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2019 DIGILAW 536 (CAL)

Manab Paul v. State of West Bengal

2019-04-26

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. The writ petitioner is a Developer. A power of Attorney was given to him by the respondent No. 7 who is the owner of a plot of land within Kolkata Municipal Corporation area, to be specific in Jadavpur. By the general power of attorney which was registered in the year 2009 the owner of the plot of land gave the petitioner some powers for development of the property by construction of a multistoried building. Originally the plot of land was owned by the respondent No. 7 and her mother; her mother died in the year 2016. When the writ application is filed, that is in the year 2017, the respondent No. 7 became the sole owner of the said plot of land. However, the power of attorney was given to the writ petitioner/developer in the year 2009 only by the respondent No. 7 and not by her mother. Subsequently due to some disputes the respondent No. 7 cancelled the said registered power of attorney by a deed of cancellation which was executed and registered on 17th March, 2010. Thereafter, the respondent No. 7 entered into an agreement with another developer, who is the respondent No. 8 in the writ application for development of the said property being the plot of land. 2. The writ petitioner has alleged that after getting the power of attorney in the year 2009 he took some steps for development. For taking the preliminary steps for development of the property huge amount of money was spent by him. He spent the money though no development agreement was signed between the writ petitioner and the respondent No. 7 and her mother. The writ petitioner/ Developer spent the money solely by oral assurances given by respondent No. 7 and her mother about entering into the development agreement. 3. According to the writ petitioner on 10th April, 2010 he got a hint that the respondent No. 7 might have revoked the general power of attorney given to him. It does not appear from the writ petition or from annexures thereto that the writ petitioner made any further enquiry at that time about such revocation. 3. According to the writ petitioner on 10th April, 2010 he got a hint that the respondent No. 7 might have revoked the general power of attorney given to him. It does not appear from the writ petition or from annexures thereto that the writ petitioner made any further enquiry at that time about such revocation. As the relationship between the writ petitioner and the respondent No. 7 and her mother became sour the writ petitioner did not keep in touch with them i.e. the owners of the plot of land and after the death of the mother of respondent No. 7 in the year 2016 he went to inspect the property on 17th February, 2017 for commencing construction work and to meet the respondent No. 7 when he found that the respondent No. 7 had already given power of attorney to another developer for developing suit property and entered into a joint venture agreement. The writ petitioner in the year 2017 filed a title suit being TS No. 595 of 2017 in the Court of Learned 1st Civil Judge (Junior Division) at Alipore, praying decree for declaration and permanent injunction. In the said suit he prayed for declaration that the deed of revocation of the general power of attorney which was given to him was not binding on him, the registered joint venture agreement entered by and between the respondent No. 7 and the other developer being the respondent No. 8 is void ab-initio, illegal and inoperative and further for a declaration that the registered general power of attorney executed by the respondent No. 7 in favour of the new developer i.e. the respondent No. 8 dated 16th March 2016 is also void ab-initio, illegal, in etc. He prayed for further declaration that he has the absolutely full right to act as lawfully constituted attorney of the respondent No. 7. The respondent No. 7 had filed a suit against him after cancellation of the power of attorney which was dismissed. He also wrote a letter to KMC for taking steps against construction of the building to which KMC has not taken any steps. 4. Mainly the above are the facts of the case made out in the writ application and as appears from the annexures thereto. 5. He also wrote a letter to KMC for taking steps against construction of the building to which KMC has not taken any steps. 4. Mainly the above are the facts of the case made out in the writ application and as appears from the annexures thereto. 5. The respondent No. 7 i.e. owner of the plot of land and the respondent No. 8 i.e. the new developer with whom the respondent No. 7 has entered into a development agreement in respect of her plot of land have filed their affidavits-in-opposition. 6. From the affidavit-in-opposition of the respondent No. 7. It is found that when the writ petitioner did not take any step for development of the property the registered power of attorney executed in his favour was revoked of 17th March, 2010 by another registered instrument which was intimated to the writ petitioner. She also filed a suit praying certain reliefs in respect of the said power of attorney which, she realized later, was not required to be filed and she did not proceed with the said suit against the writ petitioner. 