TMI Blog2015 (9) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... develop the property by joint venture to provide residential accommodation to the economically weaker sections of the society, which is a laudable object of the Board under the statutory provisions of the West Bengal Housing Board Act, 1972. Thus, the aforesaid decisions of this Court upon which reliance has been placed by the learned senior Counsel appearing on behalf of some of the Plaintiffs-Respondents cannot be applied either against the Appellant Housing Board or its lessee or any other person claiming through it, as it was not a party to the proceedings and it did not challenge the said order earlier before this Court and therefore the Civil Appeals filed by it are maintainable. Order of temporary injunction - In view of the fact that the right, title and interest upon the disputed property has been settled in favour of the vendors of the Appellant Housing Board, who are the legal heirs of the late Gangadas Pal, who was an intermediary of the land in question in terms of Section 6 of the West Bengal Estates Acquisition Act, 1953, adding of the property in question to the suit schedule property in dispute cannot be the subject matter of partition in view of the express pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi R., JJ. JUDGMENT V. Gopala Gowda, J. 1. Leave granted in all the Special Leave Petitions. 2. The present appeals, filed separately, arise from the impugned judgment and order dated 21.11.2014 passed in R.V.W. No. 78 of 2013 and judgment and final order dated 19.12.2012 passed in C.O. No. 709/2010 by the High Court of judicature at Calcutta, whereby the High Court refused to interfere with the impugned judgments therein. The appeals arising out of S.L.P. (C) Nos. 5902-5903 of 2015 have been preferred by the Bengal Ambuja Housing Development Ltd., whereas the appeals arising out of S.L.P. (C) Nos. 5906-5907 of 2015 have been preferred by the West Bengal Housing Board. Both sets of appeals are being disposed of by this common judgment. 3. As the facts in both the appeals are common, for the sake of convenience, we refer to the facts of the appeals arising out of S.L.P. (C) Nos. 5906-5907 of 2015, which are stated in brief hereunder: The Appellant, West Bengal Housing Board (hereinafter the Housing Board ) is a statutory body constituted under the West Bengal Housing Board Act, 1972 with the objective of providing affordable housing in the State of West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, 63 in due course of law . Aggrieved by the same, the Plaintiffs therein filed Title Appeal No. 117 of 1974 before the learned District Judge, Alipore. The learned District Judge, vide order dated 20.09.1977 held that the order passed by learned Subordinate Judge was improper and not justified, and remanded the matter back to be considered afresh. The learned Civil Judge (Sr. Divn.) after considering the matter afresh held that the Plaintiffs had not made out any sufficient ground for the delay in filing of the application and refused to condone the delay and rejected the application of the Plaintiffs therein. The learned Civil Judge (Sr. Divn.) held as under: It is an established principal of law that the suit abates on and from the date of death of a party to the suit. From the order No. 315 dated 28.02.73 it is seen that the petition giving the information of the death of the Defendants in question. The Petitioners waited without any lawful exercise upon 4.4.73. On 4.4.73 they asked for letter particulars on the grounds mentioned in the Petition. By order No. 329 dated 18.3.73 the court directed the Defendant No. 1 to furnish particulars as regards the names and ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the rights comprised therein in the manner statutorily mandated and provided for Under Section 10(2) of the Act and Rule 7 of the Rules made thereunder. The learned Single Judge and the Division Bench of the High court recorded concurrently that khas possession continued with the intermediary and after him his heirs and we find nothing contra concretely to disturb the same. The professed taking over of possession seems to be a mere entry on paper but not in conformity with the mandatory procedure necessarily to be observed before such possession could be lawfully carried out. We are not concerned with the internal controversy between the Cooperative Housing Society of its claim to have been given with possession pursuant to the agreement of sale since for the purposes of the Act, it is the dispossession by the Collector/Revenue Officer in the manner envisaged in the statutory provisions under the Rules made thereunder that alone could get legitimatised for determining the rights of parties. Consequently, the order of the learned Single Judge as well as the order of the Division Bench, insofar as they sustained the right in the Respondents herein to express their choice of