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2001 DIGILAW 185 (CAL)

Jyostna v. Sampat Lal Rathi

2001-03-30

Altamas Kabir, GORACHAND DE

body2001
JUDGMENT Altamas Kabir, J. : On 14th September, 1994, the respondent Nos. 1 to 20 in this appeal filed a suit against the appellants and the other respondents before the learned Assistant District Judge, Sealdah, being Title Suit No. 180 of 1994, for the following amongst other reliefs, namely, (a) Relief be granted to the plaintiffs to institute the said suit in representative capacity under the provisions of Order 1 Rule 8 of the Code of Civil Procedure; (b) Decree for declaration that the plaintiffs and the other flat owners of the said premises have joint right, title and interest in the ground floor and adjoining open space therein and are legally entitled to enjoy the common facilities and amenities by virtue of their ownership in the respective flats of the said premises No. 194A, Satin Sen Sarani, Calcutta, described in the schedule to the plaint. (c) Perpetual injunction restraining the defendants and their servants and agents from selling, alienating transferring and/or encumbering any part of the ground floor including the adjoining open space of the said house and premises as mentioned within the property line as indicated in the sanctioned plan of the said premises No. 194A, Satin Sen Sarani, Calcutta- 700 054; (d) A decree for temporary injunction directing the defendants to demo lish and remove the wall constructed by them in the ground floor of the suit premises in contravention of the sanctioned plan in the rest of eastern property line of the plan; (e) A decree for temporary injunction directing the defendant to demo lish and remove the grill and grill gates erected on the landing of stairs between 9th and 10th floor, being erected in contravention of the sanctioned plan. 2. On 19th September, 1994, the plaintiff/respondent Nos. 1 to 20 filed an application under order 39 Rules 1 and 2, read with section 151 of the Code of Civil Procedure, praying for an order of injunction against the defendant from alienating and/or selling, and/or transferring possession of any part of the ground floor, including the adjoining open space of the suit premises as mentioned in the schedule to the plaint. By Order No.2 of even date the learned Court below passed an ex parte ad interim order of injunction restraining the defendants from alienating, selling or transferring possession of any part of the ground floor including the adjoining open space of the suit premises until further orders. 3. The appellant's herein filed an appeal in this Court against the said order, being F.M.A. No. 1363 of 2000, and the same was disposed of with a direction upon the learned trial Court to dispose of the application for temporary injunction on priority basis within three weeks from the date of communication of the order. The plaintiffs application for temporary injunction was thereafter taken up for hearing and by order No.35 dated 25th July, 2000, the learned trial Court allowed the said application along with the application filed under section 151 of the Code of Civil Procedure on contest and restrained the defendants from selling, transferring or parting with possession of the ground floor space and common areas in favour of anybody else and from making any sort of construction therein. The ad interim order passed on 19th September, 1994, was made absolute. This appeal is directed against the said order of the learned Court below. 4. Appearing in support of the appeal, Mr. Saktinath Mukherjee submitted that the learned trial Court had misconstrued the provisions contained in the Agreement for Sale between the plaintiffs/purchasers and the defendants/developers, as also the Declaration under section 10A of the West Bengal Apartment Ownership Act, 1972, which was made a part of the' Conveyance in favour of the flat owners, in coming to a finding that the plaintiffs had been able to establish a good prima facie case and that having regard to the provisions of section 3 (i) (a) of the aforesaid Act, the balance of convenience and inconvenience lay in favour of the plaintiffs and that if the defendants were allowed to sell, transfer or part with possession of the common areas, there would be multiplicity of proceedings and the plaintiffs would suffer irreparable loss and injury. 5. Mr. Mukherjee submitted that the respondent Nos. 21 to 28, hereinafter referred to as the 'Dani respondents' were the owners of premises No. 194A, Satin Sen Sarani, formerly known as 194A, Manicktala Main Road, under Phoolbagan Police Station, Calcutta- 700 054. 5. Mr. Mukherjee submitted that the respondent Nos. 21 to 28, hereinafter referred to as the 'Dani respondents' were the owners of premises No. 194A, Satin Sen Sarani, formerly known as 194A, Manicktala Main Road, under Phoolbagan Police Station, Calcutta- 700 054. By an agreement in writing dated 1st February, 1988, the appellant No. l/partnership firm, hereinafter referred to as the 'Developers' agreed to purchase and the Dani respondents agreed to sell the aforesaid premises measuring about 22 cottahs, 14 chittacks and 26 square feet of land, together with a partly one-storeyed and partly two-storeyed building erected thereon, along with the benefit of a sanctioned plan as also the right of the Developers or their nominees to construct, erect and complete the building or buildings on the said premises in accordance with the sanctioned plan obtained by the Dani respondents, for a consideration of Rs. 1.5 crores. 