F.M.A. 1218 of 2013 and C.A.N. 4489 of 2013. Case: Sanjay Budhia Family Trust & Ors. Vs Tripura Enclave Residents Welfare Association & Ors.. High Court of Calcutta (India)
| Case Number | F.M.A. 1218 of 2013 and C.A.N. 4489 of 2013 |
| Counsel | For Appellant: Mr. Shaktinath Mukherjee, Mr. S.P. Roy Chowdhury, Mr. Probal Mukherjee, Mr. Debanjan Mandal, Mr. Biswajit Kumar, Ms. Shruti Swaika and Mr. Sudha Satva Banerjee, Advs. and For Respondents: Mr. Pratap Chatterjee, Mr. Abhrajit Mitra, Mr. Jishnu Chowdhury, Mr. M.M. Chandra, Mr. Shouoovik Roy, Mr. C. Gupta, Mr. Saptangshu Basu and Mr.... |
| Judges | T. K. Dutt and Dr. Mrinal Kanti Chaudhuri, JJ. |
| Issue | Constitution of India - Article 300A; Kolkata Municipal Corporation Act, 1980, (West Bengal) - Section 416; Societies Registration Act, 1860 - Section 4; West Bengal Societies Registration Act, 1961 - Sections 4, 5, 6, 7, 8, 9, 9(1), 9(2), 9(4) |
| Judgement Date | May 14, 2014 |
| Court | High Court of Calcutta (India) |
Judgment:
Dr. Mrinal Kanti Chaudhuri, J.
1. This appeal is preferred by the defendant Nos. 1 and 2 in Title Suit No. 6162 of 2012 against the temporary injunction order dated 20th February, 2013 passed by learned Civil Judge (Senior Division), 2nd court at Alipore.
2. The respondents being the plaintiffs instituted the aforesaid Title Suit praying for declaration that no part of the first floor of the building namely Tripura Enclave described in the schedule can be used by the appellants/defendant Nos. 1 and 2 for any other purpose other than residential and all permission for conversion from residential to commercial or for structural lay out changes to the first floor are illegal, null and void and for perpetual injunction for removing the internal staircase connecting ground floor unit to the first floor and restraining the appellant from making any change/alteration of the first floor and other reliefs. The plaintiffs/respondents also filed a petition praying for temporary injunction restraining the appellant/defendant Nos. 1 and 2 from constructing any internal staircase connecting the ground floor flat with the first floor flat at the premises No. 59, Ballygunge Circular Road, Kolkata and an order for injunction restraining the appellant/defendant Nos. 1 and 2 from using first floor for any purpose other than residential.
3. The plaintiff/respondent No. 1 is Tripura Enclave Flat Owners Association. The plaintiff/respondent Nos. 2 to 10 are owners of the flat who are the members of the association. The appellant/defendant Nos. 1 and 2 are owners of the first floor and ground floor of the said premises. There is no internal staircase from first floor to ground floor. Both the floors are separate units having separate entrances at different level.
4. The association was formed on 20th June, 2006 and it was registered on 4th July, 2006. The members of the association are bound to act as per rules and regulations of the association and also as per resolution adopted by the association. According to rules and regulations of the association, prior permission of the governing body of the committee is necessary for any change of nature of use. The appellants/defendants applied on 28.11.2011 for permission for carrying out internal decoration of the first floor flat. The permission was accordingly granted on 2nd December, 2011 with specific indication that no structural and lay out change would be carried out. The plaintiff/respondents came to know that defendants/appellants carried out some structural change and they asked the defendants to stop their work. The appellants/defendants informed on 19.11.2011 that they obtained permission from Kolkata Municipal Corporation for installing of internal staircase for getting access from ground floor to first floor. Accordingly, a special general meeting was held on 26.02.2012 where a resolution was adopted to the effect that all the residential flats from first floor upwards would not be converted into commercial space/office.
5. The case of the plaintiffs/respondents Nos. 1 to 10 was that the appellants/defendants abstained from the meeting. Barring the appellants/defendants, everyone supported the resolution of status of flat as residential. The appellants/defendants fraudulently obtained permission from Kolkata Municipal Corporation on 08.09.2011 for conversion and for structural and lay out change. Kolkata Municipal Corporation was under obligation not to sanction plan and grant permission for conversion from residential to commercial. The permission granted by Kolkata Municipal Corporation is not in conformity with the provision of Kolkata Municipal Corporation Act, rules and regulations. The permission granted by Kolkata Municipal Corporation is, therefore, illegal, null and void. The user of the first floor flat as office would cause nuisance to the residential flat owners. It would create noise and annoyance. It would diminish the value of the residential flats. The appellants/defendants are bound to abide by the rules and regulations of the association and also the decision of the governing body of the association dated 26.02.2012. Hence, the plaintiffs/respondents pray for an order of injunction restraining the appellant/defendant Nos. 1, 2 and 3 from constructing internal staircase connecting ground floor with first floor and thereby making any structural change and for a further order of injunction restraining them from using the first floor flat for any purpose other than residential.
6. The appellants/defendants have contested this temporary injunction petition by filing a written objection and have denied therein all the material allegations made by the plaintiffs/respondents. According to them, the plaintiffs/respondents have no cause of action in filing the petition for injunction. The appellants/defendants did not violate any rules and regulations of the association. They have categorically denied to have violated any relevant law or legal provision or acted in breach of their obligation in the matter. On 02.09.2011, they obtained approval for renovation and installation of internal ladder from Kolkata Municipal Corporation. Licensed Building Surveyor of Kolkata Municipal Corporation issued a certificate on 15.12.2011 to ensure that the installation of internal ladder was done in accordance with the permission granted by the Kolkata Municipal Corporation, Building Department under Section 416 on 02.09.2011 without effecting any structural construction of the building. The appellants/defendants intimated the association the fact of approval of plan, sanction/permission to install internal ladder. On 24.02.2012, the appellants/defendants sent letter to the association referring to the sketch plan approved by the Kolkata Municipal Corporation confirming the proposal of conversion on 01.03.2012. They allotted a space on rent to M/s. Patton Securities Private Limited for opening a branch in the suit flat at the rate of Rs. 10,000/- per month. Kolkata Municipal Corporation granted trade licence to M/s. Patton Securities Private Limited on 19.03.2012. The appellants/defendants did not get a copy of notice of special general meeting to be held on 26.02.2012. The plaintiffs/respondents did not make any complaint to the Kolkata Municipal Corporation in connection with the aforesaid dispute. In the instant facts and circumstances, the defendants/appellants have stated that the injunction application was devoid of any merit and they have prayed for rejection of injunction petition with cost.
7. We have carefully, perused the entire materials on record including the submissions made by senior counsel for the appellants and also the submission made by learned counsel for the respondents.
8. It is submitted by learned senior counsel for appellants/defendants that the association being plaintiff No. 1 and its members being plaintiff Nos. 2 to 10 cannot adopt a resolution dated 26.02.2012 which has no legislative support. In other words, learned counsel submitted that the resolution for non-conversion of flat from residential to commercial or nature of user of the flat other than residential does not find any substantive provision in the legislative Act. Therefore, the said resolution being not legally valid has no binding effect upon the defendant Nos. 1 to 3. Learned senior counsel has further submitted that the memorandum with its...
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