BENGAL AMBUJA HOUSING DEVELOPMENT LIMITED Vs PRAMILA SANFUI (DEAD) .
Bench: T.S. THAKUR,V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-007209-007210 / 2015
Diary number: 42366 / 2014
Advocates: SACHIN PATIL Vs
Page 1
CAs @ SLP(C) Nos.5902-5903 OF 2015 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7209-7210 OF 2015 (Arising Out of SLP (C) Nos.5902-5903 of 2015)
BENGAL AMBUJA HOUSING DEVELOPMENT LTD. … APPELLANT
Vs. PRAMILA SANFUI AND ORS. …RESPONDENTS
WITH
CIVIL APPEAL NOS. 7211-7212 OF 2015 (Arising Out of SLP (C) Nos.5906-5907 of 2015)
WEST BENGAL HOUSING BOARD ……APPELLANT Vs.
PRAMILA SANFUI AND ORS. …RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J. Leave granted in all the Special Leave
Petitions.
Page 2
CAs @ SLP(C) Nos.5902-5903 OF 2015 2
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:
Page 3
CAs @ SLP(C) Nos.5902-5903 OF 2015 3
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 Bengal.
The appellant is the current owner of the suit
property in question in the present appeals. The
predecessor-in-interest of the appellant, late
Gangadas Pal was the owner of suit land measuring
20.184 acres of land. A suit for partition being
Title Suit No. 43 of 1956 was instituted in the
land adjacent to the said land among the co-owners
namely, Sanfui, Naskar, Mondal and Sardar family
in the year 1956 before the learned Civil Judge
(Senior Division), Alipore, the said suit was
renumbered subsequently as Title Suit No. 121 of
1962. Gangadas Pal was not a party to the said
suit at its inception. He was impleaded as
Defendant No. 54 vide order of the learned Trial
Court dated 14.08.1957. Gangadas Pal died in June
Page 4
CAs @ SLP(C) Nos.5902-5903 OF 2015 4
1958. One Mr. Ranjit Kumar Ganguly was appointed
as the Receiver over the said suit properties and
he took possession of the entire suit properties
on November 30, 1958. After Gangadas Pal died, the
defendant No.1 in the suit No. 121 of 1962, filed
an application before the learned Subordinate
Judge, Alipore, intimating that among others,
defendant no. 54 (Gangadas Pal) had died during
the pendency of the suit, following which the suit
had abated against them, as per the provisions of
Order XXII, Rules 3 and 4, Code of Civil
Procedure, 1908. The learned Subordinate Judge,
vide order and judgment dated 30.11.1973 dismissed
the entire suit under Order XXII of the Code of
Civil Procedure, 1908 holding that the suit had
abated as against the deceased defendants
(including Gangadas Pal) and the right to sue did
not survive as against the other surviving
defendants. The learned Subordinate Judge held as
under:
Page 5
CAs @ SLP(C) Nos.5902-5903 OF 2015 5
“There is authority to hold that no formal order of abatement need be made as a suit or appeal abates automatically if no application for substitution is made within the prescribed time, i.e. within ninety days from the date of death and not from the date of knowledge. In that view of the matter, the order of abatement as recorded above by order no. 337, dated 15.9.73 was a mere formality. Sub-Rule 3 of Rule 4 of Order 22 CPC provides that the suit shall abate as against the deceased defendant in case no application is made under Sub-Rule 1 within the time allowed by law. Abatement takes place by operation of law and it is this crystal clear that the suit has abated against the deceased defendant nos. 9, 39,54,55,57,60,62,63 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
Page 6
CAs @ SLP(C) Nos.5902-5903 OF 2015 6
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 addresses of the deceased defendants nos. 9,39,40,54,55,57,60,62 and 63 by 11.6.73. From order no. 330 dated 4.6.73, it is seen that the defendant no.1 complied wih the direction of the court, From all of these developments, it is palpably clear that the petitioners were in the know of the death of the defendants in question right from 28.2.73. At any rate when all particulars were furnished to them on 11.6.73, the petitioners ought to have filed the application for setting aside the abatement at least within 60 days from the date of abatement or order of the dismissal in terms of provisions of
Page 7
CAs @ SLP(C) Nos.5902-5903 OF 2015 7
articles 171 and 172 of the old Limitation Act. They filed the petition on 13.11.73 for the lapse of 90 days plus 60 days even the period is calculated, from 11.6.73.”
This order of abatement has attained finality as
no appeal has been preferred by the parties
against the same.