7. The respondent No. 8 in his affidavit-in-opposition denied and disputed the allegations made against him by the writ petitioner and stated that he entered into a joint venture agreement for development of plot of land and the respondent No. 7 and her mother executed a general power of attorney in favour of the new developer being the respondent No. 8. 8. The writ petitioner has filed affidavit-in-reply to the affidavit-in-opposition of the respondent No. 8 i.e. the new developer. 9. On perusal of the writ application, the annexures made to the writ application and the affidavits exchanged between the parties and after considering the submissions made by the parties it is found that the respondent No. 7 being the owner of the plot of the land filed a suit praying certain reliefs in respect of the power of attorney given to the writ petitioner and the suit was registered as TS No. 1377 of 2011 before the 1st Civil Judge (Junior Division) at Alipore. In the plaint of the said suit the revocation of the power of attorney of the respondent No. 7 by registered instrument dated 17.03.2010 was specifically mentioned (Vide paragraph 15 of the plaint of the said suit); in the said suit the writ petitioner entered appearance on June 22, 2012 and prayed for filing written statement which is found from order No 6 of the said suit (at page 69 of the writ application). 10. Thus it is clear that it was within the knowledge of the petitioner from the year 2012 that the power of attorney given to him was revoked by a registered instrument. After nearly 6 years from the date of such knowledge of revocation of the power of attorney the writ petitioner filed his suit being TS No. 595 of 2017 before the Court of 1st Civil Judge (Junior Division) at Aliopore. The declarations prayed for in the said suit by the writ petitioner have already been mentioned hereinabove. 11. As this Court is not adjudicating the suit, no comment is being made in respect of the silence maintained by the writ petitioner for 6 years despite knowledge of cancellation of power of attorney and approaching the suit Court praying relief in respect of the cancellation of power of attorney after 6 years from the date of cancelation. The suit Court will decide whether this can be done or not. 12. The plaint filed by the writ petitioner in the above suit (T.S. 595 of 2017) has been annexed in the writ application and part of it from paragraph 9 is required to be reproduced herein below: "The Defendant Nos. 1 and as her mother, once proposed to the plaintiff, to take immediate steps for development of the said suit property and to construct a multistoried building over the Schedule suit property for commercial exploitation with the object of getting a flat as Owners' Allocation with all amenities. But the plaintiff instantly did not take such step, as because the plaintiff did not want to hurry up to that effect". 13. In paragraph 13 of the said plaint the plaintiff has stated that as he was engaged with his other projects he could not give time for sorting out the differences between him and the owners of the plot of land. 14. 13. In paragraph 13 of the said plaint the plaintiff has stated that as he was engaged with his other projects he could not give time for sorting out the differences between him and the owners of the plot of land. 14. From paragraph 20 of the plaint it is found that the plaintiff went to the plot of land for taking step to commence the work of construction in the year 2017 i.e. after 7 years from the time of revocation of the power of attorney. 15. It has already been noted that from June 22, 2012 the petitioner knew that the power of attorney given to him had been revoked. 16. Therefore, it appears that despite having knowledge about revocation of the power of attorney in the year 2012 he went to the plot of land for commencing work on 18th February 2017. On that date he clearly did not have any power to take step whatsoever in respect of the plot of land of the petitioner. Such power was ceased with effect from 17th March 2010 on revocation of the power of attorney. 17. In the present writ application the petitioner by making Kolkata Municipal Corporation (KMC, in short) a party respondent has prayed that KMC should be directed to take immediate steps for investigation and/or enquiry on the basis of the complaint made by the petitioner to KMC by a letter dated on 26th May, 2017 as to such construction. He has also prayed before this Court for a direction upon KMC to issue notice upon the respondent Nos. 7 and 8 to stop work. 18. In the writ application no pleading is found as to why the KMC has to interfere in the matter. A bald allegation like illegal construction, in the facts and circumstances of the case, cannot supply cause of action to the petitioner. In his letter dated 26th May 2017 written by the petitioner's Learned Advocate, nothing is found for activating KMC. It is also not understood how the petitioner becomes a person aggrieved in respect of the present development agreement on the plot of land owned by respondent No. 7. At one point of time a power of attorney was given by the owner of the land to the writ petitioner. It is also not understood how the petitioner becomes a person aggrieved in respect of the present development agreement on the plot of land owned by respondent No. 7. At one point of time a power of attorney was given by the owner of the land to the writ petitioner. In the year of 2012 it has been revoked; from the date of revocation the