BENGAL AMBUJA HOUSING DEVELOPMENT LTD. versus PRAMILA SANFUI AND ORS.

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 was dismissed as withdrawn by an order of this Court dated 13.02.2013 in the case of Bengal Ambuja Housing Development Limited & C Anr.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 legal submissions, the learned senior counsel has placed reliance on the decision of this Court in D 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 th~ 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 G Court in the case of Shanker Motiram Nale v. Shiolalsing Gannusing Rajpuf2, wherein it has been held as under: 1 c2001) 12 sec 549 2 (1994) 2 sec 753 "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 C Vi nod 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 was dismissed as withdrawn with liberty to file an appropriate petition before the High Court to review its order questioned in the earlier SLPs.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 E petition being dismissed, the appeals filed by BengalAmbuja 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 tlile jurisdictional police to enforce the order of temporary injun,ction are not binding and cannot be enforced against it, as it was not a party to the original suit "G 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 3 (;1012) 12 sec 378 H • (2004) 13 sec 677 BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v. PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.] by them, in terms of the decision of this Court in the case of A Su/ekha 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 C 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 D 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 E 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 G 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 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 B 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 C 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 D R;Jainst him without bringing his legal heirs on record. The status quo order passed 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 G 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 BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.] learned senior counsel appearing on behalf of the appellant, BengalAmbuja Housing Development Ltd. thatthe High Court had failed to consider the scope of the principle of /is 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. 121of1962. The Information Slip issued bytheAlipore 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 C counsel appearing on behalf of the respondent- Receiver contends that the appellants presently do not have the locus standito challenge any subsequent orders passed in the Title Suit No. 121 of 1962. The property in dispute, upon wtiich the claim is made by them, being a portion of the suit property is D governed by the principle of /is 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 E 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 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 G restrain order. Therefore, it is urged by the learned senior counsel th1!1t 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. San jay Hegde and Mr. J.P. Cama, the learned senior counsel appearing on behalf of the respondents and have perused the documents produced before tis jn 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 ir these appeals.

17. We agree with the contentions advanced by the C 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 attai.ned finality as no appeal has been filed questioning t~e correctness of the same. By order dated 07 .07 .2006 11assed 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 E 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/1 O" 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 G 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 BEN GALAM BUJA HOUSING DEVELOPMENT LTD. v. PRAMILA SAN FU I AND ORS. [V. GOPALA GOWDA, J.] suit schedule properties by way of amendment to the plaint A 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 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 c 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 D 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.

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 G 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 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 B 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: c "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 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 G 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. H the suit schedule property in dispute cannot be the subject BENGALAMBUJA HOUSING DEVELOPMENT LTD. v. PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.] matter of partition in view of the express provisions of the West A 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, which order was affirmed by this Court in the case of Su/ekha Pal, referred to supra.

20. Th·e amendment of plaint to include the suit property of the heirs of late Gangadas Pal was done in pursuance of C 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 D 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 E 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.

22. At the end, it was brought to our notice by Mr. San jay 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 G 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 B Central or State Government or Statutory Boards or Corporations or Companies owned by either the Central or State governments, including the case of Ramana Dayaram Shetty v. The International Airport Authority of lndia5 , which was relied upon in the more recent decision of Akhil c 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 D 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 t~e 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 learned senior counsel cannot be dealt with by us, as the same is not in controversy in G the present case before us. The aggrieved parties are at liberty to seek the above mentioned prayer in an appropriate proceeding. 5 AIR 1979 SC 1628 6 (2011)5SCC29 BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v. PRAM I LA SANF~ AND ORS. [V. GO PALA GOWDA, J.]

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 temporary injunction passed on 16.06.2006 by the learned Subordinate Judge, Ali pore 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 C 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 D 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 E 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 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 G of. Bibhuti Bhushan Bose Appeals disposed of.