4. In the meanwhile, the land of late Gangadas Pal
was acquired by the State Government, and came to
be vested in them, vide order dated 16.09.1971
passed in Big Raiyat Case No.5 of 1967. In 1991,
the order of vesting was challenged by the heirs
of Gangadas Pal, by way of a Writ Petition C.O.
No. 11731 (W) of 1991. The learned single judge
allowed the Writ Petition and quashed the order of
vesting dated 16.09.1971. Aggrieved of the order
passed in the above Writ Petition, the State
Government preferred Writ Appeal before the
Hon’ble Division Bench against the decision of the
learned single judge. The learned Division Bench
dismissed the appeal and affirmed the decision of
Page 8
CAs @ SLP(C) Nos.5902-5903 OF 2015 8
the learned single judge, vide judgment and order
dated 18.04.1996. The State Government then
preferred Civil Appeal No. 442 of 1998 before this
Court, which was dismissed vide judgment and order
dated 16.04.2003 in the case of West Bengal
Government Employees (Food and Supplies)
Cooperative Housing Society Ltd. and Ors. v.
Sulekha Pal (Dey) & Ors. reported in (2003) 9 SCC
253, when this Court held as under: “21. So far as the case on hand is concerned, it is seen from the materials on record that effective, actual and physical possession of the properties appears to have continued with the intermediary in question and subsequently in the possession of his heirs and the Collector/Revenue Officer could not be said to have either dispossessed them or taken over physical or khas possession of the estate and 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
Page 9
CAs @ SLP(C) Nos.5902-5903 OF 2015 9
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 retention, cannot be said to suffer from any infirmity in law so as to call for our interference. As a matter of fact, it is seen from the materials placed on record that after the order of the learned Single Judge, on the respondents exercising their choice, an order dated 2.8.1994 came to be passed by the Revenue Officer allowing retention of 25 acres of agricultural land, 10.16 acres of non-agricultural land and 0.06 acres of homestead land as per "B" Schedule to the said proceedings and declaring that 27.95 acres of agricultural land and 0.14 acres of homestead land as per details contained in the "C" Schedule to the said proceedings stood vested in the State. This order, which appears to have been made subject to the result of the appeal has to be construed in that manner and the rights of parties thereunder could and ought to be only in terms of and subject to the modified order of the Division Bench and nothing more........ The vesting is total and complete once
Page 10
CAs @ SLP(C) Nos.5902-5903 OF 2015 10
Notification is issued under Section 4 and got published by the combined operation of Sections 4 and 5 of the Act and what is secured under Section 6 is the right to hold on to the possession, subject to the limits prescribed in the statute by option for retention of the same before khas possession of the properties have been taken over as envisaged under Section 10(3) of the Act.”
The ownership of the plot of land was thus
retained by the legal heirs of Gangadas Pal as
intermediaries as provided under Section 6 of the
West Bengal Estates Acquisition, Act 1953.
5. On 08.06.2006, the plaintiff-respondents
herein filed an application under Order XXXIX
Rules 1 and 2, Code of Civil Procedure, 1908, in
Title Suit No. 121 of 1962, seeking for grant of a
temporary injunction restraining the parties from
alienating, encumbering or creating third party
interest on the scheduled properties. The learned
Subordinate Judge, Alipore vide order dated
16.06.2006, allowed the application for temporary
injunction, and passed the purported consent order
even though the legal heirs of late Gangadas Pal
Page 11
CAs @ SLP(C) Nos.5902-5903 OF 2015 11
had not given their consent, directing the parties
to maintain status quo with respect to the suit
properties, and restrained them from selling,
transferring, alienating inter party or with any
third party or in any manner whatsoever from
changing the nature and character of the suit
property till disposal of the suit. 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
Page 12
CAs @ SLP(C) Nos.5902-5903 OF 2015 12
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 conveyance deeds the title and
possession of the said 20.184 acres of land from
the successors-in-interest of the late Gangadas
Pal. On 19.12.2009, one of the plaintiffs
(respondents herein) filed a petition before the
learned Subordinate Judge, Alipore, praying that
the Superintendent of Police, South 24 Paraganas
and the Officer in Charge of Purba Jadavpur be
directed to ensure compliance with the orders of
Page 13
CAs @ SLP(C) Nos.5902-5903 OF 2015 13
temporary injunction passed by the Trial Court on
16.06.2006 and 03.07.2006 in respect of the
property in dispute. The learned Subordinate Judge
vide order dated 13.01.2010, directed the
Superintendent of Police to see that the consent
order of temporary injunction granted by the Civil
Court in favour of the plaintiffs-respondents in
the original suit in respect of the suit
properties in dispute was maintained by the
parties. Aggrieved by the said order the Bengal
Ambuja Housing Development Ltd. (appellant herein)
filed an application, C.O. No. 709 of 2010 before
