830834900/
9477902086/ 8961621995 from the panel of Surveyors maintained
by the High Court, to inspect the second and fourth floors of the
building in question and record the area of the same in the
presence of the representatives of the appellant and the owner. The
surveyor shall also take into account the municipal records
pertaining to the premises in question and the tenancy of the
appellant. The surveyor shall serve at least 48 hours' notice on the
owner and the appellant prior to visiting the building in question.
The surveyor shall be entitled to take such assistance as may be
necessary for measuring the portion of the building in question in
the occupation of the appellant. He shall file a report clearly
indicating the precise area under the occupation of the appellant in
the building in question and any other relevant facts that he may
deem fit and proper. The surveyor shall be entitled to an initial
remuneration of Rs. 50,000/- to be shared equally by the parties at
the first instance.
The KMC shall render all assistance to be surveyor and shall
forthwith produce all records that the surveyor may call for to
enable the surveyor to carry out this order."
12. Pursuant to the said order, the surveyor conducted local inspection and
has filed a report which is on record.
13. We are really at a loss to understand as to why Arti is aggrieved by
the order assailed in this appeal.
14. The order amounts to an ad-hoc interim arrangement without
prejudice to the rights and contentions of the parties in the pending writ
petition. In our view, the learned Judge beautifully balanced the equities. It
appears that the building in question requires demolition and reconstruction.
Hence, Arti must vacate the tenanted portion she presently occupies to
facilitate demolition and reconstruction of the building. The learned Judge
has also been careful to ensure that Arti is substantially compensated for any
inconvenience she may suffer or monetary burden that may come upon her
for temporarily living in alternative accommodation. The learned Judge has
also ensured that Arti will be put back in possession of an equal area which
she now occupies, in the reconstructed building.
15. We see no reason to interfere with the order under appeal. APOT 112
is accordingly dismissed.
In re: A.P.O.T No. 111 of 2022
16. As noted above Anndata filed an application against Arti for alleged
violation of the order dated January 31, 2022. Such application, being CC 19
of 2022, was disposed of by an order dated June 14, 2022, which is under
challenge in this appeal at the instance of Arti.
17. We have already noted the salient directions in the order dated
January 31, 2022.
18. In the contempt application Anndata complained that despite
encashing several of the post dated cheques handed over to Arti in terms of
the order dated January 31, 2022, she has failed, neglected and refused to
vacate the tenanted premises. It was contended on behalf of Arti that in her
understanding the order requiring her to vacate the tenanted premises
pertained to only the 2nd floor of the building in question and did not
encompass the portion in her occupation on the 4th floor of the building.
19. The learned Judge passed the impugned order observing, inter alia as
follows:-
"It is evident from observations galore in the order under contempt
that the tenor thereof was that the alleged contemnors should,
upon receiving the amount of money directed to be paid by the
petitioner, vacate the entire building, i.e., the portions thereof
which are in their accommodation, and hand over the same
peacefully to the present petitioner. Thereafter, upon completion
of the construction of the new building after demolition of the
existing building, including all the floors thereof, the petitioner
shall hand over accommodation to the alleged contemnors in the
new building commensurate with the previous accommodation of
the alleged contemnors. As such, it is evident from the materials
on record that the alleged contemnors are deliberately protracting
the matter on one frivolous pretext after the other, thereby taking
advantage of the payments made by the petitioner, at least a major
portion thereof, but thereafter resiling to honour their part of the
commitment of vacating the premises in favour of the petitioner.
Such conduct on the part of the alleged contemnors borders on
contempt and there is no reason why the petitioner (sic) shall not
be committed for deliberate and willful violation of the Court's
order. However, since contempt is an extreme measure, as a last
chance to the alleged contemnors, an opportunity is given to the
alleged contemnors to hand over the entire premises i.e., the entire
portion of the same at 138, Utkal Moni Gopa Bandh Sarani,
Kolkata - 700007 under their occupation, in terms of the order
dated October 19, 2021.
In the event such possession is handed over by the alleged
contemnors to the petitioner and/or their men and agents before
the next returnable date, the deliberate contumacious act of the
alleged contemnors might be considered with lenience. However,
it is made clear that in the event the alleged contemnors violate the
order repeatedly, there will be no other option left before this
Court but to take appropriate measures for contempt of Court.
The matter shall next be enlisted on June 21, 2022 for passing
further orders, when learned Counsel shall intimate the Court as
regards whether the order of the Court has been complied with by
the alleged contemnors in the meantime or not."
20. We completely endorse the view of the learned Single Judge. It is
obvious that having received substantial benefits in the form of money from
Anndata and/or on its behalf, in terms of Court's order, Arti is now trying to
resile from her obligation to vacate the entire tenanted portion which she
occupies in the building in question, both on the 2nd floor and the 4th floor.
21. We are not impressed with any of the grounds enumerated in the
Memorandum of Appeal which are all flimsy and frivolous.
22. It was submitted before us on behalf of Arti that she was under the
bona fide impression that under the order dated January 31, 2022, she was
required to vacate only the 2nd floor portion in her occupation and not the 4th
floor portion. We find this difficult to believe. The arrangement delineated
by the learned Single Judge in the order dated January 31, 2022, leaves no
room for such confusion. There is no ambiguity or lack of clarity in the
order. In any event, now that the learned Judge has sufficiently clarified the
position in the order impugned in this appeal, and that the learned Judge has
given a last opportunity to Arti to comply with the order dated January 31,
2022, and to honour her obligation under the said order, we find no reason to
interfere with the order of the learned Single Judge. We have doubt about the
bona fides of the appellant because of her conduct.
23. In the result both the appeals and the connected applications are
dismissed as being completely meritless and frivolous with costs assessed at
Rs. 10,000/- to be paid by the appellant to the West Bengal State Legal
Services Authority, within a fortnight from date. A copy of this order shall
be forwarded by the Department to the member Secretary of West Bengal
State Legal Services Authority who will draw to our attention failure, if any,
on the part of the appellant to pay the costs as directed above.
24. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
I agree.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
