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Judgment
Ashim Kumar Banerjee, J.—The pages and parties referred to hereinafter would relate to FMA No. 244 of 2009 and the Paper Book filed in the said proceeding.
The district town of Bankura is under Bankura Municipality. At Machantala in Bankura town there exists a mosque which is being used by the members of the minority community residing at Bankura town for religious purpose. From the photographs disclosed in the proceeding it appears that there had been further construction in the said mosque, which had no sanction from the Municipality, although the law required such permission to be taken. The parties before us admitted that such construction was totally illegal in absence of appropriate sanction being obtained from the Municipality being the prescribed authority under the Bengal Municipal Act. The Municipality, however, did not take any step against the said mosque.
The respondent No. 1 and 2 (hereinafter referred to as the Dey respondents) were the owners of the adjacent premises being plot No. 804. They applied for sanction for construction of a building on the said land in question. The then Chairman of the Municipality sanctioned it as appears from the record. It was initially two storeyed. The said respondents constructed further two floors being the second and the third floor.
The dispute started when Dey respondents started constructing the building deviating from the original plan and that too, by violating the basic requirements under the building Rules.
A group of local residents belonging to the minority community made grievance as against such illegal construction and made complaint with the Municipality. The Municipality took no step either against the mosque or against Dey respondents in respect of the respective illegal constructions carried on by them.
It further appears from the pleadings as well as the rival contentions that the plot No. 804 was initially required to be used as Mehaman Khana (Guest Room) being a part of the mosque. The said property was transferred in 1967 in favour of the predecessor of Dey respondents. According to Dey respondents their predecessor filed an eviction suit in 1967 against one Gairam Pal who was running a Hotel on the said plot in question having wooden and asbestos structure on the same. Ultimately, the tenant was evicted and they got possession. The Chairman sanctioned a building plan on October 13, 2003. The Municipality on May 2, 2005 regularized unauthorised construction made by Dey respondents at the front side of the building by accepting fine. On May 2, 2005 the Municipality also sanctioned the plan for second and third floor. Initially there had been various criminal litigations initiated against the husband of the respondent No. 1 on the issue. According to Dey respondents, all those litigations were futile. In 2006 the appellants approached the Block Development Officer on the allegation that there had been an encroachment. They could not succeed.
In this backdrop the present spate of litigations started. On July 28, 2006 the appellants made a complaint before the Municipality alleging that there had been violation of the Municipal Laws. The learned single Judge by judgment and order dated November 6, 2006 directed the Municipality to dispose of the complaint by a speaking order after inspection being conducted at the locale, if required. Dey respondents were also restrained from making construction so long the reasoned order was not passed.
The Chairman of the Municipality, upon consideration passed a reasoned order on April 24, 2007 appearing at page 77-79 of the Paper Book. The Chairperson observed that at her direction Dey respondents submitted modified plan which was sanctioned by the Chairperson. Chairperson, upon perusal of the report of the overseer observed that no illegality had been done by the Dey respondents. The Chairperson gave certain directions which are as follows:
i) Dey respondents would maintain six feet wide space from the ground floor up to the sky level on the extreme eastern side of the building being extreme western side of the mosque.
ii) Both parties would maintain six feet wide space for all purpose.
iii) No alteration would be allowed at any time.
iv) Dey respondents would not keep any window or door on their eastern wall towards mosque.
v) The RCC slab projected on the eastern side of the building would be brought down.
The members of the minority community filed a Title Suit being T.S. No. 1021 of 2006 before the Civil Court inter alia for a declaration that the plaintiffs therein were the lawful owners and the title holders of the scheduled property and Dey respondents were making illegal construction by encroaching upon a portion of plot No. 805. Application for injunction was dismissed on contest.
