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2000 DIGILAW 379 (CAL)

Lakshmi Jaiswal v. Sanjay Jaiswal

2000-08-02

H.Banerji, S.B.Sinha

body2000
Judgment S.B. Sinha, J. This appeal is directed against a judgment and order dated 27th March, 1998 passed by a learned single Judge of this Court in Writ Petition No. 24097(W) of 1997 whereby and whereunder the writ application filed by the respondents herein was allowed. 2. The basic fact of the matter is not in dispute. The case made out by the writ petitioner-respondents was as follows:- 3. Premises No. 12, Hut Lane was originally owned by Kartick Chandra Mallick and others (Mallicks). One Lakshmi Debi was a tenant in respect of the said premises. She inducted sub-tenants, Mallicks instituted a suit against Lakshmi Debi marked as Title Suit No. 309 of 1993 which was decreed in terms of a compromise petition which formed part thereof wherein allegedly Lakshmi Debi admitted that she was a monthly tenant under them and surrendered the tenancy in their favour. Mallicks' names were thus, recorded as owners in respect of the said premises in the Howrah Municipal Corporation records. 4. The respondent purchased the said premises from Mallicks by a registered deed of sale dated 11th October, 1993 wherein Lakshmi Debi was a confirming party. Pursuant to an application the name of the writ petitioner was mutated. The tenants were asked to attorn the writ petitioner and accept the appellant herein as their landlords. Others surrendered their tenancy in their favour. The appellant herein, however, refused to do so. Admittedly the writ petitioners are developers. The appellant and the writ petitioner-respondent are cousins and allegedly several litigations are going on between them. The writ petitioners allegedly gave an offer to the respondent No.5 that a portion of the newly constructed building wherefor allegedly the plan had been sanctioned would be given in her favour but she not only did not accepted thereto but submitted a representation before the Corporation for issuing a stop work notice and for cancellation of the plan. 5. A Civil Suit was filed by the writ petitioner in the Court of Third Civil Judge, Howrah, being Title Suit No. 122 of 1997 and by an order dated 11th June, 1997 the appellant was restrained from interfering with the constructions raised by the respondents. 6. An appeal was preferred by her there against which is said to be pending. A Civil Suit was filed by the writ petitioner in the Court of Third Civil Judge, Howrah, being Title Suit No. 122 of 1997 and by an order dated 11th June, 1997 the appellant was restrained from interfering with the constructions raised by the respondents. 6. An appeal was preferred by her there against which is said to be pending. In the meantime she also filed a writ application before this court which was marked as W.P. 11353 (W) of 1997 praying for cancellation of the building plan and Kabir, J, by an order dated 6th August, 1997 directed:- "I dispose of this application with a direction upon the Commissioner, Howrah Municipal Corporation, to treat the petitioner's complaint dated 19th June, 1997 being Annexure 'F' to the writ petition, as a complaint under Rule 15A of the Howrah Municipal Corporation Building Rules, 1991 and to dispose of the same, after giving the petitioner and the private respondents and all concerned, a reasonable opportunity of hearing and producing relevant documents in support of their respective cases, they shall communicate the order to be passed by him to the parties within a week from passing of such order. The said authority shall take up the matter for consideration on 22nd August, 1997 at 10-30 A.M. No further notice need be served in respect of the first hearing. While disposing of the matter, the Hearing Officer shall keep in mind the observations made hereinabove." 7. Pursuant to the said order the matter was heard by the appropriate authority of the Howrah Municipal Corporation. The Commissioner of Howrah Municipal Corporation having heard the parties directed :- "As per order of Hon'ble High Court in the case of Smt. Lakshmi Jaiswal vs. State of West Bengal, both the parties were called for hearing and the deposition taken on 24.9.1997, Sri Lakshmi Jaiswal was represented by his brother Daya Sankar Jaiswal. Perused the relevant records in the file and discussed with officers of building department also. After going through such perusal and hearing, it appears that the land on which the building plan has been sanctioned, is a thika tenant/and. Sri Ajoy Kumar Jaiswal purchased the land from thika tenant Smt. Lakshmi Devi and Sri Lakshmi Jaiswal being the sub-tenant or 'Bharatia' of the thika tenants Smt. Lakshmi Debi. It appears that the right