6. According to Mr. Mukherjee, in terms of the said agreement, upon payment of the entire consideration money the possession of the entire premises was made over to the Developers by the Dani respondents and thereafter the Developers demolished the existing building and raised a construction in accordance with the sanctioned plan, being No. 42 dated 25th July, 1984, and entered into agreements for sale and transfer of the flats constructed. Mr. Mukherjee also pointed out that in terms of the agreement the Developers would be entitled to sell or transfer or cause to be sold or transferred the undivided proportionate share in the land in favour of their nominee or nominees, transferor or transferees who intended to own the constructed portion or areas. 7. Mr. Mukherjee submitted that between 30th June, 1990 and 28th December, 1992, by several Deeds of Conveyance the Dani respondents, described as ‘Vendor’ and Jyostna described as 'Developers' sold and delivered to the plaintiffs and others as "Purchasers" the specific portions of the constructed areas in respect of which agreements had been entered into between the Purchasers and the Developers. Mr. Mukherjee submitted that between 30th June, 1990 and 28th December, 1992, by several Deeds of Conveyance the Dani respondents, described as ‘Vendor’ and Jyostna described as 'Developers' sold and delivered to the plaintiffs and others as "Purchasers" the specific portions of the constructed areas in respect of which agreements had been entered into between the Purchasers and the Developers. Mr. Mukherjee submitted that a Declaration dated 2nd April, 1990, duly executed and submitted by the Developers and registered with the Registering Authority as required under the provisions of sections 2, 10, 10A and 12 of the West Bengal Apartment Ownership Act, 1972, had been incorporated in the several Deeds of Conveyance for the benefit of all the flat owners in the said premises and for the purpose of common enjoyment of the common portions and facilities and making applicable the provisions of the said Act to the said premises. 8. Referring to a copy of one of the agreements entered into between the Owners, the Developers and one Mr. Gwal Das Agarwal, Mr. Mukherjee submitted that the portion of the premises agreed to be conveyed to each purchaser had been specified and referred to as a numbered unit in the Second Schedule of the agreement, together with the proportionate share in the common portions described in paragraph 1.12 of the agreement and also described in the Second Schedule thereto. 9. Mr. Mukherjee submitted that garage or car parking space was defined in paragraph 1.10 to mean the open or covered car parking space/garage and described in the Fourth Schedule of the agreement. Mr. Mukherjee submitted that as it would appear from the Fourth Schedule to the agreement under consideration garage space had been shown to be in the basement of the building and the value thereof had been shown as Rs. 45,000/-. 10. Mr. Mukherjee submitted that as it would appear from the Fourth Schedule to the agreement under consideration garage space had been shown to be in the basement of the building and the value thereof had been shown as Rs. 45,000/-. 10. As indicated hereinbefore, "Common Parts" had been defined in the manner following:- “1.12 COMMON PARTS shall mean and include corridors, staircases, passage-ways, lift shafts, ducts and other facilities including water pump room, front space of lift, lift machine room, space occupied by water reservoir on ground floor, service area, electric room whatsoever required for maintenance and/or management of the building, but shall not include the roof, terrace, basement, car parking space and such open spaces which the developer may use or permit to be used for car parking and other open and covered space and the developer shall have absolute right to deal with the same to which the purchaser hereby consents". 11. Mr. Mukherjee also pointed out that the expression “undivided shares” had been defined in paragraph 1.16 to mean the undivided share or interest in the premises to be determined by the Developer in its absolute discretion taking into account the total super built up area to be comprised in the unit agreed to be purchased by the Purchasers and the total constructed area in the building. 12. Mr. Mukherjee also referred to a copy of the Declaration dated 2nd April, 1990, made by the Developer having regard to the provisions of Section 10A of the West Bengal Apartment Ownership Act, 1972, and annexed to the copy of the Conveyances executed in favour of the Purchasers. Mr. Mukherjee pointed out that the expression “common parts” had been defined in paragraph 1.5 of the said Declaration in the manner following:- "1.5. COMMON PARTS shall mean and include lobbies, staircases, passage-way, lifts, lift shafts, sub-stations, pump room, machine room, and other facilities as may be specified by the developer required for maintenance and/or management of the building more fully described in the Second Schedule hereunder but shall not include the roof, terrace and other open and covered space which shall remain the exclusive property of the developer with the sole and absolute right to sell, transfer, let-out or dispose of the same". 