the Hon’ble High Court under Article 227 of the
Constitution of India questioning the correctness
of the same. The High Court, vide its judgment and
order dated 19.12.2012 dismissed the same. The
High Court held that the third party (appellant
Housing Board) had purchased the suit property lis
pendens, and that no permission was taken from the
court for the same. Thus, the provisions of
Page 14
CAs @ SLP(C) Nos.5902-5903 OF 2015 14
Section 52 of the Transfer of Property Act, 1882
would govern the transaction. The High Court,
while dismissing the application filed by the
Bengal Ambuja Housing Development Ltd., held as
under:
“The present mater is confined to the implementation of an order of injunction passed on consent. As recorded above, upon hearing both the parties, an order of status quo was passed directing the parties not to change the nature and character of the suit property. When the applicant tried to intervene in the said order of status quo, the steps for rendering police help for the learned Receiver was taken and I think since an order of status quo was passed in consent was prevailing, the learned Court was justified for giving necessary directions upon the concerned police authority to take appropriate steps for the preservation and protection of the suit property and the Court was also competent to give directions to the police authority to render possible help s that the possession taken by the present Receiver, namely, 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.
Page 15
CAs @ SLP(C) Nos.5902-5903 OF 2015 15
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 urging
various tenable grounds. The High Court by its
judgment and order dated 21.11.2014 has dismissed
Page 16
CAs @ SLP(C) Nos.5902-5903 OF 2015 16
the Review Application. The High Court held that
the grounds urged by the appellant in the Review
Petition did not warrant a review of its judgment
dated 19.12.2012. The High Court further held that
it must be considered that the judge who rendered
the judgment was no longer available with the
Court and that the liberty that a judge has to
correct himself upon his mistake being brought to
his notice, is not available to another judge
hearing the review and therefore the Review
Petition was rejected by passing the order which
is also impugned in this appeal. Hence the present
appeals were filed by the above appellants.
8. We have heard the learned senior counsel for
both the parties. On the basis of the factual
evidence on record produced before us, the
circumstances of the case and also in the light of
the rival legal contentions urged by the learned
senior counsel for both the parties, we have
Page 17
CAs @ SLP(C) Nos.5902-5903 OF 2015 17
broadly framed the following points which require
our attention and consideration:-
1. Whether the appeals filed by the appellant Housing Board are maintainable in view of the fact that the earlier SLP filed by the appellant Bengal Ambuja Housing Development Ltd. was dismissed with liberty accorded to it to file appropriate petition before the High Court?
2. Whether the order of temporary injunction dated 16.06.2006 passed by the learned Subordinate Judge, Alipore, passed in respect of the suit property without impleading the vendors and the appellant Housing Board, which had acquired the right, title, interest upon the same can be enforced against them through the jurisdictional police as has been granted by the learned Subordinate Judge, Alipore, though the sale deed in favour of the Board is not challenged by the plaintiffs-respondents and the said order can be enforced against the appellants through jurisdictional police by an order dated 13.01.2010 passed in the Title Suit?
3. Whether the inclusion of the property of the Housing Board to the suit instituted in the Civil Court by way of an amendment by the plaintiffs-respondents which property was
Page 18
CAs @ SLP(C) Nos.5902-5903 OF 2015 18
conferred upon the legal heirs of late Gangadas Pal as intermediary right holder under Section 6 of the West Bengal Acquisition of Estates Act, 1953 and the institution of suit for partition by the contesting 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 & Anr. v.
Pramila Sanfui & 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
Page 19
CAs @ SLP(C) Nos.5902-5903 OF 2015 19
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 & Ors.1, 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 to the petitioner to challenge the original order again in this Court after withdrawing the earlier appeal, reserving only a liberty in itself of seeking a review of the original order.”
10. The learned senior counsel also contends that
an appeal is not maintainable against the decision
of a court in a Review Petition. He places
reliance on the decision of this Court in the case
of Shanker Motiram Nale v. Shiolalsing Gannusing
Rajput2, wherein it has been held as under:
1 (2007) 12 SCC 549 2 (1994) 2 SCC 753
Page 20
CAs @ SLP(C) Nos.5902-5903 OF 2015 20
“This appeal is obviously incompetent. It is against an order of a Division Bench of the High Court rejecting the application for review of a judgment and decree passed by a learned Single Judge, who seems to have retired in the meantime. It is not against the basic judgment. Order 47 Rule 7 of CPC bars an appeal against the order of the court rejecting the review. On this basis, we reject the appeal.”