The appellants filed their second writ petition challenging the reasoned order of the Municipality inter alia on the ground that they were not heard. Moreover modified plan was submitted behind their back. No copy was served upon them. The learned single Judge quashed the order and directed consideration afresh upon hearing the rival contentions. While doing so, the learned single judge observed "it shall be open to the parties to agitate all points before the Chairman...." The matter was again heard by the Chairperson. At the time of hearing the appellants filed a written notes on arguments wherein they raised the plea of illegality being committed by Dey respondents on the other sides of the building which had no nexus with the mosque. All possible objections with regard to the construction were taken in the written notes of argument. The Chairperson decided to make a spot enquiry. The engineers of the Municipality accordingly visited the spot and took measurement of the building wherefrom it appeared that on the front side of the building two feet five inches open space were kept at the ground floor level and thereafter no open space was left by Dey respondents. The engineers were, however, satisfied on the modifications done by Dey respondents of the eastern side which were pointed out by the Municipality earlier. The engineers objected to the cantilever on the eastern side from the first floor level reducing the gap from four feet to two feet. It was also pointed out that there was no space left on the western side of the building. Moreover no set back in the front side as also in eastern and western side was maintained. The Chairperson observed that since illegal construction made by the mosque was not the subject matter, no opinion was expressed. The Chairperson observed that there was no violation on the backside and sufficient space was left out. She directed no further construction to be made in the third floor and they should maintain four feet wide space on the eastern side up to the first floor and six feet wide space from the subsequent floors to eastern and western side.
Dey respondents challenged the order of the Chairperson dated July 18, 2007 by filing a writ petition. The learned single Judge by judgment and order dated July 18, 2008 appearing at pages 164-170 of the Paper Book disposed of the writ petition by giving the following directions:
i) Dey respondents must strictly maintain the side open space on the eastern side as required in law.
ii) They must demolish the extension over the beams on the eastern side.
iii) They would not fix any door or window on the eastern side.
Dey respondents accepted the said order and complied with the directions with His Lordship. In course of hearing Mr. Dinabandhu Chowdhury, learned Counsel appearing for the appellants also did not make any grievance with regard to the eastern side of the said building in question being the western side of the mosque. Hence, we can safely conclude that there is peace on the western front of the mosque.
The appellants were, however, aggrieved as His Lordship did not entertain their objections with regard to the front and western side of the building in question. His Lordship held that they did not have locus standi to raise such objection.
Hence, this appeal by the appellants.
On perusal of the judgment and order impugned passed by His Lordship we find that the learned Judge doubted the locus standi of the appellants. His Lordship observed that the representation made by the appellants being the genesis of the dispute before the High Court related to the eastern side only. Moreover the appellants did not disclose as to how they were connected with the mosque. They did not even state that they worshipped at the mosque. It was also not their case that they were responsible for its management and supervision.
His Lordship observed that irregularities and illegalities, if any, in respect of other parts were not the subject matter of the litigation before the High Court as the dispute related to eastern side only. His Lordship recorded:
Learned advocate for private respondents submitted that if the petitioners do not fix any window and/or door on the eastern wall of the petitioner''s property at plot No. 804 and if the petitioners keep at least four feet side open space on the eastern side of the petitioner''s property, in that event, the said private respondents cannot have any ground for feeling aggrieved.
His Lordship ultimately observed that they did not have any locus standi to raise objection with regard to the other parts.
The other appeal being FMA No. 519 relates to a writ petition filed by another group inter alia asking for demolition of the construction in terms of the order dated July 18, 2007. The said writ petition was disposed of by another learned Judge by judgment and order dated February 12, 2009 when His Lordship dismissed the writ petition by imposing costs upon all the writ petitioners. His Lordship observed that the writ petitioners knowing that the order dated July 18, 2007 had been set aside subsequently by judgment and order dated July 18, 2008 misled this Court by concealing such fact. Hence this second appeal by the other group.
