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2014 DIGILAW 448 (CAL)

Kalyan Biswas v. Kolkata Municipal Corporation

2014-05-15

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT The Court: By this petition the petitioner has prayed for a writ in the nature of Mandamus commanding the respondents to withdraw and cancel the order dated February 29, 2012 which has been annexed to the writ petition as Annexure P-8, a writ in the nature of Mandamus commanding the respondents to forthwith allow the relevant flat of the petitioner to be converted into freehold from leasehold and to allow mixed occupancy in respect of the same and for other reliefs. A project was started by the Kolkata Municipal Corporation (the Corporation, for short) at D. L. Khan Road, Kolkata. The brochure for such project specifically mentioned that the Corporation was to construct residential buildings and provide flats for lease of 99 years. The petitioner was allotted a flat on the fourth floor being Flat No. B 402 in terms of the closed auction conducted by the respondents authorities. A lease deed was executed by and between the Corporation and the petitioner on June 24, 2010. The deed inter alia provided that the lessee shall deliver peaceful and vacant possession of the demised flat within three months from the date of notice to be served upon him by the Corporation. Another brochure was issued by the Corporation for the same project proposing outright sale of 44 flats on ownership basis. According to the petitioner the Corporation had taken contrary stands inasmuch as on the one hand they were offering flats on lease and on the other they offered the same project on outright sale. According to the petitioner out of 44 flats 24 have been transferred into freehold from leasehold and have been sold outright to the respondents authorities and thus the nature of the flats in question was changed. The respondents also changed the residential status of the flats to that of mixed occupancy by selling certain units as offices including 7 of such units to Sahitya Academy. The allegation of the petitioner is that this had resulted in these flats to be unfit for residential purposes due to lack of proper environment. On November 9, 2010 the petitioner made a representation to the respondent no. 3 and requested him to permit conversion of the concerned flat into a freehold one. Since he had not heard anything from the respondents he made several representations. On November 9, 2010 the petitioner made a representation to the respondent no. 3 and requested him to permit conversion of the concerned flat into a freehold one. Since he had not heard anything from the respondents he made several representations. Since those did not produce any result the petitioner moved a writ petition in the year 2011 which was disposed of by a learned single judge of this court on December 16, 2011 by directing the respondent no. 3 or his delegate to consider the representations by passing a reasoned order within the time frame fixed by this court. Pursuant to the said order a hearing was granted by the respondents and by the order impugned the petitioner’s prayer was rejected on the ground that the members of the same family were not eligible for allotment of the flats in terms of the original brochure of allotment. It was further held that the Corporation might consider such conversion by offering an opportunity to the petitioner to opt for retention of a single flat of their choice on due assessment of value and surrender of the other flats. This order is under challenge in the present writ petition. According to the petitioner the authority had failed to consider the facts of the case in their proper perspective. The said order in the hindsight admits the fact that the premises concerned is a mixed occupancy one and as such the flats could be used either for residential or official purposes. The respondents themselves had changed the nature of the flats from leasehold to freehold and changed the status from residential to mixed occupancy. The petitioner has further alleged that the respondents have already sold three flats on freehold basis to three persons belonging to the same family and similar action has been taken by the respondents with regard to six flats in favour of one Mr. Dilip Sil in respect of certain flats. Thus according to the petitioner the actions taken by the respondent authority in the order impugned is against their own policy. The respondents have contested the writ petition by filing an affidavit-in-opposition. According to the answering respondents the moot point revolve round the fact that the lease deed was executed by and between the respondent and the petitioner on June 24, 2010. The respondents have contested the writ petition by filing an affidavit-in-opposition. According to the answering respondents the moot point revolve round the fact that the lease deed was executed by and between the respondent and the petitioner on June 24, 2010. According to the respondents the petitioner along with his wife entered into agreements for lease in respect of two flats. According to the brochure an individual applicant would get only one flat and an individual means and includes a family. As such the question of the acquisition of the flat by the petitioner and his wife does not arise. The prayer for conversion also could not be entertained because two members of the same family are not eligible for allotment of flats as per the original