This case has been relied upon by this Court in
the cases of Vinod Kapoor v. State of Goa3 and M.N
Haider v. Kendriya Vidyalaya Sangathan4
11. The learned senior counsel on behalf of the
respondents submits that the earlier SLP filed by
Bengal Ambuja Housing Development Ltd. was
dismissed as withdrawn with liberty to file an
appropriate petition before the High Court to
review its order questioned in the earlier SLPs.
Since liberty was not given to it to challenge
that very same impugned order once again by filing
SLPs in the event of review petition being
dismissed, the appeals filed by Bengal Ambuja 3 (2012) 12 SCC 378 4 (2004) 13 SCC 677
Page 21
CAs @ SLP(C) Nos.5902-5903 OF 2015 21
Housing Development Ltd. once again challenging
the very same order is not legally permissible.
This contention has been very vehemently disputed
by learned Attorney General, Mr. Rohatgi, who
contends that the impugned order was not
challenged by the appellant Housing Board before
this Court, and that the interim order of
temporary injunction and order dated 13.01.2010
directing the jurisdictional police to enforce the
order of temporary injunction are not binding and
cannot be enforced against it, as it was not a
party to the original suit proceedings at any
point of time. It is further contended that it has
acquired valid interest and title upon the
property in dispute as the legal heirs of late
Gangadas Pal have executed the sale deed of the
property in its favour, which land stood retained
by them, in terms of the decision of this Court in
the case of Sulekha Pal referred to supra. Thus,
the order of temporary injunction passed in the
Page 22
CAs @ SLP(C) Nos.5902-5903 OF 2015 22
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.
Page 23
CAs @ SLP(C) Nos.5902-5903 OF 2015 23
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 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.
Answer to Point Nos.2 and 3
13. The learned Trial Court passed an order of
status quo on 16.06.2006, restraining the
defendants therein from selling, transferring,
creating third party interest or otherwise
disposing of the suit scheduled properties. The
said interim order of temporary injunction was
purportedly a consent order. On 07.07.2006, though
the legal heirs of late Gangadas Pal were not
brought on record, the learned Trial Court allowed
Page 24
CAs @ SLP(C) Nos.5902-5903 OF 2015 24
the amendment application dated 28.01.2003, to
amend the suit schedule properties.
14. Mr. Mukul Rohatgi, learned Attorney General
and Mr. Dushyant Dave, learned senior counsel
appearing on behalf of the appellants contend that
the High Court failed to consider that neither the
appellants herein nor the predecessor-in-interest
of the appellants were parties to the Suit No. 121
of 1962 before the learned Subordinate Judge,
Alipore, and thus, they were not aware of the
order of temporary injunction that had been passed
in the said suit proceedings. The learned senior
counsel further contend that the High Court erred
in not appreciating the fact that the said plot of
land was not a part of the suit scheduled property
originally. It appears to have been included in
the suit schedule as one of the properties after
the death of Ganga Das Pal and abatement of the
suit proceedings against him without bringing his
legal heirs on record. The status quo order passed
Page 25
CAs @ SLP(C) Nos.5902-5903 OF 2015 25
in the original suit sought to be enforced against
the appellants was passed after the suit was
abated against late Gangadas Pal and without
bringing his legal heirs on record. The original
suit had abated against him by order dated
30.11.1973, the suit being Title Suit No. 121 of
1962. Further, the land of late Gangadas Pal was
only included in the suit properties on
07.07.2006, that too without making the heirs of
late Gangadas Pal as parties to the said
proceedings, or informing them about the same. It
was further contended that by the learned senior
counsel that the High Court failed to appreciate
that neither the appellants, nor their
predecessors in title and interest (the legal
heirs 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
Page 26
CAs @ SLP(C) Nos.5902-5903 OF 2015 26
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
Page 27
CAs @ SLP(C) Nos.5902-5903 OF 2015 27
challenge any subsequent orders passed in the
Title Suit No. 121 of 1962. The property in
dispute, upon which the claim is made by them,
being a portion of the suit property is governed
by the principle of lis pendens as provided under
the Transfer of Property Act, 1882. The learned
senior counsel further contends that the High
Court has righty observed that no serious
prejudice has been occasioned to the appellants on
account of the order passed by the learned
Subordinate Judge to enforce the interim order of
temporary injunction through the jurisdictional
police. An order of status quo had been passed by
Trial Court as far back as 16.06.2006. The parties
were restrained from selling, transferring,
alienating or otherwise disposing of the suit
property to any third party in any manner
whatsoever. There was also an order of temporary
injunction restraining the parties from changing
the nature and character of the suit property. The
Page 28
CAs @ SLP(C) Nos.5902-5903 OF 2015 28
property in question being a part of the suit
property could not have been transferred in favour
of the appellant Housing Board during pendency of
the restrain order. Therefore, it is urged by the
learned senior counsel that no indulgence ought to
be shown to the appellants in any manner
whatsoever to interfere with the impugned orders
by this Court in exercise of its appellate
jurisdiction.
