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2008 DIGILAW 484 (GAU)

Shyam Sundar Agarwala v. State of Assam

2008-07-02

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2008
JUDGMENT J. Chelameswar, J. 1. This is an application seeking review of the judgment in WP(C) No. 2747/2006 dated 28.7.2006. 2. By the said judgment three writ petitions [WP(C) Nos. 5146/02, 5018/02 and 2747/06] were disposed of. While WP(C) Nos. 5018 a: c 2747/06 were dismissed the WP(C) No. 5146/02 was partially allowed. 3. While the said two writ petitions, which were dismissed, were filed by M/s. Priyanka Estate International Pvt. Ltd. the details of which we are not concerned for the present, the WP(C) No. 5146/02 was filed by four persons challenging the action of the respondents therein, the Gauhati Municipal Corporation and Ors. in granting the permission for construction of a multi storied building in favour of the abovementioned Priyanka Estate International Pvt. Ltd. praying for demolition of the illegal construction made by the abovementioned Priyanka Estate International Pvt. Ltd. on the ground that the permission was given in violation of the building bye-laws of the Gauhati Municipal Corporation as well as the Gauhati Metropolitan Development Authority and also a certain portion of the construction was made without any permission whatsoever. 4. Division Bench of this Court by the judgment under review partially allowed the abovementioned WP(C) No. 5146/02 the relevant portion of which reads as follows: 56. In view of the aforesaid discussions, we are of the view that as the builder/petitioners do not have any permission and no plan for construction of the part of the 5th floor and above has been approved by any competent authority, the stop construction notice as well as the order of demolition were rightly passed by the GMC and GMDA respectively, therefore, the same do not require any interference in the hands of this Court. However, as the learned Additional Advocate General as well as the learned Counsel for the GMDA and GMC authority have submitted that the notice as well as the demolition order relates to the part of the 5th floor and above, and keeping in view the fact that no structural plan for that part of the construction has been approved by any competent authority and no construction beyond 76 ft in height can be allowed by the side of the road in question, as per the bye-law, and also keeping in view the fact that permission for construction and also the structural plan was approved by the GMC authority for construction up to part of 5th floor, it is made clear that the demolition order shall be confined to part of the 5th floor and above thereon only. It can be seen from the above that a part of the construction, insofar as the 5th floor of the building is concerned, is illegal and this Court at para 53 of the said judgment held as follows: 53....The builder in spite of such orders even continued to make construction thereafter also by giving a deaf year to the various notices as well as the said orders of demolition. The building knew that he made the construction from part of the 5th floor and above without there being any approved plan for that purpose and he having continued to make construction in spite of such notices and orders has to face the consequence and if necessary to compensate the persons who have purchased the flat in the said building, in the event of initiation of any proceeding against the builder/petitioner by such purchaser. The action on the part of the builder in making such illegal construction cannot be condoned and is to be dealt with firm hand. 5. The applicant herein is a purchaser of that part of the 5th floor which was found to be unauthorized construction and, therefore, the present application. 6. The action on the part of the builder in making such illegal construction cannot be condoned and is to be dealt with firm hand. 5. The applicant herein is a purchaser of that part of the 5th floor which was found to be unauthorized construction and, therefore, the present application. 6. Though a number of grounds are raised in an attempt to establish that the judgment under review calls for a re-examination, we do not propose to examine those various grounds for the following reasons: The fact that a portion of the 5th floor of the building in dispute and the next higher floors are illegal construction without any appropriate sanction from the municipal authorities is concluded by the judgment under review. The judgment under review is rendered in a writ petition filed in the year 2002 wherein the legality of the construction was the issue involved. The applicant purchased that part of the 5th floor which was found to be unauthorized construction admittedly on 18-4-2005, in other words, during the pendency of the litigation. Therefore, on a principle analogous to the principle contained under Section 52 of the Transfer of Property Act the applicant, in our view, is debarred from raising the correctness of the decision under review. We say analogous to the principle contained under Section 52of the Transfer of Property Act because it was argued by Mr. D.K. Misra, learned senior Counsel for the applicant that the benefit of the principle under Section 52 of the Transfer of Property Act is confined only to the parties to the civil suit where each of the parties set up a conflicting claim and on the specific interest in the subject-matter of the dispute, since the respondent authorities herein do not and cannot have any personal claim in the property, that is the subject-matter of dispute in the writ petition, the principle under Section 52 of the Transfer of Property Act cannot be applied to debar the applicant herein from seeking the review. We do not propose to examine the applicability of Section 52 of the Transfer of Property Act to the facts of the case but shall presume that the submission of Mr. Misra to be same in law. Still the present application in our view is required to be rejected. We do not propose to examine the applicability of Section 52 of the Transfer of Property Act to the facts of the case but shall presume that the submission of Mr. Misra to be same in law. Still the present application in our view is required to be rejected. We reject the submission as the legislative policy behind Section 52 of the Transfer of Property Act is not so much to confer any right on the disputing parties to a civil suit but is a matter of public policy to avoid multiplicity of litigation. 7. In our view Section 52 of the Transfer of Property Act is an aspect of the principles of res judicata contained under Section 11 of the CPC but more specific in the context of transfer of property. In our view the same principle based on public policy should apply even to proceedings in public law. We, therefore, see no reason to go into the merits of the review application. The same is, therefore, dismissed. Application dismissed.