Russel Appartment Society vs Hindusthan Auto Distributors Pvt. Ltd.

Altamas Kabir, J.—The writ Petitioner/Respondent No. 1 Hindusthan Auto Distributors Pvt. Ltd., a partnership firm, registered under the Indian Partnership Act, 1932, constructed a multi-storeyed building in a portion of premises, No. 12B Russell Street, Kolkata 700 016 and in the process entered into several transactions for sale of flats comprised in the said multi-storeyed building. From the facts as disclosed during the hearing of the stay application in this appeal, it is evident that the multistoreyed building has been constructed on a portion of premises No. 12B, Russell Street, and that certain other portions of the premises are lying vacant.

The owners of the respective flats in the multi-storeyed building have formed themselves into a Society, namely, the Russell Apartment Society, which is the Appellant, No. Tin this appeal and the Secretary of the Society is the Appellant No. 2.

The writ Petitioner/Respondent No. 1 appears to have attempted the repair and/or construction of a boundary wall along the common passage to the south of the multi-storeyed building and, as alleged, it was obstructed from making such repairs and/or construction of the boundary wall not only by the members of the Appellant-Society but also certain other persons referred to as anti-socials. On such obstruction being made, the writ Petitioner/Respondent No. 1 moved the Court of the learned Executive Magistrate on June 10, 2002, when a direction was given to the Officer-in-Charge, Shakespeare Sarani Police Station, to make an inquiry as to whether there was any apprehension of breach of the peace in the locality or not. The police was directed to see that in the meantime there was no breach of the peace. The Respondent-writ Petitioner also appears to have applied to the Calcutta Municipal Corporation on January 15, 2003, seeking permission to repair the wall which was alleged to have been damaged and/or broken so as to prevent any damage to human life. It appears that the said Respondent was informed by the concerned authorities of Calcutta Municipal Corporation that no sanction was required for the erection of a boundary wall upto 3 metres in height.

Thereafter, the writ Petitioner/Respondent No. 1 once again tried to repair and/or construct the boundary wall in question but was again prevented from doing so. According to the writ Petitioner/Respondent No. 1, complaints made to the Officer-in-Charge of the Shakespeare Sarani Police Station were ignored, and, ultimately, the writ Petitioner/Respondent No. 1 was compelled to move a writ petition before this Court, being W.P. No. 1905 of 2003, inter alia, praying for a direction upon the State and the State Respondents to discharge their statutory duties and also to restrain the Respondent No. 5, namely, the Appellant No. 2 in this appeal and his associates from causing any hindrance to the execution of the repair job of the boundary wall in question.

The writ application appears to have been moved upon notice to the Respondent no. 2 as will appear from the order dated September 19, 2003, passed by the learned Single Judge. It has been recorded in the said order that the registered cover sent to the Secretary of the Appellant-Society was returned with the postal mark ''refused''. Treating the same to be good service, the learned Single Judge after hearing the learned Counsel appearing for the writ Petitioner/Respondent No. 1 and the State Respondents and after considering the facts and circumstances of the case disposed of the writ petition by directing the Deputy Commissioner of Police (South) to provide adequate police assistance to the writ Petitioner/Respondent No. 1 for the purpose of repairing the broken wall at the premises in question. strictly in accordance with law.

Thereafter, on September 26, 2003; the said order appears to have been modified to the extent that the Deputy Commissioner of Police (South) was directed to provide adequate assistance to the writ Petitioner/Respondent No. 1 for the purpose of repairing and/or constructing the broken wall at the premises in question, A note of caution was included in the order to the effect that in the guise of construction of the boundary wall the police authorities were not to permit the writ Petitioner/ Respondent No. 1 to encroach upon any new area which did not belong to the writ Petitioner/Respondent No. 1.

Coming to learn of the first order dated September 19, 2003, upon the attempt of the writ Petitioner/Respondent No. 1 in trying to implement the said order, the Society preferred the instant appeal, being A.P.O.T, 575 of 2003, Since the Society was not a party In the writ proceedings, leave to file the appeal was prayed for and such leave was duly granted. In addition, leave was also given to the Secretary of the Society to be added as Appellant No. 2 in the appeal.

