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IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

CRP No. 478 of 2016

Bani Kanta Medhi & 4 Ors. …..Petitioners

Vs

Himadri Kishore Das & Anr. ..…Respondents

BEFORE

HON’BLE MR. JUSTICE KALYAN RAI SURANA

Advocates for the Petitioner : Mr. Satyajeet Sharma, : Mr. S.N. Adhyapak, Mr. N. Hazarika

Advocates for the Respondent : Mr. Samnur Ali, Mr. R. Baruah, : Mrs. M. Hazarika, Ms. AR Molier,

Date of hearing : 09.01.2017, 25.01.2017 & 06.02.2017

Date of judgment and order : 09.02.2017

JUDGMENT AND ORDER (CAV)

1. Heard Mr. Satyajeet Sharma, learned counsel for the petitioners,

Mr. Samnur Ali, learned counsel for the Respondent No.1 and Mrs. M. Hazarika,

learned Senior Counsel, assisted by Ms. AR Molier for the Respondent.

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2. The petitioners are the plaintiffs in TS No. 161/16. The respondents

herein were arrayed as Defendants No.1 and 2 respectively in the said suit. The

suit was filed for declaration and injunction. Along with the suit, the petitioners

had also filed a separate application under Or. XXXIX R.1 & 2 read with section

151 CPC, which was registered as Misc. (J) Case No. 213/16. The learned Civil

Judge No.3, Kamrup (M), Guwahati by order dated 20.06.2016, passed the order

of ad-interim injunction. The respondent No.1 preferred an appeal against the

said order, which was registered and numbered as Misc. Appeal No. 39/2016.

The said appeal was allowed by the learned Additional District Judge No.2,

Kamrup (M), Guwahati vide order dated 30.11.2016. By filing this application

under Article 227 of the Constitution of India, the petitioners have assailed the

said order dated 30.11.2016 passed by the learned Additional District Judge

No.2, Kamrup (M), Guwahati in Misc. Appeal No. 39/2016.

3. Along with the present revision, the petitioners have filed a

separate application under the provisions of Order XXXIX Rules 1 and 2 read with

section 151 for granting ad-interim injunction to restrain the respondent No.1

from proceeding with any construction beyond building permission dated

09.04.2012, which is registered as I.A.(C) No. 2335/16. The Respondent No.1,

who had appeared by filing a caveat has filed their affidavit-in- opposition to the

said application. During the pendency of the said Interim Application, the

petitioners have also filed a separate application under Order XXXIX Rule 7 read

with section 151 CPC for inspection of the suit premises, which is registered as

I.A.(C) No. 197/2017. The revision has come up for 'admission hearing'. This

court was of the view that there would be a repetition of same hearing at (i) the

'admission stage', (ii) for consideration of prayer for injunction, (iii) for

consideration of prayer for inspection of suit premises, and again (iv) at the time

of final hearing. On this question being posed, the learned counsel for the parties

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have all agreed that the entire matter be heard and disposed off at the

admission stage itself to avoid repetition of almost similar set of argument at

four stages as indicated above. Thus, the entire matter is taken up for hearing.

4. In order to appreciate the facts, it would be necessary to narrate

the relevant pleadings of the parties.

5. The plaintiffs' case is projected as follows:-

a. Plaintiffs claim to be flat owners of a residential apartment in Unit-B

of Rishiraj Residential Building constructed by the respondent No.1

as per plan sanctioned by the Respondent No.2.

b. The plaintiffs claim that they were had entered into separate but

similar "Agreement for Sale" to purchase separate flat units on

being satisfied with the brochure and approved construction plan

dated 09.04.2012, as supplied to them.

c. The proposed building was to be of Ground + 2 floors, with car

parking on the ground floor and residential flat units in the 1st and

2nd floor with roof over 2nd floor to remain as a common facility.

