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2017 DIGILAW 459 (CAL)

Amar Nath Gupta v. Kolkata Municipal Corporation

2017-05-11

HARISH TANDON

body2017
JUDGMENT : Mr. Harish Tandon, J. The important and interesting point has arisen in the instant writ petition pertaining to the meaning and interpretation of the word "building" appearing in Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009 in the context of the peculiar and admitted facts. 2. Admittedly, the respondent no. 7 is the owner of flat no. B-3 at 3rd floor and top floor at premise no. 530, Parnasree Pally and is also the owner of the adjacent building situated at the northern side being premise no. 522, Parnasree Pally, Kolkata. Both the premises are distinct and separate and demarcated by the boundary walls. 3. The premises no. 530, Parnasree Pally, Kolkata is developed by the owner on the basis of a sanctioned plan dated August 4, 2004 by constructing four storied building. The said newly constructed building comprised of several flats earmarked by numbers and have been sold to the petitioners and the private respondents. Each of those persons are exclusively possessioning, occupying and owing separate flats along with common rights in the common areas and facilities. 4. The disputes cropped up when the respondent no. 7 applied before the Kolkata Municipal Corporation for granting permission to construct a gangway connecting the said flat being B-3 with adjacent building constructed at premise no. 522, Parnasree Pally, Kolkata. The Corporation granted such permission by approving the plan in this regard under Rule 73 of the said Rules. The petitioners being the owners of three respective flats have challenged the action of the Corporation in granting such permission and seeks an order for demolition of the gangway. 5. On the basis of the aforesaid admitted facts the learned Advocate appearing for the petitioners submits that Rule 73 of the said Rules does not contemplate the situation as existed in the present case and therefore the granting of permission is contrary to the spirit, object and the intention behind the incorporation of Rule 73 of the said Rules. It is, further submitted that West Bengal Apartment Ownership Act, 1972 defines apartment to mean the part of the property having a direct exit to the road, street or straightway or to a common area leading to such lane, street or straightway together with the undivided interest in the common area or facilities and includes a flat. It is, further submitted that West Bengal Apartment Ownership Act, 1972 defines apartment to mean the part of the property having a direct exit to the road, street or straightway or to a common area leading to such lane, street or straightway together with the undivided interest in the common area or facilities and includes a flat. The definition of a "building" under Section 3(c) of the said Act is expressive in the sense to mean a "building" containing two or more apartments or more than one building each being a complete unit or each containing two or more apartment comprised in the said property. The common areas and facilities are also defined in Section 3(d) which is comprehensive and imbibed within itself not only anything attached to the building or the other areas within the building but also easement rights and appurtenance belonging to the land and the building. 6. According to the petitioner, though the "building" is defined in Section 2(5) of the Kolkata Municipal Corporation Act to mean a structure constructed for whatsoever purpose and material and includes the foundation, plinth, walls, floors, roofs, chimneys, fixed platforms, verandas, balcony, cornice or projection or part of a building or anything affixed thereto or any wall (other than a boundary wall less than three metres in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, samiana or tarpaulin shelter. Such definition must be harmoniously interpreted with the object and purposes of the West Bengal Apartment Ownership Act, 1972. 7. It is further submitted that the user of the word "means" and "includes" in a definition clause is merely extensive and cannot be interpreted to destroy the words used therein and placed reliance upon a judgment of Supreme Court in case of Feroze N. Dotivala v. P.M. Wadhwani & Ors. reported in (2003) 1 SCC 433 . It is vehemently submitted that the respective deeds executed by the then owner at the time of sale of the respective flats have expressly indicated the common portion and the load bearing wall or anything fastened therein is commonly enjoyed by each and every owner of the respective flats and the construction of a gangway is not permissible and therefore the definition of building should be interpreted in the background of the above facts. 8. 8. The learned advocate appearing for the Corporation says that Rule 73 of the said Rules permits the construction of a gangway joining two adjacent buildings and since the petitioner satisfies such conditions, the permission was granted strictly in conformity thereof. It is further submitted that if the person satisfies the primary condition that he is the owner of two adjacent plots or the buildings, permission for construction of a gangway can be granted provided it does not obstruct the vehicles or fire vehicles and the minimum width should not be less than that of a staircase and not exceeding 3 metres at any place. It is, thus submitted that the definition of a building includes a portion thereof and therefore the petitioner satisfies the basic ingredients and the plan sanctioned by the Corporation cannot be said to be illegal and/or infirm. 