Kunal Kumar Adhikary & Anr vs The Kolkata Municipal ...
2023 Latest Caselaw 6229 Cal

Form No. J(2)

               IN THE HIGH COURT AT CALCUTTA
              CONSTITUTIONAL WRIT JURISDICTION
                       APPELLATE SIDE


Present:
The Hon'ble Justice Saugata Bhattacharyya

                      W.P.A. 13923 of 2018


                  Kunal Kumar Adhikary & Anr.
                              -vs-
          The Kolkata Municipal Corporation & Ors.



For the Petitioners         : Mr. P. P. Roy,
                              Mr. R. K. Dubey


For the respondent no.12    : Mr. Chayan Gupta,

Mr. Sagnik Majumdar, Ms. Shrya Ghosh Dastidar

For the KMC : Mr. Alak Ghosh, Mr. Fazlul Haque

Hearing concluded on : 18.09.2023

Judgment on: 18.09.2023

Saugata Bhattacharyya, J.:

In the writ petition the order of the Municipal

Commissioner communicated vide writing dated 15th

March, 2018 of the Executive Engineer (Building) Borough-

VIII is under challenge.

Mr. Roy, learned advocate representing the

petitioners claiming to be the Shebaits of the trust property

situates at 36K, Mahanirban Road under Ward No. 85

within the jurisdiction of Kolkata Municipal Corporation

has alleged that the sanctioned plan obtained by the

private respondents dated 3rd July, 2013 was the result of

practising fraud and misrepresentation therefore under

Section 397 of the Kolkata Municipal Corporation Act,

1980 (hereinafter referred to as the "said Act of 1980") the

said sanctioned plan dated 3rd July, 2013 needs to be set

aside.

In support of such contention of the petitioners

attention of this Court has been drawn to the declaration

which is annexed to the affidavit-in-reply used against the

affidavit-in-opposition filed on behalf of the respondent

nos. 5, 6, 7, 10 & 11 in order to urge before this Court that

in spite of pendency of Misc. Case No.1259 of 2010 which

was preferred by the petitioners against the order dated

30th April, 2009 passed in Misc. Case No.129 of 2008 and

other civil proceedings private respondents were permitted

to make construction of G+III storied building based on the

sanctioned plan accorded on 3rd July, 2013.

According to the petitioners while making

application seeking sanctioned plan before the concerned

authority of KMC it was declared by the private

respondents that no civil or criminal proceeding was

pending in connection with the aforesaid premises and the

premises is free from all encumbrances which should

attract invocation of the provisions as contained under

Section 397 of the KMC Act of 1980 since according to the

petitioners this is misrepresentation and fraud on the part

of the private respondents in obtaining sanctioned plan.

It has been submitted that the order passed in

Misc. Case No. 129 of 2008 dated 30th April, 2009 was

recalled vide order dated 20th December, 2016 passed in

Misc. Case No.1259 of 2010 therefore the benefit of the

order dated 30th April, 2009 cannot be extended in favour

of the private respondents on the principle enunciated by

the Apex Court in the judgment, reported in 2022 SCC

OnLine SC 372 (Mekha Ram & Ors. -vs- State of

Rajasthan & Ors.) wherein it has been held no one can be

permitted to take the benefit of wrong order passed by the

Court which has been subsequently set aside by the Higher

Forum/Court and as per settle proposition of law no

authority should be prejudiced because of the order of the

Court.

The sum and substance of the submissions made

on behalf of the petitioners based on the order dated 20th

December, 2016 passed by the learned District Judge at

Alipore, South 24 Parganas whereby the order dated 30th

April, 2009 passed in Misc. Case No.129 of 2008 was

recalled and during pendency of the Misc. Case being 1259

of 2010 the concerned authority of KMC sanctioned plan in

favour of the private respondents on the basis of a

declaration made in the application seeking grant of

sanctioned plan that no legal proceeding was pending

before the Court.