13. 13. Reference was also made to paragraph 1.10 of the Declaration where the expression "unit/apartment/space" was defined to mean the space agreed to by the owner and wherever the Purchaser had acquired car parking space/garage, such car parking space/garage also. 14. Mr. Mukherjee lastly referred to a copy of the Conveyance executed by the Owners, the Developers and the Purchasers whereby an undivided proportionate share in the land comprised in premises No. 194A, Satin Sen Sarani had been transferred in favour of the Purchaser along with the unit in question. 15. Mr. Mukherjee submitted that from the several documents referred to above and the terms contained therein, which had been agreed to by the Purchasers, it would be amply clear that only the unit as agreed upon in the agreement for sale has been conveyed to the Purchasers together with the proportionate share in the common parts described therein and did not include the areas specifically excluded form the definition of common parts as agreed to by the Purchasers. 16. Mr. Mukherjee urged that the said fact had been misunderstood and misconstrued by the learned Court below while deciding the plaintiffs’ application for temporary injunction. Mr. Mukherjee submitted that the learned Court below also misconstrued the provisions of section 3(d) of the West Bengal Apartment Ownership Act, 1972, in relation to the common parts defined both in the agreement for sale as also in the Declaration under section 10A of the aforesaid Act. 17. Mr. Mukherjee urged that the plaintiffs, who were the individual purchasers of the different units, could not claim rights of ownership and or user in respect of portions of the premises which were neither covered by their various agreements for sale nor the Declaration made by the Owners under section 10A of the West Bengal Apartment Ownership Act, 1972. It was urged that on account of such misconstruction, the learned Court below had included the areas which were not covered by the expression "common parts" within the scope of the order of injunction passed on the plaintiffs' application for temporary injunction. Mr. It was urged that on account of such misconstruction, the learned Court below had included the areas which were not covered by the expression "common parts" within the scope of the order of injunction passed on the plaintiffs' application for temporary injunction. Mr. Mukherjee submitted that the learned Court below acted erroneously in restraining the appellants from selling, transferring or parting with possession of the ground floor space or from making any sort of construction therein which included the portion of the premises over which the plaintiffs have no right, title or interest in terms of the several agreements entered into between the Owners, the Developers and the plaintiffs and the Declaration made under section 10A of the Wests Bengal Apartment Ownership Act, 1972. 18. Mr. Mukherjee submitted that the defendants could not be restrained from raising any lawful construction on the basis of the building plan sanctioned for the premises in question. It was urged that the order of temporary injunction was liable to be set aside or suitably modified to exclude the portions to which the plaintiffs has no right, title or interest. 19. Appearing on behalf of the plaintiffs/respondents Nos. 1 to 20, Mr. Maharaj Sinha submitted that the order impugned in the appeal was confined only to the ground floor of the suit premises and that the sanctioned plan dated 25th July, 1984, was, in fact, the foundation of all the agreements between the parties and the purported declaration dated 2nd April, 1990, made by the Owners under section 10A of the West Bengal Apartment Ownership Act, 1972. Mr. Sinha submitted that the sanctioned plan could not be varied or modified without getting the same revised under the relevant provisions of the Calcutta Municipal Corporation Act, 1980 and the Building Rules made thereunder. Mr. Sinha submitted that in any event the sanctioned plan had expired on 24th July, 1989 and no work could, therefore, be carried on under the said plan, unless the same was renewed and/or revalidated. 20. Mr. Sinha also urged that Rule 60 of the Calcutta Municipal Corporation Building Rules, 1990, and section 404 of the Calcutta Municipal Corporation Act, 1980, provide for keeping open space and parking space in the building and do not permit any construction therein except for• the exceptions relating to open space which, however, did not apply to the suit premises. 