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Judgment
Debangsu Basak, J.
The writ petitioners seek a direction on the respondent Nos. 1, 2 and 3 to demolish the allegedly illegal construction at Premises No. 6A, Hastings Park Road, Kolkata - 700027.
Learned Counsel for the writ petitioners contend that, persons not competent to apply for sanction had obtained a sanction plan for construction at the rear portion of Premise Nos. 31, Judges Court Road, Alipore, Kolkata - 700027 and 6A, Hastings Park Road, Kolkata - 700027. The promoters had applied for sanction. According to the writ petitioners, the promoters could not have applied for sanction in view of the terms of settlement filed before the Hon''ble Supreme Court of India. The writ petitioners were not parties to such terms of settlement. In view of the provisions of the West Bengal Apartment Ownership Act, 1972, the promoter could not have applied for sanction. Reference is made to 2005 Volume 3 Calcutta Law Times page 67 (Basanta Dutta and Ors. v. State of West Bengal and Ors.) in support of the contention that a promoter does not have a right to apply for sanction unless such promoter is the owner. In any event it is contended that, the construction at the disputed premises is in deviation of the sanctioned building plan. Learned Counsel for the writ petitioners contends that, the ninety flat owners of the front of the disputed premises are the owners.
The writ petition is opposed by the respondent Nos. 4 and 5. On behalf of the respondent No. 4 it is contended that an extension of the sanctioned building plan had been granted on May 17, 2012. The building constructed is in accordance with such sanctioned building plan. It is also contended that the disputes between the parties in the writ petition is a private dispute. In respect of the very same disputes two suits are pending adjudication before the Civil Courts. Referring to the judgment and order dated December 3, 2013 passed in W.P. No. 1009 of 2013 it is contended that, a similar writ petition seeking an order of demolition of the alleged illegal construction at Premises No. 6A, Hastings Park Road, Kolkata - 700027 was dismissed. So far as the two suits are concerned, it is contended that, one suit being Title Suit No. 100 of 1996 is a suit filed by the association of persons of the building in which the writ petitioners have their flat. Same relief has been prayed with regard to the alleged illegal construction in the present writ petition as that of the reliefs sought for in such title suit. The second suit relating to the same disputes as that involved in the present writ petition is Title Suit No. 815 of 2013. Title Suit No. 100 of 1996 is pending adjudication at Alipore. It is contended that, the writ petitioners are guilty of suppression of material facts. The writ petitioners had made an application before the Supreme Court seeking leave to intervene in the proceedings in which the compromise was recorded. The association had made an application before the Hon''ble Supreme Court of India. These facts have been suppressed by the writ petitioners.
On behalf of the respondent No. 5 it is contended that the writ petitioners are canvassing the same ground as that of the review petition made before the Hon''ble Supreme Court of India.
The Corporation authorities are represented. It is contended on behalf of the Corporation authorities that they had extended the validity period of the sanctioned building plan in accordance with law.
I have considered the rival contentions of the parties and the materials made available on record.
The present writ petition relates to a building named ''Rajtarang''. ''Rajtarang'' is one of the three multistoried buildings at Premises No. 6, Hastings Park Road, Kolkata - 700027. These buildings by the name of ''Rajhans'', ''Rajshree'' and ''Rajtarang'' were to be constructed at the said premises. Two buildings out of the three namely, ''Rajhans'' and ''Rajshree'' were completed. The flats and/or units of such two buildings were sold to diverse parties. The third building ''Rajtarang'' was erected after the agreement for sale had been entered into with the purchaser of the flats and/or units of ''Rajhans'' and ''Rajshree''. The majority of the owners of the flats and/or units of the two buildings formed an association namely, Hanshree Apartments'' Owners Association. The writ petitioner herein claims not to be a member of such Owners Association. The writ petitioners and the Owners Association have claimed that the agreement for sale states the land on which ''Rajtarang'' would be constructed stand vested with the members of the association and/or flat owners and/or unit owners of ''Rajhans'' and ''Rajshree''. Consequently, for such reasons and for various other reasons the respondent No. 4 is not entitled to construct the ''Rajtarang'' building. It is also claimed that the sanctioned building plan in respect of the ''Rajtarang'' building had been illegally obtained. Both the writ petitioners and the owners association have claimed that all the flat owners of the two buildings are the joint owners of Premises No. 6A, Hastings Park Road, Kolkata-700027 in terms of the declaration filed by the respondent No. 4 before the competent authority under the provisions of the West Bengal Apartment Ownership Act, 1972 dated June 10, 1975. They have also claimed that the respondent No. 4 has no right, title and interest in respect of such land for the respondent No. 4 to raise ''Rajtarang'' building thereon.
Another person similarly situate as that of the present writ petitioners herein had filed a writ petition being W.P. No. 1009 of 2013 seeking the same reliefs as that of the present writ petition. Such writ petition was considered and disposed of by a judgment and order dated December 3, 2013. The judgment and order dated December 3, 2013 records the nature of relief sought for by the writ petitioner in W.P. No. 1009 of 2013 and the relief sought for in Title Suit No. 815 of 2013. The writ petition was not entertained having regard to the pendency of the suit claiming identical relief.
