Anandlok Welfare Association & ... vs Kolkata Municipal Corporation & ...
2023 Latest Caselaw 2120 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               Appellate Side

Present :-    Hon'ble Justice Amrita Sinha

                               W.P.A. 21069 of 2021
                               IA No. CAN 1 of 2022

                          Anandlok Welfare Association & Anr.
                                         Vs.
                          Kolkata Municipal Corporation & Ors.

For the writ petitioner        :-    Mr. Surajit Nath Mitra, Sr. Adv.
                                     Mr. Nirmalya Dasgupta, Adv.
                                     Mr. R.L. Mitra, Adv.
                                     Mr. Amartya Basu, Adv.

For the respondent nos.8       :-    Mr. Abhrajit Mitra, Sr. Adv.
&9                                   Mr. Sarvapriya Mukherjee, Adv.
                                     Mr. A.K. Roy, Adv.
                                     Mr. Surajit Biswas, Adv.
                                     Mr. Arijeet Bera, Adv.
                                     Ms. A. Khan, Adv.

For the KMC                    :-    Mr. Biswajit Mukherjee, Adv.
                                     Mr. Swapan Kumar Debnath, Adv.

Hearing concluded on           :-    30.03.2023

Judgment on                    :-    30.03.2023



Amrita Sinha, J.

Affidavit-of-service and the supplementary affidavit filed in Court today is

taken on record.

Though there are several prayers in the writ petition, prayer 'b' has been

pressed for issuance of writ of mandamus to cancel, rescind and withdraw the

illegal sanction of the building plan in respect of the inseparable part and

parcel of 700 square meters of mandatory open space at premises no. 227,

Acharya Jagadish Chandra Bose Road, Kolkata-700020.

The entire dispute revolves around this 700 square meters which was

vacant earlier and is now being constructed upon. At one point of time, the

premises no. 227 was a big plot of land owned by one Jenny Christensen. The

said owner sold a part of the land to the petitioners and a portion measuring

about 700 square meters was left out of the conveyance. The same was in view

of the embargo imposed under the Urban Land Ceiling Act. A construction was

raised on the portion which was sold as per the plan sanctioned by the Kolkata

Municipal Corporation in the year 1986. The vacant unsold 700 square meters

was used as car parking place.

Dispute arose when Jenny Christensen sold the balance 700 square

meters in favour of City Enclave Pvt. Ltd. being the respondent no. 8 herein.

After the sale of the 700 square meters of land, the Corporation

separated the mother premises and allotted separate premises number to it,

i.e, 227A, Acharya Jagadish Chandra Bose Road.

City Enclave approached the Corporation for sanction of building plan for

making construction over the separated 700 square meters and the same was

sanctioned in March 2020.

The petitioners claim that the said 700 square meters of land is an

inseparable part and parcel of the erstwhile 227, Acharya Jagadish Chandra

Bose Road. The same cannot be sold off separately. The plan which was

sanctioned for making construction in the year 1986, took into consideration

the vacant 700 square meters of land and the same was shown as car parking

space in the plan.

As City Enclave, relying upon the sanctioned plan, is taking steps to

raise construction, the petitioners challenge the same and submit that all the

essential services connection are passing underneath the said land. If the

construction is permitted to be carried out, all the essential services of the

petitioners are likely to be disturbed.

Instances have been shown before this Court that because of the digging

of the land, the water connection to the premises of the petitioners got severed

and the petitioners had to remain without water for a considerable period of

time. It was only after the petitioners approached this Court and order was

passed for repairing the water connection that the water supply to the premises

of the petitioners stood restored.

The action of the Kolkata Municipal Corporation in sanctioning the

building plan in favour of the private respondents has been challenged.

Learned counsel representing the present owner of the 700 square

meters of land submits that the petitioners do not have any right, title and

interest over the subject property as no conveyance was registered in respect of

the said portion.

It has been submitted that the petitioners have themselves admitted in

paragraph 43 of the writ petition that the said 700 square meters was left as

open space at the time of execution and registration of deed.

As the petitioners do not have any right, title and interest over the said

portion, accordingly, the petitioners do not have any right to object the rightful

owner to raise construction over the said plot of land on the basis of the plan

sanctioned by the Kolkata Municipal Corporation.

It has been submitted that the petitioners failed to obtain any order in

the earlier writ petitions challenging the act of the Corporation in mutating the

property in favour of the private respondents and allotting separate Assessee

number in favour of the present owner.