21. Mr. 21. Mr. Sinha submitted that the sanctioned plan was for the construction of a ten-storeyed residential building consisting of sixty-five flats covering an area of 22 cottahs, 14 chittacks and 26 square feet and the same also made provision regarding the area to be kept open. Mr. Sinha submitted that as it would appear from the sanctioned plan the ground floor was kept open except for the purpose of construction of a security room, a reception room and office room and for providing car parking facilities. Mr. Sinha urged that the appellants/Developers had deliberately chosen not to make the aforesaid constructions but had allowed the sanctioned plan to expire on 24th July, 1989 with the ulterior motive of making wrongful and illegal construction therein and to dispose of the same for making wrongful gain for themselves and to cause loss and damage to the plaintiffs and other flat owners. 22. Mr. Sinha submitted that at the present moment, there was no scope for making any construction in the open space in the ground floor and the appellants were not legally entitled to raise any construction therein in violation of the sanctioned plan. 23. Mr. Sinha urged that since the Owners and the Developers had transferred all the flats constructed in the building to the respective flat owners having undivided and full ownership in the land and the amenities provided therein, the question of selling any portion of the open space in the ground floor did not arise more so in view of the requirement of the sanctioned plan to keep the same open for the use and enjoyment of the residents of the premises. 24. Mr. Sinha contended that the building had been constructed for residential purposes only and no further construction could be permitted for any other purpose. It was urged that the terms and conditions which were inconsistent with or in violation of the terms and conditions of the sanctioned plan were illegal and could not be enforced in law. Mr. Sinha submitted that the purported Declaration under section 10A of the West Bengal Apartment Ownership Act, 1972, was a fraud practised by the appellants/Developers on the flat owners and the terms and conditions set out therein which were prejudicial to the interest of the flat owners should be ignored and should not be given effect to. Mr. Sinha submitted that the purported Declaration under section 10A of the West Bengal Apartment Ownership Act, 1972, was a fraud practised by the appellants/Developers on the flat owners and the terms and conditions set out therein which were prejudicial to the interest of the flat owners should be ignored and should not be given effect to. It was contended that as in the case of the sanctioned plan any of the terms and conditions set out in the declaration which were inconsistent with or in violation of the sanctioned plan were illegal and could not be enforced in law and if the same were allowed to be given effect to it would seriously prejudice the rights of the flat owners in the premises. 25. Mr. Sinha submitted that the Declaration as made was not in Form A as required under section 10 of the 1972 Act and the same had not also been filed before the Competent Authority. The said Declaration was, therefore, unlawful and could not be given effect to. It was also submitted that a proper declaration was required to be made and an Association was required to be formed thereunder under the provisions of the West Bengal Apartment Ownership Act, 1972 and a specific prayer to that effect had been made in the plaint. 26. Mr. Sinha then submitted that even on the question of balance of convenience and inconvenience, such balance lay in favour of the plaintiffs and an injunction being granted till the disposal of the suit, inasmuch as, if the appellants/defendants were allowed to make any construction in the open space in the ground floor, which was required to be kept open in the sanctioned plan, and to sell any portion thereof, the plaintiffs and other flat owners would have to face much hardship and there would be multiplicity of proceedings in the event they succeeded in the suit, which could not be compensated by money and their existence in the premises would become miserable. It was urged that no harm or injury would, on the other hand, be caused to the plaintiffs if the order of injunction impugned in the appeal was allowed to continue. Mr. Sinha urged that the suit had been delayed for a long time as the defendants/appellants had not filed their written statement and had obtained extension from time to time for the said purpose. Mr. Sinha urged that the suit had been delayed for a long time as the defendants/appellants had not filed their written statement and had obtained extension from time to time for the said purpose. It was urged that the conduct of the appellants did not entitle them to challenge the order under appeal, and, in any case, since a prima facie case had also been made out on behalf of the plaintiffs/respondents regarding their ownership of the respective flats and their undivided proportionate shares in the land, no interference was called for with the order under appeal. 27. In support of his said submissions Mr. Sinha firstly referred to the decision of the Hon'ble Supreme Court in the case of Gangubai Bablya Chaudhary & Ors. vs. Sitaram Bhaichandra Sukhtankar & Ors., reported in A.I.R. 1983 S.C., page 472, wherein it was observed that when there was a dispute with regard to the title of the land and the plaintiffs and defendant's were found to be in possession about half portion of the disputed land, the Court would be justified in restraining the defendant from putting up construction on the entire land, inasmuch as, the situation might become irreversible by the time the dispute was decided in case injunction was not granted. 