and title of the thika tenant is heritable but not transferable. Sri Ajoy Kumar Jaiswal purchased the land from thika tenant Smt. Lakshmi Devi and Sri Lakshmi Jaiswal being the sub-tenant or 'Bharatia' of the thika tenants Smt. Lakshmi Debi. It appears that the right and title of the thika tenant is heritable but not transferable. Similarly, the right and title of Bharatia is also protected in Thika Tenancy Act. Accordingly, the purchase of thika tenant land is not valid under law. Similarly, the right of Bharatia is protected and so long Sri Lakshmi Jaiswal wants to stay as 'Bharatia' the building plan on that land cannot be sanctioned. Accordingly plan on the disputed land should be withheld from sanction." 8. Questioning the said order the first respondent herein filed the aforementioned writ application. 9. The case of the appellant was that the property in question constituted a thika tenancy. The said property was recorded as thika tenancy land in the name of Gangajali widow of Baldev Shaw. A structure on the said land was constructed and the said structure was sold by Gangajali along with her right of thika tenancy to Smt. Lakshmi Debi who had inducted the appellant as also the respondent No.1 and Lakshmi Debi as Bharatias. According to the appellant in terms of the provision of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, the land vested automatically in the State and the appellant became a statutory tenant. According to the appellant, the purported compromise entered into by and between Mallicks and Lakshmi Debi were coercive and the decree passed therein was not binding upon the appellant as she had acquired an independent statutory right. Admittedly, the appellant has also filed a suit which is pending. 10. The learned trial Judge held when the civil court was in seisin of the matter and in view of the fact that the order of the Civil Court was binding, the Commissioner of Howrah Municipal Corporation could not have passed the said order. It was held :- "The question of title is not within the domain of respondent No.3 to decide. The relief under Article 226 of the Constitution is a discretionary one and when the matter is pending in the Civil Court the writ court shall not interfere with the same. It was held :- "The question of title is not within the domain of respondent No.3 to decide. The relief under Article 226 of the Constitution is a discretionary one and when the matter is pending in the Civil Court the writ court shall not interfere with the same. Accordingly, apart from declaring the impugned order as illegal and quashing the same, this court shall not give any further direction on the respondents in the facts and circumstances of the case. This decision shall not however stand in the way of the petitioners seeking appropriate relief in appropriate forum including taking recourse to the provisions of Howrah Municipal Corporation Act with this observation the writ application stands disposed of on contest." 11. Mr. Mishra, the learned Counsel, appearing on behalf of the appellant, inter alia, submitted that as the properties have vested in the State and his client having acquired an independent statutory right, the Howrah Municipal Corporation could not have sanctioned a building plan wrongly in favour of the objection in terms of Rule 15(1) of the Howrah Municipal Corporation Building Rules, 1991. Mr. Mishra, therefore, submitted that the learned trial Judge erred in passing the impugned judgment and order. 12. Mr. Ashok Banerjee, the learned counsel, appearing on behalf of the respondent, on the other hand, submitted that the question as to whether the sale deed executed in favour of the respondent is valid or not could not have been decided by the Commissioner of Howrah Municipal Corporation and in that view of the matter he had no jurisdiction to pass the impugned order. In support of the said contention reliance has been placed upon a Division Bench decision of this court in Indira Devi Rajak vs. Thika Controller & Ors., reported in 1999(2) CLJ 79 : 1999(2) CHN 311 , wherein A. Kabir, J, speaking for the Division Bench held :- "We have carefully considered the submissions made on behalf of the respective parties and we are of the view that the Thika Tenancy Controller, Howrah, overstepped the jurisdiction vested in him under the provisions of the statute. As will appear from the order-sheet itself, except for the entries in the R.S. record of rights, the Thika Tenancy Controller, Howrah, did not rely on any other document in assuming that the property in question was a thika tenanted property. As will appear from the order-sheet itself, except for the entries in the R.S. record of rights, the Thika Tenancy Controller, Howrah, did not rely on any