The details of areas covered and/or to be covered by the building

and units therein is not essential and, as such, those are not

mentioned herein for the sake of brevity. The proposed flats in the

building was to be delivered within 12 months or within a further

extended period of 6 months.

d. Out of the five petitioners/plaintiffs, the petitioners No.3 and 5

were delivered incomplete flats, which they claim had been

completed on their own. The remaining portion of the building is

stated to be incomplete with no water supply, sanitary works,

electricity connection and the floor is also not completed. It is

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further stated that the common facilities like compound gate,

transformer, generator, security quarter, etc. has not been

completed. Without referring to minute details, it would be

sufficient to state that as per the petitioners, the building in

inhabitable.

e. The petitioners project that behind their back, the respondent No.1

illegally obtained a revised building permission dated 02.07.2014,

which was contrary to the applicable building byelaws, which to a

great extent reduced their entitlements like parking space,

proportionate share in land, etc. Despite complaining before the

Respondent No.2, as no action was taken as such, the petitioners

had filed the said suit was filed, inter-alia, with prayers to declare

the construction on the third floor and residential area on ground

floor and revised NOC as illegal with further prayer to demolish the

construction claimed to be illegal and for permanent injunction.

f. In Misc. (J) Case No. 213/16, the petitioners made a prayer to

restrain from proceeding with the constructions proposed on the

third floor and ground floor beyond permission dated 04.07.2012.

6. The respondent No.1 contested the suit by filing written statement

cum counter-claim, wherein it was projected as follows:-

a. The respondent was to construct the building pas per plan and the

petitioners were entitled to proportionate share of land under the

building and open space. it was denied that there was any promise

to provide full car parking on the ground floor as space was also

reserved for utilizing some portion for residential purpose. It was

stated that there was no agreement that the respondent No.1

would not construct over 2nd floor.

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b. It was stated that at the relevant time, the Respondent No.2 was

not sanctioning more building of more than Ground + 2 Floor as

new building byelaw was to come and when after the new building

byelaws permitted further construction, the respondent No.1

applied for a revised NOC and started construction as per the

revised NOC. It is projected that there was no violation of the

sanctioned plan.

c. It was stated that the petitioners No.3 and 5 were given their

respective fully constructed flats at their request after the said

petitioners provided their affidavits but the petitioners No.1, 2 and

4 illegally and forcibly took over possession of their incomplete flats

on 09.03.2016 by breaking locks for which FIR was lodged in the

Noonmati P.S. They threatened the labourers to stop construction,

for which the labourers left the work leaving the work incomplete.

It was claimed that none of the petitioners have completed their

assured payment. It is denied that the revised NOC was illegally

obtained.

d. The other voluminous statements including various measurement

details mentioned in the written statement cum counter-claim as

well as in the written statement to counter- claim have not been

reproduced for the sake of brevity. The respondent No.1 prayed for

recovery of possession of flats described in Schedule-A to D and for

cancellation of agreements described in Schedule-E, etc.

e. The Respondent No.1 also contested the application for ad-interim

injunction.

7. The learned Civil Judge, upon hearing the parties, by an order

dated 20.06.2016, inter-alia, held that prima facie the petitioners herein were

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entitled to have the parking space along with other amenities on the ground

floor, due and legitimate proportionate share in the land of Schedule-A since

they have also become a co-owner with the Respondent No.1 herein by virtue of

the said agreements and accordingly, any modification of the plan or extension

of the agreed construction ought to have been made in consultation with the

with the petitioners as such construction would reduce their parking space and

proportionate share in the land. Having taken such a view, the learned Civil

Judge No.3, Guwahati had granted ad-interim injunction, restraining the

respondent No.1 herein, his agents, men, servant, attorney, etc. from making

any further construction upon the roof of the second floor of the building i.e.

Schedule-B building, over the land of Schedule-A and they were also restrained

from extension of residential area of ground floor in terms of revised NOC dated

02.07.2014 till disposal of the main suit.

8. As stated herein before, the said order was assailed in appeal. The

learned first appellate court decided the matter of ad-interim injunction

independently and arrived, inter-alia, at the following conclusion:-

a. That rightly or wrongly the petitioners herein had got possession of

their respective flats by virtue of the agreements.

b. Though the petitioners claim that they were ready and willing to

pay their remaining amount, they did not approach the court for

specific performance of contract or for part performance.

c. The date of revised NOC i.e. 02.07.2014 was not the date of cause

of action.

d. That whether the NOC is illegal or not will be decided in the suit

and if the NOC is found to be illegal, the respondent No.1 will face

consequences.