28. Mr. Sinha also referred to a Single Bench decision of this Court in the case of Ashoka Marketing Limited vs. Hanshree Apartment Owners Association, reported in 1985(2) C.L.J., page 1, which was also a case under the West Bengal Apartment Ownership Act, 1972. In the said case since the Declaration submitted under section 2, read with section 10 of the said Act did not mention about the construction of a third building in the premises and the appellant owners were let to believe that the apartments of the two buildings would cover the entire area of the premises in question, obligating the company not to reduce the area of open space of the two buildings, the Association had a prima facie case and they were, therefore, entitled to an injunction as prayed for. 29. Mr. Sinha urged that granting of interlocutory injunction is a purely equitable relief and having regard to the conduct of the appellants, it could not be said that they had come to the Court with clean hands. Mr. 29. Mr. Sinha urged that granting of interlocutory injunction is a purely equitable relief and having regard to the conduct of the appellants, it could not be said that they had come to the Court with clean hands. Mr. Sinha urged that the appellants had not performed their part of the contract as they had not constructed the security room, the reception room and the office room in the ground floor of the premises in question and, on the other hand, they were planning to make constructions on the open spaces in order to make wrongful gain for themselves and cause serious prejudice to the flat owners. 30. Mr. Sinha then referred to the definition of common areas and facilities in clause (d) of section 3 of the West Bengal Apartment Ownership Act, 1972 which reads as follows:- "(1) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building, (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the building, (3) the basements, cellars, yards, gardens, parking areas, shopping centres, schools, garages (building or apartment vacant or occupied by a tenant or any other person not being an owner, and transferred or proposed to be transferred to the Association of Apartment Owners) and storage spaces, (4) the premises for the lodging of janitors or persons employed for the management of the property, (5) installations of common services, such as, power, light, gas, hot and cold water, heating, refrigeration, air-conditioning, sewerage, etc., (6) the elevators, tanks, pumps, motors, compressors, pipes and ducts and in general all apparatus and installations existing for common use, (7) such other common facilities as may be specially provided for in the Declaration, (8) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use;" 31. Mr. Sinha urged that having regard to the said definition which included the basement, parking areas, garages etc., it was not open to the appellants to contend that the same had been excluded by agreement from the scope of the definition of "common parts" in the agreement and the purported Declaration under section 10A of the said Act. 32. Reference was lastly made to a decision of the Court of Appeal in the case of Fellowes and Anr. 32. Reference was lastly made to a decision of the Court of Appeal in the case of Fellowes and Anr. vs. Fisher, reported in 1975(2) All England Reporter page 829, wherein Lord Denning, Master of the Rolls, observed that in granting interlocutory injunction it was necessary to see whether a prima facie case had been made out and whether a serious question was required to be tried. It was also open to the Court to consider as to whether on balance of convenience interlocutory relief should be granted provided the claim of the party claiming such relief was neither frivolous nor vexatious. 33. Mr. Sinha earnestly urged that no interference was called for in the appeal and the same was liable to be dismissed. We have carefully considered the submissions made on behalf of the respective parties keeping in mind the fact that the suit is still to be heard. While, on the one hand, pending the final decision in the suit, the defendants should not be permitted to do anything in the suit premises which could prejudice the plaintiffs at the time of hearing of the suit, on the other hand, the defendants should not be prevented from doing any act which they are lawfully entitled to do. 34. There is no dispute that on the strength of separate agreements the plaintiffs/respondents acquired certain units in the building constructed by the appellants at premises No. 194A, Satin Sen Sarani, Calcutta. According to the plaintiffs/respondents, many of them have acquired car-parking space/garage in the premises in addition to the units acquired by them as mentioned in their agreements, while the remaining have chosen not to do so. 35. In the said agreements each unit has been identified in terms of the area comprising the said unit. Separate provision has also been made for unit holders to acquire car parking space/garage in the basement or in the open and covered spaces kept for such purpose. 