It has been submitted that the plan which is being relied upon by the

petitioners showing the car parking space, has been held to be a fabricated

one. In this connection, reference has been made to the judgment dated 24th

February, 2022 passed by a co-ordinate bench of this Court in WPO 992 of

2015 with WPO 990 of 2016 with WPO 492 of 2017 and the connected

applications (Anandlok Welfare Association & Anr. -vs- Kolkata Municipal

Corporation & ors.).

The Hon'ble Court in the said judgment mentions that the petitioners

failed to produce any purchase deed which would demonstrate that the

premises was shown to be included in any portion of the building plan. The

building plan relied upon by the petitioners was fabricated as the premises was

at the relevant time under the control of the Urban Land Ceiling authorities.

Reference has been made to several communications made to the

Kolkata Municipal Corporation by the erstwhile owner and the present owner

seeking permission for shifting the existing water line of the petitioners.

It has been submitted that though request was made before the

Corporation in July 2022 followed by reminder in August 2022 but the

Corporation has not yet permitted shifting of the water services.

Reference has also been made to the order dated 6th May, 2022 passed

by the Hon'ble Division Bench of this Court in IA No. GA 2 of 2022 in APO 28 of

2022 arising out of WPO 492 of 2017 (Anandlok Welfare Association & Anr. -

vs- Kolkata Municipal Corporation & Ors.).

It has been submitted that the present writ petition is an abuse of the

process of law. The petitioners do not have any right to maintain the writ

petition. Prayer has been made for dismissing the same.

Learned advocate appearing for the Kolkata Municipal Corporation

submits that the title of the petitioners in respect of the 700 square meters of

the vacant land is unclear. Several writ petitions in respect of the selfsame

property are pending consideration before this Court.

The plan which has been relied upon by the petitioners indicates that the

water services connection is going through the drive way and not through the

vacant 700 square meters.

From the submissions made on behalf of all the parties, it appears that

there is a dispute raised with regard to the ownership of the 700 square meters

of vacant land. The petitioners have not been able to produce document/title

deed to show that the aforesaid 700 square meters were at all sold to the

petitioners or were included in the schedule of the deed of conveyance of the

petitioners.

Prima facie, it appears that the 700 square meters was separate and left

out from the portion of the land sold to the petitioners.

The petitioners rely upon an affidavit affirmed by the Kolkata Municipal

Corporation in an earlier writ petition in the year 2003 to show that the vacant

portion was shown in the sanctioned plan pursuant to which construction was

raised by the petitioners.

The Court fails to appreciate as to how the portion which was never sold

to a party, could be shown as the vacant land for permitting sanction for

raising construction thereon. An owner cannot lay claim over the contagious

land in the absence of a valid title deed. Till the land is legally sold in favour of

the purchaser, the same cannot be treated as the property of the purchaser for

obtaining sanction for raising construction over the property which was sold.

The owner of the land who retained the 700 square meters later on sold

the same in favour of the private respondents. Kolkata Municipal Corporation

mutated the land in favour of the private respondents and allotted separate

Assessee number and thereafter, sanctioned plan for raising construction

thereon.

Till the petitioners are able to obtain any order from the competent court

declaring their right in respect of the said 700 square meters of land, it will not

be proper to restrain the private respondents from raising construction thereon

on the basis of a plan sanctioned by the Kolkata Municipal Corporation. It will

also be highly improper to direct the Corporation to invoke provision of Section

397 of the KMC Act, 1980 as the facts of this case does not warrant the same.

The petitioners have not been able to make out a case that there has either

been fraud or misrepresentation at the instance of the private respondents at

the time of obtaining sanction for raising construction over the 700 square

meters of land.

The private respondents, however, cannot and ought not to disturb the

essential services which the petitioners are enjoying for years together and

which are running underneath the land where the construction is supposed to

be made.

Learned counsel appearing for the private respondents have made oral

undertaking before the Court that the construction will be made in such a

manner that the essential services of the petitioners will not be disturbed.

The private respondents are restrained from making any construction

that will disturb or obstruct the essential services enjoyed by the petitioners

underneath the presently vacant 700 square meters of land till the same are

shifted in accordance with law.

The private respondents will be at liberty to seek shifting of the existing

service connections of the petitioners by making appropriate application before

the Kolkata Municipal Corporation.

In view of the above, the Court refrains from exercising jurisdiction in the

matter.

The writ petition, accordingly, fails and is hereby dismissed. The

connected application is also dismissed.

Since the writ petition is disposed of prior to the affidavits being filed, the

allegations made therein are deemed not to have been admitted by the

respondents.

Urgent certified photo copy of this judgment, if applied for, be supplied to

the parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)