brochure of allotment. It appears that by the order impugned the authority had turned down the contentions of the petitioner on various counts. He has referred to the brochure for allotment which recognized the incidence of mixed occupancy since the allotment of flats was made to three categories of people. Sahitya Academy was an academy of letters which had prayed for allotment of flats for its office and allotment of flat to Sahitya Academy had not been made for any commercial use. According to the authority allotment of flat in favour of Sahitya Academy had enhanced the status of the location. It has been further observed that the question of allotment of two flats to the petitioner and his wife cannot really sustain the policy as envisaged in the brochure of allotment. It was clearly declared that an individual applicant would get only one flat. An individual means and includes a family. Therefore, acquisition of two flats by the petitioner and his wife hits the principle of equity. The authority further concluded that the intention of acquisition of flat by the petitioner was not for any residential purposes. The prayer for conversion of the flat from leasehold to freehold also was rejected as two members of the same family were not eligible for allotment of flats in terms of the original brochure for allotment. The petitioner has affirmed a supplementary affidavit during the pendency of the writ petition inter alia stating therein that a letter had been issued by the Assistant Assessor (Collector(s)) of the Corporation to the petitioner on April, 24, 2013. The petitioner has affirmed a supplementary affidavit during the pendency of the writ petition inter alia stating therein that a letter had been issued by the Assistant Assessor (Collector(s)) of the Corporation to the petitioner on April, 24, 2013. The said letter inter alia stated that the petitioner might complete the internal works of the flat and might allow the IT office to start functioning therefrom. After the commencement of the IT office the flat would be assessed for commercial use. From this the petitioner concluded that the respondents had acceded to the prayer of the petitioner. I have heard the learned advocates for the parties and perused the affidavits filed in court. I quite agree with Mr. Behani, the learned Sr. Counsel for the petitioner that parties to a lease deed are bound by the terms and conditions thereof. It is, however, the respondents who have changed the nature of the flats as well as their residential status. This becomes very clear from the order impugned which claims that from the brochure of allotment it was known to the applicants of the incidence of mixed occupancy as allotments were made in favour of three categories of people. It is not understood wherefrom the authority passing the order impugned concluded that an individual meant and included a family. An individual is always an individual. A family might include an individual but the revere is not generally true. That is the ground for rejecting the allotment of flats to the petitioner and his wife. The petitioner had given the specific instances of families who have been allotted more than one flat. As a matter of fact the respondents have controverted most of the allegations in the writ petition evasively and with indefinite words and as such the uncontroverted contentions made in the petition must be deemed to have been accepted by the respondents. There is also sufficient substance in the submission of the petitioner that once the respondents have decided to introduce outright sale and freehold system in addition to mixed occupancy they were required to offer the same benefits to the persons who had already taken the flats as leasehold land. There is also sufficient substance in the submission of the petitioner that once the respondents have decided to introduce outright sale and freehold system in addition to mixed occupancy they were required to offer the same benefits to the persons who had already taken the flats as leasehold land. The learned advocate appearing for the respondents argued that Article 14 has no negative application and as such even if any flat was allotted in favour of anybody else in violation of the stipulations contained in the brochure the petitioner cannot take any advantage of the same. This, however, has no special application to the facts of the present case. The petitioner has referred to the relevant provisions of the Universal Declaration of Human Rights as well as the International Covenants of Civil and Political Rights, 1966. The law prohibits discrimination and guarantees all persons a protection against discrimination on any ground such as race, colour, sex, language etc. That apart, unless the respondents take effective steps in correcting the wrong allotment of flats merely quoting the accepted principle of law that Article 14 does not operate negatively is an unacceptable defence. Unless the wrong is remedied or steps are taken to that effect the presumption will be that the authorities deliberately indulged in acts of discrimination. Thus, I find sufficient merit in the submission of the writ petitioner. The order impugned in the writ petition is set aside and quashed and the respondents are directed to allow the flat in question to be converted into a freehold one within a period of eight weeks from the date of communication of the order. The writ petition is allowed. There shall, however, be no order as to costs.