36. 35. In the said agreements each unit has been identified in terms of the area comprising the said unit. Separate provision has also been made for unit holders to acquire car parking space/garage in the basement or in the open and covered spaces kept for such purpose. 36. The expression "Common Parts" has also been defined to include corridors, staircases, passage-ways, lifts, shafts, ducts and other facilities including water pump room, front space of lift, lift machine room, space occupied by water reservoir on ground floor, service area, electric room and whatsoever required for the maintenance and management of the building but specifically excludes the roof, terrace, basement car parking space and such open spaces which the Developer may use or permit to be used for car parking and other open or covered space and the Developer reserved to itself the absolute right to deal with the same to which the Purchaser consented. 37. The Declaration made in terms of section 10A of the West Bengal Apartment Ownership Act, 1972, also includes a similar definition. The definition of "common areas and facilities" in the aforesaid Act, however, includes basements, parking areas and garages. 38. In the instant case, the Purchasers were given an option to separately acquire car-parking space/garages and the same were not included within the definition of common parts in the Agreements entered into between the Owners, the Developer and the Purchasers, but, in fact, were specifically excluded. 39. The learned trial Court proceeded on the basis that the car-parking space formed part of the common space and observed that whether the plaintiffs have any right, title and interest over the common space or the space left in the ground floor would be decided at the final hearing of the suit. 40. It is no doubt true that the definition of "Common areas and facilities" in section 2 of the West Bengal Apartment Ownership Act, 1972, includes basements garages, but from the definition of "Common Parts" in the Agreement between the parties it prima facie appears that the parties agreed to exclude the roof, terrace and the car-parking spaces in the basement and ground-floor and other open spaces from the said definition and agreed that the Developer would have absolute right to deal with the same. 41. Of course, as pointed out by Mr. 41. Of course, as pointed out by Mr. Sinha, the said open spaces and areas could not be used for any purpose other than that indicated in the sanctioned Building Plan and no construction could be made in respect thereof which was not provided for in such plan. Furthermore, it was submitted by Mr. Sinha that the sanctioned Building Plan had also lapsed and had neither been revalidated nor had any fresh sanction been obtained by the Developers. 42. It is clear from the materials on record that some of the apartment owners have not separately acquired car-parking space/garage in addition to their respective units. As per the terms of the Agreements entered into between the parties, car-parking space/garage did not form part of the units acquired by the apartment owners, but were to be separately acquired by them. The apartment owners did not, therefore, become entitled to utilise the open spaces kept apart for car-parking/garage purposes, without acquiring the same by purchase in addition to their respective units. Similarly, the Developers cannot also make any construction on the open spaces unless permitted to do so on the basis of a valid sanctioned Building Plan or to deal with the same in any manner in deviation therefrom. 43. Having regard to the above, we are of the view that the order impugned in the appeal requires modification. We, accordingly, modify the order of the learned trial Court to the extent that the defendants/appellants shall remain restrained from making nay construction in the open space in the ground floor of the premises and the common areas without due legal sanction or to obstruct the use of the car-parking spaces and garages which have been acquired by some of the plaintiffs in addition to their units, in any manner whatsoever. The defendants/appellants will be entitled to utilise the open spaces in the ground-floor and the basement, which have not been acquired by the apartment owners, only for the purposes indicated in the sanctioned Building Plan and for no other purpose and such utilisation will be subject to the final result in the suit. 44. We make it clear that the views expressed by us are only for the purpose of the plaintiffs'/application for temporary injunction and should not in any way influence the hearing and disposal of the suit itself. 45. The appeal is disposed of accordingly. 44. We make it clear that the views expressed by us are only for the purpose of the plaintiffs'/application for temporary injunction and should not in any way influence the hearing and disposal of the suit itself. 45. The appeal is disposed of accordingly. There will be no order as to costs. 46. If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. G.C.De, J.: I agree. Impugned order modified.