other document in assuming that the property in question was a thika tenanted property. While it is true that in the R.S. record of rights, the property may have been described as a thika tenanted property, the Thika Tenancy Controller, Howrah, in our view, ought not to have relied on such entries in arriving at a decision that the property in question was a thika tenanted property, since it is now well established that the entries in the record of rights give rise only to a presumption of possession and cannot be relied upon as a document of title. Furthermore, in our view, the Thika Tenancy Controller, Howrah, exceeded the jurisdiction vested in him in declaring the two deeds, referred to above, as void. This, in our view, comes within the purview of the Civil Court and could have been declared as void only by the Civil Court. While sub-section (2) of section 7 of the 1981 Act indicates that any transaction entered into in respect of a thika tenanted property after the coming into operations of the 1981 Act would be void the same would have to be declared as void not by the Thika Tenancy Controller, Howrah, being a creature of the statute he has to confine himself to the powers vested in him by the statute. There is nothing in the statute to indicate that the Thika Tenancy Controller, Howrah, could adjudicate on the validity of a document of title, notwithstanding the provisions of sub-section (2) of section 7 of the 1981 Act." 13. According to Mr. Banerjee, the same principle would apply to the authorities of the Howrah Municipal Corporation and, thus, on this ground alone the order passed by the learned single Judge should be sustained. 14. The Howrah Municipal Corporation Act, 1980 was enacted to provide for better administration of the municipal affairs of Howrah by the establishment of a Municipal Corporation. 15. The matter relating to thika tenancy was earlier governed by the provisions of Calcutta Thika Tenancy Act, 1949. 14. The Howrah Municipal Corporation Act, 1980 was enacted to provide for better administration of the municipal affairs of Howrah by the establishment of a Municipal Corporation. 15. The matter relating to thika tenancy was earlier governed by the provisions of Calcutta Thika Tenancy Act, 1949. The State enacted Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to as 1981 Act) to provide for acquisition of interests for landlords in respect of lands comprised in thika tenancies and certain other tenancies and other lands in Calcutta and Howrah for development and equitable utilization of such lands. The 1981 Act was enacted for giving effect to the policy of the State who are securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India. 16. Bharatia has been defined in sub-section (1) of section 3 of the 1981 Act to mean any person by whom, or on whose account rent is payable for any structure or part thereof, owned by a thika tenant or tenant of other lands in his holding or by a landlord in a bustee on his khas land. 17. Landlord has been defined in section 3(4) to mean any Corporation, charitable or religious institution or person who, for the time being, is entitled to receive or but for a special contract would be entitled to receive the rent for any land comprised in the tenancy of a thika tenant or tenant of other lands or in a khatal, tank or put owned by him in a bus tee on his khas land, and includes any corporation, institution or person having superior interest in such thika tenancy. 18. Thika tenant has been defined in sub-section (8) of section 3 of the 1981 Act, which reads thus :- "Thika tenant means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by pruchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person." 19. Section 4 provides for a non-obstante clause. 20. Section 5 of the 1981 Act reads thus:- "Section 5. Lands comprised in thika tenants, khas lands, etc. Section 4 provides for a non-obstante clause. 20. Section 5 of the 1981 Act reads thus:- "Section 5. Lands comprised in thika tenants, khas lands, etc. to vest in the State.-With effect from the date of commencement of this Act, the following lands along with the interest of landlords therein shall vest in the State, free from all in-cumbrances, namely:- (a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains; (b) lands comprised in and appurtenant to bustees on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains; (c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains; (d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal: Provided that such vesting shall not affect in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias and occupiers of land coming within the purview of clauses (c) and (d)." 