retent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit. On 03.07.2006, the learned Trial Court, at the instance of the Plaintiffs-Respondents directed the Officer in charge, Purba Jadavpur, Police Station to ensure compliance of the order dated 16.06.2006. On 07.07.2006, the learned Subordinate Judge, Alipore allowed the amendment application dated 28.01.2003, by which inter alia, the plot of land belonging to the heirs of Gangadas Pal was added to the suit schedule properties appended to the plaint. While passing the order, the learned Subordinate Judge held as under: On perusal of the instant applications under consideration and after hearing the submissions of the learned advocates court comes to the conclusion that the amendment is formal in nature and would not change the nature and character of the suit, neither would it prejudice any of the parties. Besides, it is even observed by the Court that, the instant suit cannot proceed without amendment be allowed. It is important to note at this stage that the heirs of late Gangadas Pal were not heard during the proceedings, as they were not parties to the suit. 6. On 19.08.2008, the Appellant Housing Board acquired ownership of the property by way of five registered con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sri Ashoke Ray be maintained. From the above facts, it is clear that the third-party/Petitioner herein had purchased the suit property lis pendens and that no permission was sought for from the Court to purchase the suit property. So, the principle of lis pendens as provided in Section 52 of the Transfer of Property Act shall govern the issue.... The learned Trial judge is justified to pass the impugned order. Record does not show that the Petitioners had obtained any permission from the Court to purchase a portion of the suit property. They had purchased a portion of the suit property at their own risk while the said suit was pending and the property was in the possession of the learned Receiver. 7. Aggrieved by the order, the Appellant Bengal Ambuja Housing Development Ltd. filed an S.L.P. (C) No. 8049 of 2013 before this Court challenging the legality of the said order, which petition was dismissed as withdrawn, by granting liberty to file the appropriate application before the High Court. The abovesaid Appellant then filed a Review Application, R.V.W. No. 78 of 2013 before the High Court of Calcutta to review the judgment and order passed in C.O. No. 709 of 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Respondents is barred by the provisions of Sections 57-B(2)(a), (b) and (c) of the Act of 1953? 4. What order? Answer to Point No. 1 9. Mr. J.P. Cama, the learned senior Counsel appearing on behalf of some of the Plaintiffs-Respondents strongly made the submission that since the earlier SLP of the Appellant-Bengal Ambuja Housing Development Ltd. was dismissed as withdrawn by an order of this Court dated 13.02.2013 in the case of Bengal Ambuja Housing Development Limited and Anr. v. Pramila Sanfui and Ors ., it is no longer open to the said Appellant to challenge the correctness of the original order passed by the High Court by way of filing other SLPs again. In support of the above legal submissions, the learned senior Counsel has placed reliance on the decision of this Court in the case of Kumaran Silk Trade (P.) Ltd. v. Devendra and Ors . (2007) 12 SCC 549, wherein it has been held as under: Since the petition for special leave to appeal has already been dismissed by this Court, it is no more open to the Petitioner to seek challenge to challenge the original order in this Court again by invoking Article 136 of the Constitution of India.... ...It is not open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the decision of this Court in the case of Sulekha Pal referred to supra. Thus, the order of temporary injunction passed in the original suit proceedings in respect of the property in dispute without impleading either the vendors of the Appellant Housing Board or the heirs of the late Gangadas Pal to the original suit proceedings cannot be said to have a binding effect on the Appellant Housing Board. Therefore, the learned Subordinate Judge ought to have taken this aspect of the matter into consideration while directing the Superintendent of Police, South 24 Paraganas to enforce the interim order of temporary injunction against Bengal Ambuja Housing Development Ltd., which is the lease holder as the Board has granted lease hold rights in its favour to develop the property by joint venture to provide residential accommodation to the economically weaker sections of the society, which is a laudable object of the Board under the statutory provisions of the West Bengal Housing Board Act, 1972. 