petitioner has no relationship either with the owner of the land being respondent No. 7 or with the plot of the land in question. The power of attorney in favour of the plaintiff was revoked in 2012 and he has filed the suit in 2017 i.e. after 5 years or so from revocation. It has been admitted by the writ petitioner that no development agreement was entered into between the petitioner and the owners of the land. 19. There is absolutely no pleading in the writ application as to how the writ petitioner is aggrieved by the development of the plot of land of the respondent No. 7 by respondent No. 8 and how and why he becomes aggrieved if no step is taken by KMC in respect of his allegation. From the letter sent to KMC on behalf of the petitioner nothing has been stated as to how the acts, rules and regulations of KMC are being violated by the respondent No. 7 and 8 and how the petitioner is aggrieved. As his letter discloses no grievance against KMC it, naturally has not given any importance to the letter. 20. From the perusal of the letter dated 26th May, 2015 sent to KMC I have not found any material facts or necessary particulars in the said letter for which KMC can give any importance to the said letter. The letter on behalf of the petitioner to KMC is wholly meritless and I find that KMC has not committed any mistake by ignoring such a letter without any material facts as to the construction and any necessary particular as to the construction. 21. The petitioner has not been able to show the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him for not giving any importance to his letter dated 26th May, 2015 by KMC. Therefore, the petitioner is not at all a person aggrieved and he cannot move this writ application. 22. Therefore, the petitioner is not at all a person aggrieved and he cannot move this writ application. 22. The petitioner relied upon paragraph 42 and 43 of a judgment reported in (Ashok Kumar Jaiswal Versus Ashim Kumar Kar, 2014 1 HCC(Cal) 56). It is wholly incomprehensible as to why this two paragraphs have been relied upon by the petitioner when there is no development agreement between the petitioner and the respondent No. 7 of the writ application as has been indicated above. The said paragraph 42 and 43 deals with that "development agreement" and its incident in the backdrop of specific performance. When admittedly there is no development agreement between the petitioner and Respondent No. 7 this judgment is wholly inapplicable in the petitioner's case. 23. It appears that as the owner of the plot of land have selected another developer after legally revoking the power of attorney about which the writ petitioner had knowledge from the year 2012 as has been stated above, the writ petitioner as a counter blast has filed this writ application. From the affidavit-in-opposition of the respondent No. 7 it is found that the writ petitioner tried to get an injunction under order 39 rule 1 and 2 of Code of Civil Procedure read with Section 151 thereof which was rejected on 3rd May, 2017 and the present writ application has been filed thereafter on 17th July, 2017 urging KMC to take steps. 24. I hold that the whole effort of the writ petitioner in filing the writ application is mischievous, ill motived and he is guilty of abuse of the process of Court. 25. As I am holding that the petitioner as guilty of abuse of process of Court it is required to state when a party to a litigation is held to be guilty of abuse of process of Court. 26. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases: (1) Gaining an unfair advantage by the use of a rule of procedure. (2) Contempt of the authority of the Court by a party or stranger. (3) Fraud or collusion in Court proceedings as between parties. (4) Retention of a benefit wrongly received. (5) Resorting to and encouraging multiplicity of proceedings. (6) Circumventing of law by indirect means. (7) Presence of witness during examination of previous witness. (2) Contempt of the authority of the Court by a party or stranger. (3) Fraud or collusion in Court proceedings as between parties. (4) Retention of a benefit wrongly received. (5) Resorting to and encouraging multiplicity of proceedings. (6) Circumventing of law by indirect means. (7) Presence of witness during examination of previous witness. (8) Institution vexatious, obstructive or dilatory actions. (9) Introduction of scandalous or objectionable matter in proceedings. (10) Executing a decree manifestly at variance with its purpose and intent. (11) Institution of a suit by a puppet plaintiff. (12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc. 27. The above are only some of the instances, where a party may be said to be guilty of committing abuse of the process of Court. (Ranipet Municipality etc. Versus M. Shamsheerkhan, (1997) 2 LW 761 (Madras). The petitioner has instituted, by this writ application a vexatious action. 28. I do not find any merit in the writ application. 29. The writ application is liable to be dismissed with costs on the petitioner. I impose a cost of Rs. 20 thousand upon the writ petitioner to be paid to the West Bengal State Legal Services Authority within 45 days from the date of delivery of this judgment and to deposit the document in original showing such payment, with the office of the Registrar General for keeping the same with the records of the case. 30. The writ application is dismissed with costs.