9. The respondent no. 7 says that the gangway is constructed after taking permission from the association and the petitioners, who were in minority, have challenged the plan for construction of a gangway on untenable grounds. It is, further submitted that the construction of a gangway is not illegal and the permission was granted by the Corporation strictly in conformity of the Building Rules. It would be apposite to quote Section 2(5) and Rule 73, which run thus:- "Section 2(5) "Building" means a structure constructed for whatsoever purpose and of whatsoever materials and includes the foundation, plinth, walls, floors, roofs, chimneys, fixed platforms, verandas, balcony, cornice or projection or part of a building or anything affixed thereto or any wall (other than a boundary wall less than three metres in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, samiana or tarpulin shelter;" "73. Linking of two blocks- Notwithstanding anything contained in rules 62, 63, 64 and 65 if there are two adjacent plots or adjacent buildings belonging to the same owner, gangways between these two buildings may be permitted at any level subject to the condition that it does not obstruct movement of vehicles or fire vehicles, as the case may be, the minimum width of the gangway being not less than that of a stairway and not exceeding 3.00 m. at any place." 10. From combined reading of the aforesaid provisions an inspiration can be drawn from the bare reading thereof that the Corporation can grant permission to construct gangways between two buildings provided the conditions laid down therein is satisfied. I would venture to deal with the aforesaid aspect later as the interesting point is raised whether the West Bengal Apartment Ownership Act, 1972 has any manner of application in the present context. The Apartment Ownership Act, 1972 received the assent of the President and was published in an extraordinary gazette on 5th July, 1972. The said Act came in force on and from 7th June, 1973 vide notification no. 547HIV dated 06.06.1973. Section 2 of the Apartment Ownership Act provides that the said Act shall apply to every property having residential units or both residential or commercial units and sole owner or all owner or majority of the owners of every such property shall submit the same within the prescribed period to the provisions of this Act by duly executing and registering a declaration setting out particulars referred to in Section 10. Section 10 relates to the contents of a declaration and the disclosure of various facts in the prescribed form which can be amended in the manner as may be prescribed. Rule 3 of the West Bengal Ownership Rules, 1974 mandates the competent authority, who receives such declaration to record an order accepting the declaration by making endorsement on the body of the declaration testifying the same. The object for enacting the Apartment Ownership Act, 1972 is to provide the ownership of individual apartment in a building and to make it heritable and transferable and also to be assessed separately in respect of each individual apartment. The necessity of incorporation of such Act was felt because of the scarce availability of the land and need for additional housing block to cater the large section of the society. 11. It is further intended for proper management maintenance of upkeep of the housing promises the then prevalent mostly in the urban areas. The language used in Section 2 of the Apartment Ownership Act is clear, ambiguous and expressive that it is an optional provision. 11. It is further intended for proper management maintenance of upkeep of the housing promises the then prevalent mostly in the urban areas. The language used in Section 2 of the Apartment Ownership Act is clear, ambiguous and expressive that it is an optional provision. It is only when the owners or the majority of the owners of each such property files a declaration to submit to the provisions of the said Act, such Act shall give the rights, benefits and the liabilities provided under the said Act, provided the declaration is accepted by the competent authority by recording order in the body of the said declaration. The definition of "building" in the Apartment Ownership Act conveys a clear intention that it must be two or more apartments or more than one building, each having complete unit or each containing two or more apartments comprised to the same property. What appears from the aforesaid provisions that the Apartment Ownership Act does not automatically apply if a building is constructed containing more than one flats but can only apply if a declaration is filed in terms of the Section 2 of the said Act and not otherwise. This Court does not find any force in the submission of the petitioners taking shelter under the said Act. 12. Even if this Court