12. Thus, the aforesaid decisions of this Court upon which reliance has been placed by the learned senior Counsel appearing on behalf of some of the Plaintiffs-Respondents cannot be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of late Gangadas Pal) upon the property involved in these proceedings were made parties to the suit and therefore the question of giving consent by them to the interim orders dated 16.06.2006 and 13.01.2010 does not and cannot arise, especially in light of the fact that the order of abatement of the original suit proceedings as against late Gangadas Pal had attained finality. It was further contended by Mr. Dushyant Dave, the learned senior Counsel appearing on behalf of the Appellant, Bengal Ambuja Housing Development Ltd. that the High Court had failed to consider the scope of the principle of lis pendens Under Section 52 of the Transfer of Property Act, 1882. The property which has been purchased by the Appellant Housing Board was not transferred by any party to the Title Suit No. 121 of 1962. The Information Slip issued by the Alipore Court makes it clear that the names of the heirs of late Gangadas Pal were not included as parties to the Title Suit No. 121 of 1962. 15. On the other hand, Mr. Sanjay Hegde, learned senior Counsel appearing on behalf of the Respondent-Receiver contends that the Appellants presently do not have the locus standi to challenge any subsequent orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his legal heirs had already acquired intermediary rights Under Section 6 of the West Bengal Estates Acquisition Act, 1953. The heirs of late Gangadas Pal were not made parties to the said Title Suit proceedings. On 03.07.2006, the learned subordinate judge passed an order granting temporary injunction restraining the parties to the suit from alienating or transferring the suit property. A perusal of Annexure P/10 which is the Information Slip dated 17.02.2010 issued by the office of the learned Trial Court in Title Suit No. 121 of 1962, makes it amply clear that the heirs of late Gangadas Pal were not made parties to the suit. The Appellant Housing Board purchased the land in question from the heirs of late Gangadas Pal on 19.08.2008, as is evidenced from the conveyance deed Annexure P-9 . The Appellant Housing Board was not a party to the Title Suit at any point of time. It has purchased the land in question from its owners. This property was included in the suit schedule properties by way of amendment to the plaint after an application was allowed by order dated 07.07.2006. The Plaintiffs-Respondents herein did not have any right to get the said land included as part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Civil Court shall entertain any suit or application concerning any land or any estate, or any right in such estate, if it relates to- (a) alteration of any entry in the record-of-rights finally published, revised, made, corrected or modified under any of the provisions of Chapter V, (b) a dispute involving determination of the question, either expressly or by implication, whether a raiyat, or an intermediary, is or is not entitled to retain under the provisions of this Act such land or estate or right in such estate, as the case may be, or (c) any matter which under any of the provisions of this Act is to be, or has already been, enquired into, decided, dealt with or determined by the State Government or any authority specified therein. In view of the fact that the right, title and interest upon the disputed property has been settled in favour of the vendors of the Appellant Housing Board, who are the legal heirs of the late Gangadas Pal, who was an intermediary of the land in question in terms of Section 6 of the West Bengal Estates Acquisition Act, 1953, adding of the property in question to the suit schedule property in dispute cannot be the subject matter of part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India AIR 1979 SC 1628, which was relied upon in the more recent decision of Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh (2011) 5 SCC 29. The learned senior Counsel further contends that this Court has laid down the law with reference to Article 14 of the Constitution of India keeping in view as to how to alienate public property by granting reasonable rates and granting agency of joint venture without following the mandatory procedure of inviting applications from the competent persons so that the persons may come forward and participate in the proceedings to give fair and better offer in the interest of public. That has not been done by the Appellant Housing Board in the instant case. Thus, public interest has been adversely affected as a result of the arbitrary and unreasonable action on the part of the Appellant Housing Board in granting leasehold rights for the joint development of the property in question. The learned senior Counsel has prayed that the Appellant Housing Board be directed to dispose of the property and make good the schemes in the interest of the beneficiaries and utilize the same for their benefit. 23. The above contention of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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