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e. On the date of filing of the suit, the petitioners herein had not

acquired any title over the properties they agreed to purchase.

f. At the initial stage, it was not safe to conclude that the revised

NOC was obtained illegally or in collusion with officials of

Respondent No.2, who cannot grant permission mechancially.

g. At the relevant time, permission was granted for G+2 as it was the

permissible limit. Subsequently, the byelaws was amended and the

subsequent NOC was issued to the respondent No.1. Therefore, if

at the end of trial it is found that the NOC was granted owing to

manufactured document, the Respondent No.2, being a competent

authority would demolish the extended portion and the respondent

No.1 will face loss.

h. Proportionate share in land is calculated by taking into account the

total area of space purchased divided by total area of construction

multiplied with the area of the area (i.e. land) underneath. The

petitioners are entitled to proportionate area of land and if

respondent No.1 sells extra unit to other persons, the share of

petitioners will be reduced, still the petitioners would get equal

proportionate share of land. When the respondent No.1 entered

into agreements with the petitioners then he got permission for

construction of G+2 building, but if he had got permission to

construct G+3 building, he would have entered into the same

agreements with other purchasers by putting the same clause. The

builder would aim to construct maximum permissible units in a

building, which cannot be termed as illegal.

i. Main facilities agreed to be provided have not been reduced, except

reduction of proportionate/ equal share in land.

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j. As the petitioners have not filed a suit for specific performance of

contract or for part performance, the petitioners have failed to

show prima facie case for granting injunction.

k. If the respondent No.1 is allowed to construct extended portion,

the petitioners would not suffer any financial loss, except reduction

of land and that can easily be compensated in terms of money.

However, if the respondent No.1 is not allowed to construct, he will

face huge financial loss as he has already carried out substantial

construction. For this, reliance was placed in the case of Ratan Paul

(Smti) & ors. V. Subhash Ranjan Paul & Anr, 2001 (1) GLT 244

(para 27, 30).

l. In the prayer, the petitioners have prayed for demolition of 73m2

area of construction on ground floor, which cannot be completed

overnight, and on this count relied in the case of Mandali Ranganna

& Ors. V. T. Ramachandra & Ors, (2008) 11 SCC 1 (para 21, 26 &

27) cited on behalf of the respondent No.1.

m. When the petitioners entered into agreement with Respondent

No.1, then G+2 construction was allowed, but subsequently,

situation changes and the respondent No.1 is permitted to

construct more than G+2 and under such circumstances, if the

respondent No.1 is not allowed to avail the benefit, he will face

irreparable loss.

n. As the respondent No.1 was found to have constructed good

portion of construction work in the presence of the petitioners, so

at the middle restraining construction work would cause sufficient

loss to the respondent No.1 as day by day the price of construction

materials is increasing.

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o. The petitioners were, thus, not found entitled to any order of

injunction.

9. The learned counsel for the petitioners have argued on the

following points, which is made concise for the purpose of brevity:-

a. Section 54 cannot be said to create a bar for a person who has

entered into possession by virtue of Agreement for Sale. For a sale

under section 54 of Transfer of Property Act, the terms are settled

by the parties, i.e. the Agreement for Sale in the present case.

b. The NOC of 2012 nowhere shows that it was provisional.

Therefore, extension of construction beyond the same is illegal.

c. If Regulation 26(1)(a) of the Guwahati Building Construction

(Regulation) Bye-laws, 2014 is followed, the respondent No.1

would entitled only to G+2 construction.

d. The first appellate court relied on extraneous materials because (i)

there is no pleading of huge investment made by the respondent

No.1, (ii) there is no pleading that the residential portion of ground

floor is complete, (iii) there is no pleading that the 3rd floor is

complete.

e. The first appellate court ought to have confined itself only to see

whether or not the ad-injunction was rightly granted by the learned

trial court, and if there was otherwise no infirmity, the first

appellate court ought not to have substituted its view over the

plausible view as perceived by the trial court. In the case in hand,

the learned first appellate court merely substituted its view without

finding any fault with the order of injunction passed by the learned

trial court.