Mr. Dinabandhu Chowdhury learned Counsel appearing for the appellants took us to the factual matrix as recorded above. Mr. Chowdhury raised three issues -
i) locus standi
ii) alleged concession made by the learned Counsel and
iii) violation on the front and western side
While elaborating his argument on the first issue Mr. Chowdhury admitted that the genesis of this litigation was the complaint lodged by them before the Municipality. He took us to the complaint appearing at page 66-69 of the Paper Book and contended that they complained of the illegal construction at a point when they had not been given a copy of the sanctioned plan or the modified plan subsequently submitted to the Municipality by Dey respondents. The learned single Judge asked the Chairperson to consider the complaint. The Chairperson did not give personal hearing and did not consider all aspects. The learned single Judge in the second writ petition set aside the order of the Chairperson and directed her to consider the objection by granting liberty to the parties to raise ''all points'' before the Chairperson. Hence, the order of the learned single Judge in the second writ petition not only gave approval to the interference by the appellant but also their right to object to the other illegalities being the front side and the western side. He then referred to the written argument filed before the Chairperson wherein they raised objection on all sides. Hence, the learned single Judge in the third writ petition should not have decided otherwise on the locus standi issue.
On the second issue Mr. Chowdhury contended that even if the learned advocate made any concession before the learned single Judge such concession was only applicable to eastern side and not the other sides.
Mr. Chowdhury lastly contended that since they had locus standi as observed by the learned single Judge in the second writ petition and since the appellants had pointed out illegalities and irregularities through the written argument the Chairperson should not have taken a lenient view and in any event the learned single Judge could not have set aside the order of the Chairperson by directing regularization on certain conditions restricted only to eastern side of the premises in question.
In support of his contention Mr. Chowdhury relied upon two Apex Court decisions reported in State of Punjab (Now Haryana) and Others Vs. Amar Singh and Another, and Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others,
Supporting the appellant Mr. Suddhasatta Banerjee Learned Counsel appearing for Mutuwalli contended that the construction carried out by the mosque was only to withstand the old structure. The mosque did not carry out any further construction save and except putting four beams to support the existing structure. Mr. Banerjee further contended that since the Chairperson considered all aspects and passed a reasoned order the learned single Judge should not have upset the same. Mr. Banerjee lastly contended that law must take its own course and illegality committed by Dey respondents should not be approved and/or ignored by this Court.
Mr. Samiran Mondal, learned Counsel appearing for the Municipality contended that the original building plan was sanctioned by the then Chairman without consulting the engineers of the Municipality. He further contended that no open space had been kept on the western side and the passage shown on the western side was actually a Municipal road. He further contended that the construction on the front side was also illegal in absence of statutory space being left out.
Opposing the appeal Mr. Mrinal Kanti Das, learned senior counsel appearing for Dey respondents contended that since the appellants raised objection on behalf of the mosque and the Dey respondents accepted the verdict of His Lordship and complied with the direction of this Court with regard to the eastern side, the appellants could not have any further grievance at all and the appeal should be dismissed on that score. With regard to the western portion Mr. Das drew our attention to the Deed of Conveyance appearing at pages 50-58 of the Paper Book to show that they became the owner of the strip of land on the western side which was common with one Anil Nandy. He also showed us a photograph showing Iron Gate fitted on the western side. We also find from the sketch map that the said passage or road is common with Shri Anil Nandy.
Mr. Das tried to justify the construction on the front side. He could not give any plausible reason to satisfy us on that score. He, however, put emphasis on the finding of His Lordship on the locus standi issue. Mr. Das contended that once eastern side was taken care of by His Lordship and the grievance of the appellant was met, they could not have raised any objection with regard to the other parts. He also contended that the concession made by the learned lawyer quoted (Supra) sealed the scope of the appellants, if any, with regard to their objection on the front side or western side.