It may be indicated that when the stay application in the appeal was initially moved, the aforesaid fact appears to have escaped the notice of all concerned and an order was passed on the stay application on September 30, 2003, staying the operation of the order passed by the learned Single Judge on September 19, 2003. The said interim order of stay was confirmed on January 21, 2004, and liberty was given to the Appellant to file the paper books, out of Court within the time prescribed.'' The paper books having been filed, the matter was mentioned and the appeal as well as the stay application were taken up together for hearing.

Appearing in support of the appeal, Mr. Utpal Bose urged that the substance of the writ petition was essentially a dispute of a civil nature which the writ Court ought not to have gone into and at the first instance should have relegated the writ Petitioner/Respondent No. 1 to the Civil Court for setting such dispute.

Mr. Bose then urged that even though an attempt may have been made to serve notice upon the Appellant and the Secretary of the Society, the allegations as made in the writ petition do not appear to have been made against the Secretary individually but against various other persons who have been referred to in the cause title of the writ petition as being certain private Respondents who are anti-socials of the locality. Mr. Bose submitted that without due notice to such persons, directions as were given in the writ petition on September 19, 2003, or even thereafter, should not have been given.

Mr. Bose then urged that the subsequent order dated September 26, 2003, which was really an off-shoot of the order dated September 19, 2003, was made by the. learned Single Judge without notice at all to the Society,-particularly when the directions given in the first order of September 19, 2003, were substantially altered in that leave to effect repairs was converted into leave to construct the boundary wall in question. Mr. Bose contended that the members of the Appellant-Society had for long been parking their respective vehicles on the vacant plot of land beyond the common passage and that the writ Petitioner/Respondent No. 1 was really attempting to deprive the members of the Society form doing so by the erection of a new boundary wall which would virtually shut off access to the vacant plot of land lying to the south of the common passage.

Mr. Bose urged that the orders passed by the learned Single Judge were liable to be set aside and the parties should be relegated to the Civil Court for settlement of their disputes.

Appearing for the writ Petitioner/Respondent No. 1 Mr. Pradip Ghosh, learned senior counsel, urged that, inasmuch as, there was no dispute regarding ownership of the vacant land in question, the subject matter of the writ petition could not be said to be a matter involving a civil dispute", On the other hand, Mr. Ghosh contended that as would appear from various agreements entered into between the writ Petitioner/Respondent No. 1 and the members of the Appellant-Society and the various affidavits affirmed by them, the members of the Society had no right in the premises beyond what had been specified in the respective agreements In particular, Mr. Ghosh referred to certain provisions of the agreements spelt out in his Affidavit-in-Opposition to the stay application from which it would appear that specific stipulations have been included whereby the owners of the respective flats in the multi-storeyed building had agreed not to park their vehicles in any other portion of the premises and also in the disputed land.

Mr. Ghosh also urged that the prayer which had been made on behalf of the writ Petitioner/Respondent No. 1, both before the learned Magistrate and also in the writ petition, were not without foundation, inasmuch as, there was the existence of a boundary v/all to the south of the common passage which the writ Petitioner/ Respondent No. 1 was entitled to repair and/or erect and it was up to the members of the Society to move the Court to establish their claim and/or right, if any, to prevent the Petitioner-firm from raising such boundary wall.

Mr. Ghosh urged that the writ Petitioner-firm had not moved the writ application without notice to the society, but since notice has been refused, the learned Single Judge was left with no alternative but to proceed with the writ application and pass orders thereupon as he thought fit and proper in the facts and circumstances of the case.