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f. The challenge to the NOC was within the prescribed period of

limitation. Only when the petitioners became aware of the same

and upon refusal of the respondent No.1 to stop construction, that

cause of action arose to file the suit. The revised and/or NOC for

extended construction was issued in February, 2016 and the suit

was filed in April, 2016, as such, it was not proper to accuse the

petitioners of delay or laches.

g. The list of deviations were available before the learned first

appellate court (enclosure to counter-claim) and are also spelled

out clearly in I.A.(Civil) No. 197/17, which is an application under

Order XXXIX Rule 7 read with section 151 CPC.

h. In the Schedule of Agreement, it was projected that the building

would be of G+2 and no reservation was made for any extension of

construction. Therefore, subsequent NOC was illegal. Rights of the

petitioners are morefully stated in clause 5 and 6 of the Agreement

for Sale.

i. This court has the power to exercise jurisdiction as the learned first

appellate court has exceeded its jurisdiction.

j. The order is ex facie perverse.

k. Reliance was placed on the case of-

i. Esha Ekta Apartment Housing co-op Society V. M.C., (2013)

5 SCC 357.

ii. Dalpat Kumar V. Prahlad Singh, (1992) 1 SCC 719 to show

that prima facie case is not to be confused with prima facie

title.

10. The learned counsel for the respondent No.1, with the leave of this

Court, which was granted by order dated 25.01.2017, had filed a set of

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documents which were filed by before the first appellate court. He has argued as

follows:-

a. The first NOC was issued on 09.04.2012, the 2nd and Revised NOC

was issued on 02.07.2014 and the 3rd NOC and/or second revised

NOC was issued on 01.02.2016. Third party interest created on the

extended portion of construction beyond the first NOC.

b. The learned trial court, i.e. Court of Civil Judge No.1 passed the

injunction order without discussing the pleadings of the parties.

c. Unless a sale deed is executed, the petitioners remain a

prospective purchaser and no concluded right has accrued on

them.

d. In the plaint there is no averment of infringement of any civil right.

e. The petitioners have entered into possession and not cleared their

dues, for which they are trespassers because as per law, only after

obtaining "possession certificate" under the existing building bye-

laws, can any person occupy the flat.

f. In the suit, the respondent No.1 has filed a counter-claim.

g. In exercise of superintending jurisdiction, this court cannot venture

into a fact finding process and will have to only evaluate whether

the first appellate court committed any jurisdictional error and this

cannot be equated to appellate jurisdiction.

h. There being no negative covenant to restrain the respondent No.1

to construct beyond NOC of 2012, the petitioners would get what

they had booked, which will now be as per the result of their

counter-claim.

i. Unless a sale deed is executed, the petitioners have no concluded

right.

j. Relied on the following case citations:-

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i. Gulshera Khanam V. Aftab Ahmad, (2016) 9 SCC 414 (para

33, 34)

ii. (2015) 15 SCC 1 (para 37-41).

iii. Mandali Ranganna V. T. Ramachandra, (2008) 11 SCC 1

(para 22 and 24 to 28).

iv. (2003) 6 SCC 675 (para 26, 38).

v. Ratna Paul (Smti.) & Ors V. Subhash Ranjan Paul & Anr,

(2001) 1 GLT 244 (para 13, 14).

vi. Premji Ratansey Shah & Ors V. Union of India & Ors, (1994)

5 SCC 547 (para 4, 5).

vii. Wander Ltd. V. Antox, (1990) Supp SCC 727.

viii. Rameswar Rai V. State of Assam & ors, 2001 (1) GLT 650

ix. Singh & Ors. V. Md. Jallanuddin & Ors, 1997 (1) GLT 282

(para 5).

k. Thus, the learned counsel for the respondent No.1 supports the

first appellate order impugned herein.

11. Mrs. Hazarika, learned counsel for the respondent No.2 i.e.

Guwahati Metropolitan Development Authority, submits that this is a private

dispute between the petitioners and the respondent No.1. She denies any

collusion in the matter of grant of NOC and supports the NOCs issued by the

Respondent No.2 as those are otherwise validly issued. It is submitted that they

would abide by any decision that is passed by this court.