On the issue of the concession made by the learned Counsel appearing for the appellants before His Lordship, Mr. Das cited three decisions:
i) Rajander Narayan Raie and Anr. v. Bijai Govind Sing reported in 2 MIA 253
ii) State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another,
iii) Abdul Sathar Ibrahim Manik Vs. Union of India and others,
To support his contention on the illegal construction Mr. Das relied on the following decisions:
i) Purusottam Lalji and Others Vs. Ratan Lal Agarwalla and Others,
ii) Lalit Mohan Mitra and Others Vs. Samirendra Kumar Ghosh and Others,
iii) Rajatha Enterprises Vs. S.K. Sharma and Others,
On the issue of estoppel Mr. Das cited this Court''s decision reported in 1988 2 CHC 209 (Amalangsu Narayan Acharyya Chowdhury v. The Calcutta Municipal Corporation and Ors.)
After the order was passed by His Lordship the eastern side was taken care of. Hence, we do not wish to go in detail on that score. The Chairperson observed that there had been sufficient space left on the back side. That leaves us with two aspects:
i) Are the appellants entitled to raise objection with regard to front and western side?
ii) If so, what would be the consequence?
On the first issue we have no hesitation to support the judgment of the learned single Judge. The appellants were members of the minority community. They objected to the construction made on the eastern side of the building adjacent to mosque as would appear from their complaint. The learned single Judge, while disposing the second writ petition directed consideration of the said complaint by giving personal hearing. The words "all points" referred to in His Lordship''s decision were restricted to the complaint made by the appellants. The written submission filed subsequent to the complaint could not open other controversy and, in any way, could not widen the scope of the direction of His Lordship.
If we look back we would see that the appellants raised a written complaint. Municipality did not take any step. Appellants approached the learned single Judge. His Lordship directed consideration by the Municipality. Municipality considered the matter without giving hearing to the parties. In this backdrop the learned single Judge set aside the order of the Chairperson and directed reconsideration. While doing so, His Lordship gave liberty to raise "all points". In no stretch of imagination this Court widened the scope beyond the original complaint. The learned Judge was right in observing so. The concession made by the learned advocate was clearly recorded by His Lordship. On perusal of the grounds we also do not find any grievance made by the appellants to the effect that it was not properly recorded by His Lordship. Mr. Chowdhury in his usual fairness did not make any complain on that score. His explanation to the effect that such concession was only with regard to the eastern part is not at all convincing. Hence, the learned Judge was right in observing that the appellants did not have any locus standi to raise objection with regard to the other part.
The decisions cited by Mr. Chowdhury on this score also do not support his contention.
In case of State of Punjab (Supra) the controversy relates to a land which did not form part of reserved or permissible area within the meaning of Punjab Security of Land Tenures Act, 1953. Considering such controversy the Apex Court observed inter alia that the public policy cannot be outwitted by consent orders. We do not find any scope of application of this decision in the instant case.
In the case of K. Ramadas Shenoy (Supra), the Apex Court observed "The High Court was not correct in holding that they impeached resolution sanctioning plan for conversion of building into a cinema was in violation of Town Planning Scheme. Yet it could not be disturbed because respondent No. 3 is likely to have spent money. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel." This judgment also does not strictly support the appellants on the issue of locus standi.
We thus hold that the appellants did not have any locus standi to raise any objection with regard to the other parts of the building. The present litigation was not a public interest litigation.
They raised objection before the Chairperson. The Municipality considered the issue and ultimately the reasoned order merged in the order of the learned single Judge. The appellants also made concession before the learned single Judge and they cannot distract from the same. They are bound by the concession made before His Lordship. We, thus hold that the appellants could not have any grievance in the appeal more so when the direction for part demolition on the eastern side had already been carried out by Dey respondents.
The learned single Judge while rejecting the contentions of the appellant observed as follows:
With regard to the construction made by the petitioners on the other parts and/or sides of the building in question at plot No. 804, this Court is not making any observation on the same. It shall be for the respondents/municipal authorities to think and act, if necessary, independently, if they feel so....
It is for the respondents/Municipal Authorities to take necessary action, if so required under the law. We affirm such observation.
The appeals are disposed of without any further order as to costs.
Urgent xerox certified copy would be given to the parties, if applied for.
Prasenjit Mandal, J.
I agree.