BASANA DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition, the petitioners have challenged the impugned order dated 3rd December 1999 passed by the Chairman South Dum Dum Municipality being the respondent No. 2 herein purported to be in terms of the judgment and order of the Division Bench of this Court in MAT No. 2139 of 1999 dated 30th September 1999. The controversy in the writ petition relates to the sanction granted by the Municipal authority to the revised building plan being No. 544 of 2nd January 1997. The fact of the case is briefly stated hereunder.

(2.) The petitioners and each of them on or about 1994 entered into agreements for acquiring several flats which were then being proposed to be constructed, with the respondent Nos. 4 and 5 as the confirming party and respondent Nos. 7 and 8 as the vendors. In terms of the agreements the petitioners and each of them agreed to purchase and the vendors as well as the confirming parties agreed to sell the respective flats having specified area together with all rights and facilities, which include car-parking facilities and proportionate share in the land. The respondent Nos 4, 5 and 6 on the strength of the power of attorney for and on behalf of the respondent Nos. 7 and 8 being owners of the land duly and lawfully obtained sanction to building plan for construction of a multi storied building having G + IV stories. The said plan was duly sanctioned on or about 18th February 1994. In accordance with sanction to the said plan the respondent Nos. 4, 5 and 6 constructed the building and the ground floor thereof was shown in the sanctioned building plan as car parking. In due course of time by and under registered deeds of conveyance the petitioners and each of them acquired their respective flats together with all rights as mentioned in the deeds of conveyance including their right to park their cars in the ground floor as mentioned and shown in the sanction building plan. The petitioners along with other flat owners took possession of their respective flats, thus they became joint owners in respect of the flats as well as proportionate right, title and interest in the land in question. In or about January 1997, the petitioners and each of them discovered that the respondent Nos. 4, 5 and 6 had attempted to take possession of the car parking space for further construction of the flats in the ground floor on the strength of sanction to the revised plan issued by the respondent Municipality. The petitioners being the flat owners and the respondent Nos. 7 and 8 being the erstwhile absolute owners of the land protested against such act of the respondent Nos. 4, 5 and 6 and also duly complained to the respondent No. 2 for taking action against such illegal construction and also for withdrawal of the sanction granted to the revised building plan whereby the entire ground floor including open space for car parking in the previous sanction plan; was shown to have been converted into several flats in the ground floor. It is recorded that after completion of the construction of the building in terms of the sanction to the original building plan necessary signature of occupancy and fitness and further completion thereof were issued by the respondent No.2 in or about 16th October 1996.

(3.) Despite such representation and protest the Municipal authority did not take any action whatsoever. The petitioners and each of them thus were compelled to approach this Court with the writ petition being No.W.P. 23185 (W) of 1997. The said writ petition was disposed of by an order dated 25th November 1997 by the Hon'ble Justice Gitesh Ranjan Bhattacharjee (as His Lordship then was). By this order His Lordship was pleased to grant liberty to the petitioners to file a comprehensive representation in that matter to the respondent No. 2, the Chairman South Dum Dum Municipality for cancellation of the revised plan within two weeks from the date of the order. His Lordship was pleased to give direction upon he Municipal authority to consider the said representation and dispose of the same by passing a speaking order after giving an opportunity of hearing to the petitioners and their representatives advocate, the promoters respondent and/or their representative advocates and such other person or persons as may be necessary within a period of 8 weeks from the date of filing of the representation. Pursuant to the liberty granted the petitioners made comprehensive representation to the Chairman to the represent No. 2 herein raising several points namely applicability of West Bengal Building, Promotion, Construction and Transfer by Promoters Act, 1993 as well as West Bengal Apartment Ownership Act, 1972. The respondent No. 2 on receipt of the said representation purported to have disposed of the same rejecting the contention of the petitioners the sanction granted to the revised building plan was not withdrawn nor cancelled. Challenging the said order of respondent No.2 dated 15th January 1998 the petitioners once again approached this Court with another writ petition being No.1247 (W) of 1998. The writ petition was disposed of by Justice P.K. Samanta by passing an order dated 9th April 1999. By this order His Lordship was pleased to set aside the aforesaid order of the respondent No. 2 on various grounds as has been observed by His Lordship. The promoter developer being the respondent Nos. 4, 5 and 6 herein had taken this matter to Appeal Court impugning the judgment and order of Justice Samanta. The Appeal Court by the aforesaid order dated 30th September 1999 disposed of the appeal as well as the subject matter of the writ petition. Their Lordships the Hon'ble Mr. Justice P.K. Sen and the Hon'ble Mr. Justice V.K. Gupta (as Their Lordships then were) were pleased to observe that representation made by the writ petitioners as well as the previous owners of the land were not considered and dealt with by the Chairman properly. Their Lordships wefe pleased to observe that no reason was recorded. In fact in their order Their Lordships recorded Their Lordships' displeasure in the act and conduct of the respondent No.2 herein. As such Their Lordships were pleased to set aside the judgment and order of the learned single Judge dated 1993 holding West Bengal Promotion, Construction and Transfer by Promotions Act, 1993 was not applicable. The basis of the learned single Judge's order was that there was total non-observance of the provision of the aforesaid 1993 Act.