finds that the provisions of the West Bengal Apartment Ownership Act, 1972 does not apply yet the moot question remains whether an owner of a flat in a building satisfies the definition of a building as well as the provisions contained under Rule 73 of the Building Rules to have the benefit of gangways between two buildings or a plot of land. The golden rule of interpretation of the statute is the voice of the statute are first understood in the natural, ordinary or popular sense and the phrases and sentences are construed according to their grammatical meaning and an exception to such Rule is that such interpretation may not lead to some absurdity and frustrates the context or the object of the statute. Any departure from the Rule of literal construction leads to an unwarranted extension or restriction of a meaning of words and may invite serious errors. The fairest manner for interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs so as to avoid the mischief. Any departure from the Rule of literal construction leads to an unwarranted extension or restriction of a meaning of words and may invite serious errors. The fairest manner for interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs so as to avoid the mischief. Where two interpretations are feasible and the one which advances the remedy and suppresses the mischief should be adopted in the object oriented approach. The heading or the titles prefixed to may be a useful tool for interpretation of those provisions but may not be a sole guiding factor if the language used in the Section is plain and simple and does not lead to any ambiguity. Yet, it is an effective tool of interpretation in harmonizing the Section and the other provisions of the statute and the reference in this regard can be made to a judgment of the Supreme Court in case of M/s Frick India Limited v. Union of India reported in AIR 1990 SC 689 in these words:- "8. It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. Sub-item (3) so construed is wide in its application and all parts of refrigerating and air-conditioning appliances and machines whether they are covered or not covered under sub-items (1) and (2) would be clearly covered under that sub-item. Therefore, whether the manufacturer supplies the refrigerating or air-conditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of Item 29-A." 13. Therefore, whether the manufacturer supplies the refrigerating or air-conditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of Item 29-A." 13. Though the definition of a building in Kolkata Municipal Corporation Act, 1980 is exhaustive and elaborate and imbibe within itself any projection or a part of a building or anything affixed thereto yet it has to be construed harmoniously with the object and purpose for incorporation of Rule 73 of the Building Rules, 2009. The title to the said Rule indicates the linkage of two blocks and permits two adjacent plots or adjacent buildings belonging to same owner to be connected with the gangways. There cannot be any ambiguity that individual flat in a composite building cannot be segregated or separated therefrom and is a part thereof. 14. At the first blush there is no difficulty in giving the plan and simple meaning of the word "building" appearing both in a definition clause as well as in the said Rule and gangway may be permitted joining two plots or the buildings belonging to the same owner. If plan and simple interpretation is given to the word "building", the flat owner of any adjoining plots in each side would be entitled to link the flat with their building of the adjacent plot and would unnecessarily invite the anomalous and chaotic situation. Even the flat owners of a building who owns a flat at the adjoining building will be entitled to link both flats by constructing a gangway. Therefore, the title or head-note affixed to Rule 73 is to be construed in the manner, which would subserve the object and the purpose and not to expose such provision to be misused. The linkage of two blocks connotes that two buildings adjacent to each other may be allowed to be linked by way of a gangway provided both the buildings are owned by the same persons. The respective deeds of each of the flat owners not only includes the foundational structure but also the load bearing wall and anything fastened to or constructed thereupon infringes the common right of the flat owners. The respective deeds of each of the flat owners not only includes the foundational structure but also the load bearing wall and anything fastened to or constructed thereupon infringes the common right of the flat owners. The restrictive meaning of the "building" in the above perspective should be adopted and be interpreted in the sense that Rule 73 of the said Rules can only apply if both the buildings in its entirety is owned by a single person and not a part thereof. 15. This Court, therefore, finds that the permission granted by the Corporation to construct a gangway is not in conformity with Rule 73 of the Building Rules, 2009. 16. The Corporation is directed to take steps for cancellation of the said building plan and all consequential steps required in this regard. 17. The writ petition is thus allowed. No order as to costs.