16. We have heard Mr. Mukul Rohatgi, learned
Attorney General and Mr. Dushyant Dave, the
learned senior counsel appearing on behalf of the
appellant and Mr. Sanjay Hegde and Mr. J.P. Cama,
the learned senior counsel appearing on behalf of
the respondents and have perused the documents
produced before us in Civil Appeals in support of
their respective claims to consider the rival
legal contentions urged on behalf of the parties
and answer the points that are framed in these
appeals.
Page 29
CAs @ SLP(C) Nos.5902-5903 OF 2015 29
17. We agree with the contentions advanced by the
learned senior counsel appearing on behalf of the
appellants. The original suit instituted by the
plaintiff-respondents against late Gangadas Pal
had abated vide order of the learned subordinate
judge, Alipore dated 30.11.1973. The said order
has attained finality as no appeal has been filed
questioning the correctness of the same. By order
dated 07.07.2006 passed by the learned Subordinate
Judge, the property in question of late Gangadas
Pal was added as part to the suit schedule
properties by way of an amendment to the plaint by
the time 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
Page 30
CAs @ SLP(C) Nos.5902-5903 OF 2015 30
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 suit schedule properties for
partition, and the learned Subordinate Judge erred
in allowing the application to amend the suit
Page 31
CAs @ SLP(C) Nos.5902-5903 OF 2015 31
schedule to include the property in question. The
learned Subordinate Judge has erred in passing
order of temporary injunction under Order XXXIX
Rules 1 and 2 of the Code of Civil Procedure,
1908, in respect of the property in question
after it was included to the suit schedule as
order of temporary injunction can be granted
against only the parties to the suit property.
Further, the grant of police protection without
impleading the appellants to the original suit
proceedings is also not legally permissible and
the therefore the said order is liable to be set
aside. The High Court ought to have considered the
relevant fact that the appellants were not parties
to the suit, and the suit had abated as against
late Gangadas Pal. Thus, the order of temporary
injunction passed by the learned Subordinate Judge
on 03.07.2006 does not apply to the land in
question which was sold to the appellant Housing
Board.
Page 32
CAs @ SLP(C) Nos.5902-5903 OF 2015 32
18. Further, in the instant case, the order of
temporary injunction dated 03.07.2006 was
purportedly granted by consent is also not
sustainable in law. The question of consent being
given by either the appellant Housing Board or the
predecessors in interest who are its vendors did
not arise as they were not parties to the said
suit. It is a well settled principle of law that
either temporary or permanent injunction can be
granted only against the parties to a suit.
Further the purported consent order in terms of
Order XXXIX of the Code of Civil Procedure is only
binding as against the parties to the suit. In
such a case, the order of the Subordinate Judge to
grant police protection against the appellant
Housing Board which is enjoying the property is
erroneous in law and is liable to be set aside.
19. The original owner in the instant case, late
Gangadas Pal was an intermediary in khas
possession of the land in question in terms of
Page 33
CAs @ SLP(C) Nos.5902-5903 OF 2015 33
Section 6 of the West Bengal Estates Acquisition
Act, 1953. Thus, the learned Subordinate Judge did
not have the jurisdiction to entertain any suit
with respect to the said property, in light of the
provision of Section 57B (2)(a), (b) and (c) of
the West Bengal Estates Acquisition Act, 1953,
which states as under:
“57B. Bar to jurisdiction of Civil Court in respect of certain matters.- XXX XXX XXX
(2) No 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
Page 34
CAs @ SLP(C) Nos.5902-5903 OF 2015 34
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 partition in view of the express provisions of
the West Bengal Estates Acquisition Act, 1953
which excludes the jurisdiction of the civil court
in respect of any rights in such estate as entry
in record of rights is published. In the instant
case, the names of the heirs of late Gangadas Pal
were included in the record of rights in pursuance
of the order passed in the Writ Petitions in
connection with the Big Raiyat Case No. 5 of 1967,
Page 35
CAs @ SLP(C) Nos.5902-5903 OF 2015 35
which order was affirmed by this Court in the case
of Sulekha Pal, referred to supra.