21. Sub-sections (1), (2) & (3) of section 6 read thus:- "Section 6. Incidents of tenancies in respect of lands vested in the State.-(1) Subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (XXXIII of 1976), and the provisions of this Act, every thika tenant and any tenant, in respect of other lands which vest under section 5, occupying any land under a landlord on the date of commencement of this Act, shall occupy such land, on such terms and conditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land. (2) Every thika tenant and every tenant of other lands holding directly under the State under sub-section (1) shall be liable to pay to the State Government in the prescribed manaer such revenue as may be determined. (3) The interests of thika tenants and tenants of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest or to the prospective heirs, subject to the provisions of sub-section (1) of section 7." 22. (3) The interests of thika tenants and tenants of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest or to the prospective heirs, subject to the provisions of sub-section (1) of section 7." 22. Section 9 provides for the thika tenants and Bharatia to be governed by West Bengal Act No. XII of 1956. In terms of section 11 of the 1981 Act the tenancy of Bharatia is to continue. Section 11 provides for certain adjudicatory power upon the Thika Controller and section 12 refers to powers of Controller. An order passed by a Thika Controller is appealable one. 23. Section 17 of the 1981 Act protects the right of a Bharatia, which reads thus:- "Section 7. Restriction or exclusion of Act by agreement.-Nothing in any contract between a thika tenant and a Bharatia made after the commencement of this Act shall take away or limit the rights of such tenant or Bharatia as provided for by this Act, and any contract which is made in contravention of, or which is inconsistent with any of the provisions of this Act, shall be void and without effect to the extent of such contravention or inconsistency." 24. Thus, there cannot be any doubt whatsoever that if the land in question is ultimately held to be comprising a thika tenancy, the provisions thereof shall apply and the appellant's interest cannot be said to have been affected by reason of the purported compromise decree entered into by and between Mallicks and Lakshmi Debi in Title Suit No. 309 of 1993. A consent decree as is well known is an agreement between the parties with the seal of the court superadded to it. See Baldevdas Shivlal vs. Filmistan Dis. (India) P. Ltd., reported in 1969 (2) SCC 201 . Thus, on the ground an agreement can be assailed, on the same grounds a consent decree can also be assailed. 25. If the premises in question comprise of a thika tenancy, Mallicks ceased to have a right after 1981 Act came into force. 26. It may be true as has been held by a Division Bench of this court in Indira Devi (supra) that a record of right is not a document of title. 25. If the premises in question comprise of a thika tenancy, Mallicks ceased to have a right after 1981 Act came into force. 26. It may be true as has been held by a Division Bench of this court in Indira Devi (supra) that a record of right is not a document of title. But it is also well settled that entries in a record of right carry with it a presumption. Such entries having been made in the record of rights as far back as in the year 1930, the presumption becomes stronger. It was for the Mallicks and consequently for the writ petitioner-respondent to show that such entry was not correct. Such a declaration could have been granted only by a competent Civil Court. 27. Mallicks filed a suit against Lakshmi Debi purported to be in terms of the provision of West Bengal Premises Tenancy Act. The said Act, in the event the premises in question is held to be appertaining to thika tenancy, cannot be said to have any application whatsoever. In the aforementioned situation the only question which arises for consideration is as to whether the order impugned in the writ application passed by the Commissioner of Howrah Municipal Corporation was correct or not. 28. Howrah Municipal Corporation Act, 1980 is a regulatory Act. Section 173 of the said Act reads thus:- "Section 173. Use of land for erection of new building.-No person shall use any piece of land as a site for erection of a new building except in accordance with the provisions of this Act and of the rules and the regulations made under this Act in relation to such erection of building." 29. Section 174 of the said Act provides for an application for sanction for erection of building. 30. It may be true that once a building plan was sanctioned, the same confers a right but if any building plan is issued contrary to the provision of the Act and the Rules, the statute provides for cancellation of such permit. Section 179 of the Act provides for prohibition on change of use of building. 