12. Having heard the learned counsel for all the parties, according to

this court, as this revision is on the matter of grant of ad-interim injunction, the

only points of determination before this Court is as to whether or not the order

passed by the first appellate court is sustainable? The other issues agitated by

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the parties in course of their oral argument, if gone into, would cause prejudice

to either of the parties at the time of trial and, as such, they have not been

answered herein.

13. This court has perused the materials on record. From the

documents it is seen that the NOC for construction dated 09.04.2012 was issued

on the basis of an application dated 22.11.2011. The NOC dated 02.07.2014 was

also issued on the basis of the application dated 22.11.2011. Thereafter, the

Respondent No.2 by its letter dated 07.01.2015 informed the Commissioner,

Guwahati Municipal Corporation in connection with "planning permit" in respect

of the respondent No.1 to the effect that modification in building plan may be

done, if required, within the permissible limit mentioned in the body of the said

letter. The Guwahati Municipal Corporation, issued a No objection certificate for

construction dated 01.02.2016, which was done on the basis of application dated

21.01.2015.

14. It was stated by the learned counsels for both the sides in course

of their argument that the "Agreement for the Construction, Sale & Delivery of

Unit with the Rights and Obligations attended thereto" for all the five petitioners

are similarly worded, except for area and flat units. Therefore, for determining

the issue before this court, this court has referred to the agreement dated

29.12.2014 between the respondent No.1 and petitioner No.4 (Plaintiff

Document No.1; pg.44-57 of this revision). It would be relevant to refer to the

relevant clauses 1, 2, 5, 6, 10, 17, 20, 22 and the "Schedule of the Unit to be

constructed and sold out to the purchaser", which is reproduced herein below.

1) “It is agreed that the purchaser shall pay to the builder, on account of coasts (sic.) of the construction of the said unit area/unit measuring approximately 1452 sqft including proportionate share in the common areas comprising

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staircases, passages, etc. in the proposed multistoried building, a sum of Rs.2900/- (Rupees Two thousand Nine hundred) only per square feet, the said cost being inclusive of all coasts (sic.), charges and expenses to be incurred by the builders for construction of the said residential unit for the purchaser in the said multistoried building, complete in all respects including electric wiring, water supply in the toilet, kitchen, etc of the said unit, units walls, ceiling, doors and windows and also the costs, charges and expenses incurred for construction and completion of all common areas and facilities including lobbies, staircase, boundary wall, sewerage line, electric line, main water line, garden portico and other common space.

2) This agreement/contract shall be completed or deemed to have been completed by the builder only after the said multistoried building is completed in all respects including electric wiring, water supply in the toilet, kitchen, etc of the said unit, units, walls, ceiling, doors and windows and also costs, charges and expenses incurred for the construction and completion of all common areas and facilities including lobbies, staircase, boundary wall, sewerage line, electric line, main water line, garden portico and other common space.

5) That it is made clear, the undivided share/interest of the purchaser in the land shall always by calculated by taking into account the total area of space purchased divided by the total area of construction as multiplied by the area of the land underneath.

6) The purchaser shall be entitled to full and free enjoyment not only of the unit area/unit which he was left to be constructed by the builder in the said multistoried building but also full and free enjoyment of all common areas, facilities, advantages and benefits in the said multistoried building and to all easement rights of light and air or ingress or and also all right support and right to het water from the water supply system to be provided by the builder in the said building including any right of enjoyment of the services of pump house, common electric installations, etc. Subject,

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however, to the purchaser paying the proportionate costs, charges and expenses for the supply of the said electrical installations, water supply maintenance, municipal rates and taxes, property taxes and all other costs, charges and expenses for enjoying common amenities and services in proportion to the undivided share/interest purchased by the purchaser in the said multistoried building. The description of common areas and amenities to be enjoyed are given in the schedule. Full price of such common facilities, additions and other amenities as mentioned in detail in the schedule is to be borne and paid by the purchaser in proportion to his detail in the schedule is to be borne and paid by the purchaser in proportion to his undivided share/interest in the schedule land.

10) That the purchaser agrees that until the said premises is separately assessed to Municipal tax or for water charges, the purchaser shall pay the water charges and property tax assessed on the whole building by the concerned authorities according to the undivided share/ interest of the purchaser in the land and this shall be determined as per the formula given in clause 5 of this agreement.