Mr. Gupta, learned advocate representing the

respondent no.12 at the threshold has questioned the

locus of the petitioners based on the statements made in

paragraphs 2, 3 and 4 of the writ petition. According to the

respondent no.12 one Surendra Nath Das was the owner of

the property in question having two daughters, Prabhabavi

Adhikary and Binapani Dasi and at the first instance said

Surendra Nath Das executed an Arpannama dated 8th

August, 1959 B.S. whereby aforesaid two daughters were

made trustees along with others but subsequently on 16th

May 1962 another Arpannama was executed by said

Surendra Nath Das when he was suffering from

Alzheimer's disease whereby Binapani Dasi was inducted

as trustee excluding Prabhabavi Adhikary and the

petitioners are the descendants of Prabhabavi Adhikary. It

has also been submitted relying upon the statements made

in paragraphs 2, 3 & 4 of the writ petition that after

executing Arpannama on 16th May, 1962

contemporaneously no steps were taken by the petitioners

being the descendants of Prabhabavi Adhikary seeking

necessary declaration in order to establish their right as

trustees.

Another plank of submission made on behalf of the

respondent no.12 is based on the application/complaint

lodged by the petitioners before the concerned authority of

KMC dated 18th January, 2017 for cancellation of the

sanctioned plan dated 3rd July, 2013 on the alleged ground

of fraud and misrepresentation in terms of Section 397 of

the said Act of 1980. According to the respondent no.12

apart from pendency of Misc. case no.1259 of 2010 no

other ground has been taken by the petitioners before the

concerned authority of KMC in order to deliberate on the

point of misrepresentation and fraud for demonstrating

how provisions under Section 397 is attracted in the

present case.

Lastly it has been submitted on behalf of the

respondent no.12 that albeit an order was passed on 30th

April, 2009 on the premise that for the benefit and welfare

of the deity the private respondents/managing trustee

should be permitted to develop the property in question

and accordingly permission was accorded by the Court to

develop the said property but on the Misc. Case being 1259

of 2010 vide order dated 20th December, 2016 the Court

recalled the previous order dated 30th April, 2009 since it

was found that the concerned Estate being a private

Debuttar Estate, it's shebaits are the only persons to

manage the trust and deity and to take proper decision on

the alienation of the trust property if at all required as a

legal necessity for the welfare of the deity and it was also

observed that the Court has no role to play. Such

observation, as it has been contended on behalf of the

respondent no.12, was made based on the judgment dated

20th November, 2009 passed by a coordinate Bench on a

writ petition being WPA 9660 of 2006 (Smt. Shakuntala

Devi Dalmia & Anr -vs- Howrah Municipal Corporation

& Ors.).

According to the respondent no.12 in view of the

law laid down by the coordinate Bench in Smt.

Shakuntala Devi (supra) there is no necessity to obtain

permission from Court for developing the aforesaid trust

property since the trust in question is a private Debuttar

Estate. Therefore, recalling of the order dated 30th April,

2009 vide subsequent order dated 20th December, 2016 is

of no significance in view of law laid down in Smt.

Shakuntala Devi (supra).

The Kolkata Municipal Corporation is represented

by learned advocates who has made an endeavour to

defend the decision of the Municipal Commissioner which

has been communicated vide writing dated 15th March,

2018 of the Executive Engineer (Building) Borough-VIII on

the score that whatever were available before the

concerned authority of KMC, taking note of the same

decision was taken pursuant to the order passed by the

coordinate Bench dated 26th October, 2017 and on the date

of according sanctioned plan i.e. 3rd July, 2013 the order

dated 30th April, 2009 was subsisting and accordingly, the

decision was taken by the concerned authority of KMC.