31. So far as the thika tenants are concerned section 187 of the said Act would be attracted which is a special provision. 32. Section 215 of the said Act empowers the State Government to make rules for carrying out the purposes of the said Act. Section 179 of the Act provides for prohibition on change of use of building. 31. So far as the thika tenants are concerned section 187 of the said Act would be attracted which is a special provision. 32. Section 215 of the said Act empowers the State Government to make rules for carrying out the purposes of the said Act. Pursuant to or in furtherance of the said power the State has framed rules known as the Howrah Municipal Corporation Building Rules, 1991. A notice of erection or alteration of a building is to be served in terms of Rule 4 of the said Rules. One of the grounds for refusal by the Commissioner to sanction such a building plan is contained in clause (d) of sub-rule (1) of Rule 15 that the building or the work would be encroachment on Government land or land vested in the Corporation. 33. Rule 15A of the said Rules reads thus:- "Rule 15A. Cancellation of Building Permit.-The Commissioner may by a written order cancel any Building Permit issued under these rules when such plans were accorded sanction based on consequences of any material misrepresentation or any fraudulent statement in the notice or violation of any conditions for sanction after sanction or during construction." 34. The order impugned in the writ application was passed pursuant to the order passed by A. Kabir, J, in Writ Petition No. 11353(W) of 1997 in terms of the order dated 6.8.97. The said order was not appealed against. The aforementioned order was, thus, bound to be complied with by the Commissioner of the Howrah Municipal Corporation. 35. It is, therefore, now not open to the writ petitioner-respondent to contend that such order could not be given effect to in view of the Division Bench judgment of Altamas Kabir, J, in Indira Debi (supra). The said order having been passed by a competent court of law would operate as res judicata. 36. There cannot be any doubt whatsoever that the respondent No.3 could not decide the question of title. In a similar situation, a Division Bench of this court in K.G. Patel vs. Chandra Devi Bothra, reported in 1997(1) CHN 156 , while holding that the order relating to resolution of dispute on title is not permissible, such an order can be passed for a limited purpose. In a similar situation, a Division Bench of this court in K.G. Patel vs. Chandra Devi Bothra, reported in 1997(1) CHN 156 , while holding that the order relating to resolution of dispute on title is not permissible, such an order can be passed for a limited purpose. It was held:- "The scope and object of the Corporation in terms of sections 183 and 184 is absolutely limited one. It is true as has been submitted by Mr. Pal that in terms of section 193 (4) of the Calcutta Municipal Corporation Act a thika tenant is liable to pay the consolidated rate assessed in respect of such land and any hut of building made thereon but the said provision contains a non-obstante clause. It has application in a case where vesting of land in the State under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 is not in dispute, if the land has vested in the State pursuant to Calcutta Thika Tenancy (Acquisition & Regulation) Act, sub-section (4) of section 193 of the said Act fastens a liability on the thika tenant to pay such rent. The said provision by itself cannot be said to have conferred any jurisdiction upon the authorities of the Calcutta Municipal Corporation to decide as to whether keeping in view the nature of the lease, the same would be governed by the Transfer of Property Act or Calcutta Thika Tenancy Act." 37. There cannot be any doubt whatsoever that in a land dispute, mutation of property in revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person to pay land revenue. See Smt. Sawarni vs. Smt. Inder Kaur & Ors., reported in Judgment Today 1996(7) SC 580. 38. However, the matter relating to inclusion in the list of assessment in terms of sections 183 and 184 of the Calcutta Municipal Corporation Act stands on a different footing inasmuch as by reason thereof, the person in whose name assessment register is altered has some benefit as regards enforcement of his right under the relevant Municipal Corporation Act including his right to erect a building thereupon by obtaining a plan sanctioned therefor. In that situation, this court is of the opinion that although the question as regards title or possession of a party claiming mutation may not be finally gone into but for the purpose of realising of tax it may be possible for the Municipal Corporation to arrive at a prima facie finding which would not be conclusive and the same would be subject to any result of any judgment or decree passed by a competent court of law. 39. However, there cannot further be any doubt whatsoever that a complicated disputed question of title cannot be decided by the authorities of the Municipal Corporation. 