Having regard to the claim and counterclaim made on behalf of the parties regarding the existence of a boundary wall to the south of the common passage beyond the multi-storeyed building complex, we felt it necessary in terms of the prayer made on behalf of the Appellant Society to appoint a Special Officer to make a local, inspection and to submit a report as to whether there was existence of any boundary wall in the premises as claimed by the writ Petitioner/Respondent No. 1. Accordingly, by an order dated July 2, 2004, we appointed Mr. Somen Bose, a learned advocate of this Court, as Special Officer to inspect the premises in presence of both the parties and their counsels and to submit a report on his inspection.

Mr. Bose held the inspection on July 6, 2004, and filed his report when the matter was taken up on July 8, 2004. From the report it appears that from the entrance of the premises from Russell Street* along the common passage till where the multi-storeyed building starts, there is an old boundary wall but beyond the said portion there is no existence of the wall in continuance of and after a portion of the wall jutting out into the common passage. However, in the penultimate paragraph of the report it is also mentioned that in between the cemented flooring of the common passage in front of the building and the clay soily portion, where the cars are kept parked, there is existence of bricks embedded in the soil running along the line of the common passage of the cemented portion -

Having regard to the facts mentioned in the report, Mr. Utpal Bose submitted that in the report it has -been mentioned that there was no existence of a wall in continuance of and after the boundary wall which clearly vindicates the stand of the Appellant Society and that the question of repairing any broken wall, therefore, does not arise. Mr. Bose submitted that the entire exercise undertaken by the writ Petitioner/Respondent No. 1 was with the intention of walling up the entire portion of the premises where the numbers of the Society parked their cars and not with any intention to repair the so-called broken and damaged wall,

On the other hand, Mr. Ghosh tried to take advantage of the penultimate paragraph in submitting that the existence of bricks running along the line of the common passage clearly indicates that there was a wall in existence upon which the writ Petitioner/Respondent No. 1 was entitled to raise and/or construct a new wall.

In any event, Mr. Ghosh tried to emphasise that although an attempt had been made on behalf of the Society to suggest that there was, in fact, a dispute of a civil nature, such a suggestion was incorrect and that the writ Petitioner/Respondent No. 1 was within its right even to raise a new boundary wall and if any right of the Appellant-Society and its members was threatened, they could move the civil Court to establish and protect such right.

We have carefully considered the submissions made on behalf of the respective parties and, in particulars, the report .submitted by Mr. Somen Bose, the Special Officer.

It is quite true that the orders of the learned Single Judge were passed without hearing the Society and Its members. Although, notice may have been initially served on the Secretary o the Society, the fact remains that when the orders were passed neither the Society nor its members were present. However, the said omission can be said to have been rectified during the hearing of the appeal since both the parties were given extensive opportunity of placing their respective cases and we have had the opportunity of looking into the facts from both the angles and, in particular, we have been able to consider the various agreements and the affidavits affirmed with regard to the rights of the parties to use the premises.

We are conscious of the fact that any breach of the agreements and/or the covenants contained in the agreements would have to be enforced and/or taken care of by another forum but the facts of the instant case do not really involve breach of such covenants. What it involves, is a right of the writ Petitioner/Respondent No. 1 to take certain measures in pursuance of its ownership rights in the premises which is being threatened by persons who may be members of the Society in question.

It is for such persons who are claiming a right in the vacant portion of the land south of the common passage to establish the same before the Civil Court. Accordingly, even though the Society and its members had not been heard by the learned Single Judge, we are inclined to maintain the orders as passed by the learned Single Judge, and, in the event, the Society and its members claim any right over the vacant land in question, they will be at liberty to establish such right before the Civil Court and the order passed by the learned Single Judge and as affirmed by us, will be subject to any decision that may be arrived at in the civil action.

The appeal, is, accordingly, dismissed. There will, however, be no order as to costs.

The learned Special Officer who has been given an initial remuneration of 100 Gms. will be entitled to a further remuneration of 200 Gms. to be borne equally by the parties,

Let the Report of the Special Officer be kept on record.

Xerox certified copies of this judgment and order be made available to the parties as expeditiously as possible.

Asit Kumar Bisi, J.

I agree.