I find that the present writ petitioners are similarly situate as that of the writ petitioner of 1009 of 2013. The writ petitioners herein seek an order for demolition of the alleged illegal construction at Premises No. 6A, Hastings Park Road, Kolkata - 700027. Some of the prayers in this writ petition are as follows:-
"a) A Writ of and/or in the nature of Mandamus do issue commanding the respondent Nos. 1 to 3 to forthwith demolish the illegal construction at premises No. 6A, Hastings Park Road, Kolkata-700027;
b) A writ of or in the nature of Mandamus do issue commanding the respondent Nos. 1 to 3 to forthwith stop the illegal construction being done by the respondent No. 4 at the said premises at No. 6A, Hastings Park Road, Kolkata-700027;
c) A Writ of and/or in the nature of mandamus do issue commanding the respondent Nos. 1 to 3 to forthwith disclose and/or produce the sanctioned plan, if any, pertaining to the building "Rajtarang" at premises No. 6, Hastings Park Road, Kolkata-700027;
d) A Writ of and/or in the nature of Certiorari do issue calling upon the respondent Nos. 1 to 3 to transmit all records pertaining to sanction of plan, if any, in respect of the building "Rajtarang" at premises No. 6, Hastings Park Road, Kolkata-700027 such that conscionable may be done by quashing and/or setting aside the same;"
Some of the prayers in Title Suit No. 815 of 2013 are as follows:-
"a) Declaration that the petitioner has easement right and right of prescription over and in respect of the land, garden space situated at the back of the building known as "Rajhans" and "Rajshree" and vacant area where the defendant No. 1 is attempting to make construction thereby interfering with the right of the plaintiff;
b) Declaration that the defendant No. 1 subsequent to May 10, 1975 did not have any right, title or interest in respect of premises No. 6, Hastings Park Road, Alipore, Kolkata-700027 as also 59,040 square feet of land with structures demarcated by partition walls throughout;
c) The defendant No. 1 is bound to accept the Declaration dated May 10, 1975 and that each of the flat-owners has their right, title or interest in respect of the said property being premises No. 6, Hastings Park Road, Alipore, Kolkata-700027;
d) A decree for perpetual injunction restraining the defendant company, its men and agents or any persons acting on their behalf, from raising any construction in any portion of the premises No. 6, Hastings Park Road, Alipore, Kolkata-700027 or for that matter premises No. 31, Judges Court Road in respect of the demarcated area measuring about 4 bighas and odd fully described in the Schedule hereunder with reference to the Declaration dated May 10, 1975;
e) Decree for perpetual injunction restraining the defendant from interfering in any manner with the plaintiff''s right, title or interest in respect of the apartments, "Rajhans and Rajashree" and making any construction in any portion of the premises No. 6, Hastings Park Road, Alipore, Kolkata-700027, contrary to declaration of May 10, 1975;
f) Decree for mandatory injunction that if there be any construction made, the same may be demolished in respect of the premises allegedly named as "RAJTARANG";
Apart from the aforesaid suit another suit being Title Suit No. 100 of 1996 filed by the apartment owner association is also pending. The reliefs sought for in Title Suit No. 100 of 1996 are as follows:-
"a) Declaration that the plaintiff is entitled to an area of 4 Bighas of land out of 59,040 sq. ft. of area at No. 6, Hastings Park Road, Calcutta - 27 in terms of the declaration filed by the defendant before the Competent Authority dated 10.06.1975;
b) Declaration that the defendant has no right, title or interest in the said area of 4 Bighas of land in the said premises No. 6, Hastings Park Road, Calcutta in terms of the Declaration dated 10th May, 1975 filed by the defendant before the Competent Authority;
c) Permanent Injunction restraining the defendant Company its agent/servant/men and Contractor from raising any construction on the said premises No. premises No. 6, Hastings Park Road, Calcutta before demarcating the said area of 4 Bighas of land with reference to the declaration dated 10th May, 1975 by raising partition wall thereon;
d) Injunction restraining the defendant from interfering with in any manner with the plaintiff''s right, title and interest in the apartments Rajhans and Rajshree together with a common areas and facilities in the suit premises in terms of the declaration dated 10th May, 1975;
d-1) For decree for mandatory Injunction for demolition of the unauthorized and illegal constructions already made upto 2nd storey under the name "Rajtarang" by the defendant in the suit property and for removal of the materials therefrom failing which for its demolition and removal at the cost of the defendants.
e) Decree for all costs;
f) Decree for all other and further relief or reliefs as to which the plaintiff may be entitled to at law and equity."
The reliefs sought for in the three proceedings are similar. Since there are two suits pending with regard to the self-same relief as sought for in the present writ petition and since the writ petitioners herein are similarly situate as that of the W.P. No. 1009 of 2013, I am not inclined to exercise writ jurisdiction over the subject matter.
I clarify that I have not pronounced on the rival contentions of the parties with regard to the nature of transaction and the entitlement or the lack of it to undertake the same. None of the observations made herein should prejudice any of the parties to the two suits.
In such circumstance, W.P. No. 113 of 2014 is dismissed. No order as to costs.