17) That it is further agreed upon between the parties hereto that in the event of any apartment owners association being not formed and registered before the disposal by the builder of the other units in the said building, the power and authority of the association or any other body or forum so to be formed, the right of the purchaser of the said unit and also other purchasers and occupiers of other units in the said building shall be subject to overall right and control of the builder in respect of any matters concerning the said building and also relating to the construction and completion thereof, and all amenities pertaining to the same and in particular, the builder shall have absolute authority and control as regards any unsold units/ premises in respect of which no agreement has been made for some reason or other and the builder shall have the absolute authority regarding the disposal thereof.

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20) That all the common areas facilities and amenities are being provided by the builder in the said multistoried building over and upon which the purchaser and other purchaser shall have the right of common use and enjoyment and which is fully described in the schedule hereunder. The purchaser hereby agreed to pay the proportionate cost and charged for the same as will be fixed by the builder towards the association is formed and after formation of such association, the proportionate costs and charges of maintaining the common facilities shall have to be paid to the association. It shall be open for the members of the proposed association to frame its rules and regulations by-law, etc for its smooth functioning.

22) That the purchaser hereby agrees that the builder shall be entitled to add or vary the terms of this agreement in the conveyance deed to be executed by the builder (as Attorney of the vendor) in favour of the purchaser.

Schedule of the Unit to be constructed and sold out to the purchaser

All that a unit or a premises or unit area in the Unit No. – B Flat No. I, measuring about 1452 square feet (approx. super built up area) in the said multistoried building known ‘Rishiraj Residential Building.”

15. On perusal of the above specific clauses as well as other clauses of

the said agreement, it is clear that the petitioners have not agreed to pay for the

proportionate share of the land falling in their share. The unit sought to be

bought and sold is referred not only in clause 1 of the agreement but also

reiterated in the Schedule to be sold. Therefore, in the opinion of this court, no

vested right or interest is found to have devolved on the petitioners over the

same on the basis of the various clauses contained in the said Agreement.

Therefore, the finding recorded by the first appellate court in paragraph 14 of

the impugned judgment that as the petitioners herein have not filed a suit for

specific performance of contract or for part performance, for which the existence

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of prima facie case was not found in favour of the petitioners cannot be faulted

with.

16. On reading clause 2 of the said Agreement, it would appear that

the agreement/ contract is not yet a concluded contract as the admitted case of

both the parties is that the construction is not yet complete in all respects.

Therefore, this court finds the reasoning by the first appellate court for refusing

injunction on the ground that the petitioners have not come for enforcement of

contract and/or for specific performance of contract is not a unreasonable view

and the said reasoning cannot be held to be perverse for two reasons, firstly,

that there is no agreement or contract to be enforced for sale of proportionate

share in the land and, if there is no covenant to purchase the proportionate

share in the land, it would not be open for the petitioners to claim and/or assert

any right over any part of the land on which the building has been built and

secondly, there being no agreement/contract for sale of proportionate share in

law, the petitioners did not pay for the same and without acquiring ownership

right over the proportionate share over the land, there is no cause of action to

be enforced in the absence of any claim by the petitioners for their agreement/

contract to be specifically performed. The mere mention of how undivided

interest of the purchaser in respect of the land in clause 5 of the agreement,

does not give the privilege of ownership right to the petitioners in respect of the

proportionate share in the said land. A reading of clause 5 of the said agreement

would justify the finding recorded by the learned first appellate court in

paragraph 11 of the impugned judgment of how the share of proportionate area

of land is to be calculated. Having arrived at a view different from the learned

first appellate court, still it appears that there is no infirmity in the finding

recorded by the learned first appellate court wherein the learned court has

stated that if the respondent No.1 herein is allowed to construct the building, the

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appellants will not face any kind of loss, except reduction of proportionate share

in the land, which can be compensated in terms of money. The reliance by the

learned first appellate court in the case of Ratna Paul (Smti.) & others V.

Subhash Ranjan Paul & another, 2001 (1) GLT 244 (para 27) is not found to be

misplaced.