40. In Mohanlal Goenka vs. Benoy Krishna Mukherjee & Ors., reported in AIR 1953 SC 65 , the Apex Court has held:- "There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta vs. Gopinath Deb, AIR 1943 Cal 460." 41. In Official Trustee, West Bengal vs. Sachindra, reported in AIR 1969 SC 823 , the Apex Court has reiterated the underlying principles of res judicata. 42. That the principles of res judicata and/or constructive resjudicata apply in a writ proceeding are not longer res integra. If according to the writ petitioner-respondent, the said order of Kabir, J, was passed without jurisdiction, an appeal there against ought to have been taken. No appeal having been filed there against, the same has attained finality. It is true that by reason of the said order alone, the order of the Commissioner cannot be sustained but the only question which was required to be posed and answered was as to whether the Commissioner of Howrah Municipal Corporation exceeded his jurisdiction in passing the said order. 43. The power of a writ court to interfere with an order passed by a statutory authority is now well settled. 43. The power of a writ court to interfere with an order passed by a statutory authority is now well settled. By reason of judicial review the High Court can interfere with the order passed by a statutory authority, inter alia, on anyone of the following grounds, namely, (1) illegality, (2) irrationality, and (3) procedural impropriety. 44. The learned trial Judge has proceeded on the basis that the Commissioner, Howrah Municipal Corporation could not decide the question of title. The said finding is unassailable. But the learned trial Judge, in our opinion, failed to pose the correct question, namely, as to whether in terms of the provision of the Howrah Municipal Corporation Act, a building plan can be refused to be sanctioned if the concerned authority arrives at a decision that such building plan, if sanctioned, would contravene the provisions of the Howrah Municipal Corporation Act and the rules framed thereunder. The answer to the said question must be rendered in the affirmative. Although question of title cannot be gone into but keeping in view the provisions of Rule 15 of the Building Rules, 1991 there cannot be any doubt whatsoever that a statutory authority is entitled to arrive at a finding that if the building or works erected therein pursuant to a sanctioned building plan, the same would cause encroachment on Government land. 45. With a view to granting the building plan a statutory authority must satisfy itself that the condition precedent therefor has been fulfilled. 46. In order to arrive at a correct conclusion, it is, therefore, entitled to consider the documents produced before it by the concerned parties and arrive at a prima facie decision. Such a decision with regard to title of the land would not be final. 47. It is, therefore, not correct to contend that the Commissioner of the Howrah Municipal Corporation lacked inherent jurisdiction to consider even prima facie question of title. 48. We, therefore, must set aside the order passed by the learned trial Judge with the aforementioned observations. 49. This court in exercise of its power under Article 227 of the Constitution of India hereby direct the Civil Courts to decide the questions pending before them expeditiously. 48. We, therefore, must set aside the order passed by the learned trial Judge with the aforementioned observations. 49. This court in exercise of its power under Article 227 of the Constitution of India hereby direct the Civil Courts to decide the questions pending before them expeditiously. The parties are given liberty to bring this order to the notice of the competent Civil Court dealing with the subject matter of this appeal so that the pending proceedings may be disposed of expeditiously. This order, however, shall not preclude the Civil Court to arrive at its own conclusion both in the suit as also in the interlocutory proceedings without in any way being prejudiced by this order. 50. For the reasons aforementioned the impugned judgment and order cannot be sustained which is set aside accordingly. The appeal is allowed. In the facts and circumstances of this case there will be no order as to costs. H. Banerji, J.: I agree. Appeal allowed.