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2017 DIGILAW 764 (CAL)

Pawan Kumar Chetani v. Amar Nath Gupta

2017-09-11

ASHA ARORA, BISWANATH SOMADDER

body2017
JUDGMENT : Biswanath Somadder, J. 1. Let the affidavit of service filed in Court today be kept on record. By consent of the parties the appeal is treated as on day's list and taken up for consideration along with application for stay. The instant appeal arises out of a judgment and order dated 11th May, 2017, passed by the learned Single Judge in W.P. 5425 (W) of 2017 (Amar Nath Gupta & Ors. v. The Kolkata Municipal Corporation & Ors.). 2. The appellant before us was the private respondent No. 7 in the writ proceeding. 3. One Amar Nath Gupta and two others approached the writ Court challenging the action on the part of Kolkata Municipal Corporation in granting permission for construction of a gangway connecting one flat in a particular building with another adjacent building at premise No. 522, Parnasree Pally, Kolkata. The learned Single Judge considered the entire matter at length and also dealt with the meaning and interpretation of the word "building" in the context it appears under Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009 under the peculiar and admitted facts. The learned Single Judge while considering this aspect of the matter also took into consideration the statutory definition of the word "building" as defined under Section 2(5) of the Kolkata Municipal Corporation Act. The following is the interpretation given by the learned Single Judge in respect of Section 2(5) of the Kolkata Municipal Corporation Act and Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009: "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 meters in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, shamiana or tarpaulin 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." 4. 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. 5. 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. 5. It is further intended for proper management maintenance of upkeep of the housing promises [sic; read, premises] 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. 6. 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. 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." 7. 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." 7. 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. 8. 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 sub-serve 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. 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. The Corporation is directed to take steps for cancellation of the said building plan and all consequential steps required in this regard." 9. According to the learned Advocate appearing on behalf of the appellant, the learned Single Judge has - by way of interpretation - given a very restrictive meaning to the word "building" in the context it appears under Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009. 10. On the other hand, the learned Advocate appearing on behalf of the respondents/writ petitioners submits that the interpretation provided by the learned Single is based on the scheme of Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009, and as such, there is no palpable infirmity or perversity in the impugned judgment and order, which calls for an interference in an Intra-Court Mandamus Appeal. 11. We notice that the learned Single Judge has elaborately considered the two provisions of law, namely, Section 2(5) of the Kolkata Municipal Corporation Act, 1980, being the definition clause of the word "building" and Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009, which essentially is a Rule for the purpose of linking of two blocks. It is apparent from a. plain reading of Rule 73 that it begins with a non-obstinate clause. It is apparent from a. plain reading of Rule 73 that it begins with a non-obstinate clause. Such non-obstinate clause clearly takes care of Rules 62, 63, 64 and 65 of the Kolkata Municipal Corporation Building Rules, 2009, Rule 62 is in respect of minimum open spaces with respect to buildings for residential use; Rule 63 is in respect of minimum open spaces with respect to buildings for educational use; Rule 64 is in respect of minimum open spaces with respect to buildings for institutional, assembly, business, mercantile and mixed uses and Rule 65 is in respect of minimum open spaces with respect to industrial and storage buildings. We also notice that the learned Single Judge has opined that if a plain 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 that would unnecessarily invite an 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. In such a backdrop, the learned Single Judge has construed the meaning of the word "building". The learned Single Judge observed that the said word "building" in such a perspective should be interpreted in the sense that Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009 can only apply if both the buildings in its entirety is owned by a single person and not a part thereof. A statutory provision is required to be purposefully constructed and an absurd interpretation cannot be given only to sub-serve the interest of an individual who has obtained a plan from a statutory authority; in this case, the Kolkata Municipal Corporation, which is certainly not in accordance with law., 12. In such circumstances as stated above, we do not notice any palpable infirmity or perversity in the impugned judgment and order, which would warrant interference in an Intra-Court Mandamus Appeal. The appeal and the application for stay are liable to be dismissed and are accordingly dismissed. Asha Arora, J. : I agree.