20. The amendment of plaint to include the suit
property of the heirs of late Gangadas Pal was
done in pursuance of the order dated 07.07.2006,
wherein the learned Subordinate Judge, Alipore
added the land in question which has been sold to
the appellant Housing Board, to the schedule of
suit lands in Title Suit No. 121 of 1962. The same
is erroneous in law and therefore, liable to be
set aside as the said order is not binding on the
appellant for the reasons stated supra.
Answer to Point No. 4
21. The order of temporary injunction passed in
favour of the plaintiffs-respondents is
accordingly set aside in so far as it relates to
the property of the appellant Housing Board is
concerned which property was included by way of an
amendment to the plaint.
Page 36
CAs @ SLP(C) Nos.5902-5903 OF 2015 36
22. At the end, it was brought to our notice by
Mr. Sanjay Hegde, the learned senior counsel
appearing on behalf of the Receiver that the
appellant Housing Board has entered into a Joint
Venture Settlement with Bengal Ambuja Housing
Development Ltd. without following the mandatory
procedure of inviting applications to participate
in the tender to get the leasehold rights for the
joint development of the property in question to
discharge its statutory obligation. It was further
contended by the learned senior counsel that in
not doing so, the action of the appellant Housing
Board has become arbitrary, unreasonable and
unfair as it amounts to conferring largesse upon
the appellant Bengal Ambuja Housing Development
Ltd. The learned senior counsel contended that
this is impermissible in law, as has been held in
a catena of cases by this Court in relation to the
property owned by the Central or State Government
or Statutory Boards or Corporations or Companies
Page 37
CAs @ SLP(C) Nos.5902-5903 OF 2015 37
owned by either the Central or State governments,
including the case of Ramana Dayaram Shetty v. The
International Airport Authority of India5, which
was relied upon in the more recent decision of
Akhil Bhartiya Upbhokta Congress v. State of
Madhya Pradesh6. 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
5 AIR 1979 SC 1628 6 (2011) 5 SCC 29
Page 38
CAs @ SLP(C) Nos.5902-5903 OF 2015 38
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 learned senior
counsel cannot be dealt with by us, as the same is
not in controversy in the present case before us.
The aggrieved parties are at liberty to seek the
above mentioned prayer in an appropriate
proceeding.
24. Since we have answered the points formulated in
these appeals in favour of the appellant Housing
Board by recording the reasons in the judgment, we
have to allow the appeals of the appellant Housing
Board. We pass the following order:
a) The appeals of the appellant Housing Board are allowed by holding that ex parte interim order of
Page 39
CAs @ SLP(C) Nos.5902-5903 OF 2015 39
temporary injunction passed on 16.06.2006 by the learned Subordinate Judge, Alipore in Title Suit No. 121 of 1962 in respect of the property in question purchased from the legal heirs of the late Gangadas Pal who are declared as intermediaries under Section 6 of the Act of 1953 and therefore the same are not binding on this appellant as it is not a party to the proceedings and the Civil Court did not have the jurisdiction to deal with the said property, as per Section 57 B (2) (a), (b) and (c) of the West Bengal Estates Acquisition Act of 1953.
b) Since the interim order of temporary injunction is not binding on the appellant Housing Board and cannot be operated against them, therefore the question of enforcing the same against the appellant Housing Board or its agents or any person claiming through it, through the jurisdictional police to help the plaintiffs-respondents as has been granted by the learned Subordinate
Page 40
CAs @ SLP(C) Nos.5902-5903 OF 2015 40
Judge by his orders dated 03.07.2006 and 13.01.2010 at the request of the plaintiffs-respondents, does not arise. c) In view of the appeals of the appellant Housing Board being allowed, the appeals filed by the Bengal Ambuja Housing Development Ltd. are disposed of as they are unnecessary. All Interlocutory Applications are disposed of.
…………………………………………………………J. [T.S. THAKUR]
…………………………………………………………J. [V. GOPALA GOWDA]
…………………………………………………………J. [R. BANUMATHI]
New Delhi, September 18, 2015