Having considered the submissions made on behalf

of the parties and on perusal of the relevant materials

available on record, this Court is tasked to scrutinise

whether order dated 20th December, 2016 recalling the

previous order dated 30th April, 2009 requires fresh

consideration by the concerned authority of KMC in the

context of the observations made by the Court in the said

order dated 20th December, 2016 that in case of private

Debuttar Estate it's shebaits are the only persons to take

decision on alienation of the Debuttar Estate; it is found

that it is not a case of recalling simpliciter of the impugned

order dated 30th April, 2009 by the Learned District Judge

but certain relevant observations have been made by the

Court which makes the issue clear and also facilitates this

Court to adjudicate the issue involved in this writ petition.

At this stage this Court finds it apt to quote the

observations made by the coordinate Bench in Smt.

Shakuntala Devi (supra) below:-

"There are two kinds of religious trusts both of which are ancient and highly popular in Hindu society. One of them is known as debutter or endowment in favour of an idol, while the other can be described as mutt or marham, which means a religious establishment endowed for the benefit of certain classes of ascetics or religious men belonging to particular sects or congregations. An idol is not an infant, it is a juristic person. A shebait is a mere manager, not the owner of the debutter property, the idol is the owner, but only in an ideal sense. There is always a human personality linked up with this ideal personality, and the shebait or manager of the deity must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property. There is no provision that obliges a shebait to take prior permission of any court for alienating a property owned by the deity, it is only that if the alienation is challenged at a future date, the alience, in spite of the order, will have to prove as a fact that there was legal necessity for the transfer or that he made enquiries and was reasonably satisfied that such necessity existed. A shebait is not a trustee in the proper sense of the word and the Indian Trusts Act, 1882 has no application to the case of a Hindu religious endowment. The court, therefore, has no jurisdiction to

grant an application by a shebait to sanction his transaction on the ground of necessity. (B.K. Mukherjea's The Hindu Law of Religious and Charitable Trusts, 5th ed. By A.C. Sen, paras. 4.1A, 6.15, 6.16, 6.38, 6.67 and 6.38)"

In view of the aforesaid decision of the coordinate

Bench in Smt. Shakuntala Devi (supra), it appears that

there was no necessity to obtain order dated 30th April,

2009 by instituting Misc. Case No.129 of 2008 so far

Shebaits are concerned. In absence of order dated 30th

April, 2009 it was open to the Shebaits to apply before the

concerned authority of KMC for according sanctioned plan

since the trust was found to be a private Debuttar Estate.

There are counter allegations so far petitioners and

private respondents are concerned with regard to their

status as Shebaits in connection with the aforesaid

Debuttar Estate and Court finds it not fit in the present

proceeding to make any observation with regard to

determination of inter se right of the petitioners and private

respondents in respect of the said Debuttar Estate. Court

needs to appraise legality of the order passed by the

concerned authority of KMC which has been

communicated vide writing dated 15th March, 2018.

It is true that the private respondents while

submitting application seeking grant of sanctioned plan

before the concerned authority of KMC made a declaration

to the effect that no legal proceeding was pending in

connection with the said Debuttar Estate in question but

in the context of the right of the private respondents being

Shebait of private Debuttar Estate as decided in the order

dated 20th December, 2016 and on the anvil of the decision

taken by the coordinate Bench in Smt. Shakuntala Devi

(supra) it is found that the private respondents could have

approached the concerned authority of KMC even in

absence of the order dated 30th April, 2009. There is

nothing on record which goes to show that as on date

petitioners though have claimed to be Shebaits of the

aforesaid Debuttar Estate, they can function and act as

Shebaits on the basis of a document/instrument or

declaration made by the competent Court of law. Therefore

the law laid down in Mekha Ram (supra) does not come in

aid of the petitioners.

Since in terms of the sanctioned plan dated 3rd

July, 2013 G+III storied building has already been

constructed, at this stage the Court is not inclined to

interfere with the decision which has been communicated

vide writing dated 15th March, 2018.

Accordingly, the writ petition stands dismissed.

The compilation of documents filed on behalf of

respondent no.12 is taken on record.

However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the learned Advocates for the

parties on the usual undertakings.

(Saugata Bhattacharyya, J.)

13/Ct.15 rkd