17. This court is further of the view that there is yet one more reason

why refusal of injunction is found to be justified. It is observed that by clause 22

of the said agreement as reproduced above, the respondent No.1 had reserved

the right to add or vary the terms of the said agreement in the conveyance deed

to be executed by the respondent No.1 in favour of the petitioners. The finding

by the first appellate court in paragraph 11 to the effect that the respondent

No.1 herein cannot unilaterally change the agreement is not faulted with but the

fact remains that the clause 22 of the agreement entitles the respondent No.1

herein to alter the clauses in the conveyance deed.

18. Although the learned counsel for the petitioners had argued that

the petitioners had right to enjoy roof rights over second floor, but on reading

the agreement, specifically clauses 10, 17 and Schedule, this argument is not

substantiated because the petitioners did not purchase or acquire any roof rights

over second floor, rather, from clause 17, it appears that the respondent No.1

had reserved absolute authority over any unsold portion, which includes the roof

over second floor and, as such, there appears to be no impediment in carrying

out construction on the roof of the second floor.

19. As regards the projection of the petitioners that car parking facility

to the building would be reduced if the respondent No.1 is allowed to go ahead

with the proposed construction, this court finds that there is no covenant in the

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said agreement to provide car parking to the petitioners, for which the clause 1,

2 and clause 20 read with "Schedule of the unit to be constructed and sold out to

the purchaser".

20. In order to appreciate the submissions made by the learned

counsel for the petitioners that on the basis of the land available with the

respondent No.1, the Respondent No.2 could not given a sanction for

construction of 3 floors by modifying the first NOC dated 09.04.2012, it is seen

that the NOC dated 09.04.2012 was issued on the basis of application dated

22.11.2011 and the NOC dated 02.07.2014 was also issued on the basis of

application dated 22.11.2011. From the Planning Permit dated 07.01.2015,

issued by Respondent No.1, it is seen that on the basis of application dated

30.09.2014 submitted by the respondent No.1 the Respondent No.2 found that

the respondent No.1 was entitled to more construction, for which it informed the

Commissioner, Guwahati Municipal Corporation that Planning Permit was

accorded for construction as mentioned therein. At this juncture, it would be

pertinent to refer to the letter under Memo No. GDD.54/97/743 dated

04.09.2012 by the Commissioner & Secretary to the Govt. of Assam, Guwahati

Development Department to the Respondent No.2 and to the Commissioner,

Guwahati Municipal Corporation allowing the said authorities to grant permission

only upto G+2 floors purely for residential buildings only, further informing that

new Building Bye Laws was expected shortly, which makes it crystal clear that

the respondent No.1 obtained NOC for G+2 construction and after the new

Building Bye Laws came to be enacted in 2014, applied for extension of

construction, which was accorded, therefore, the first appellate court had rightly

held that it would be premature to accept allegation of any collusion at this stage

as the same can only be established at the trial. This view of the first appellate

CRP 478 of 2016 Page 20 of 24

court appears to be reasonable, otherwise a finding recorded without any

evidence would definitely prejudice either of the party at the trial of the suit.

21. As regards the plea that the respondent No.1 took permission from

the respondent No.2 by projecting a residential building but as the Respondent

No.1 had proposed to sell flats, essentially an apartment was being built, the

learned counsel for the petitioner had relied on the provisions of Regulation

24(c). Per contra, in support of the contention that the permission and/or NOC

for construction was accorded validly, the learned counsel for the respondent

No.1 referred to the provisions of Regulation 26(1)(a) of Guwahati Building

Construction (Regulation) Byelaws, 2014. Considering the submissions from the

learned Senior Counsel for the Respondent No.2 that there was no collusion and

that the NOCs for construction was validly issued, this court is again of the view

that it would be improper to declare at this stage what would be the proper size

of construction, because this facet can only by decided after appreciation of

evidence. Therefore, the learned first appellate court was not incorrect in holding

that if in the trial the NOC in question is found to be illegal and void then GMDA

is the appropriate authority to demolish the extended portion of the building.

22. The stand of the petitioners that the respondent No.1 had not

disclosed them about the subsequent permissions/ NOCs, this court is of a prima

facie view that unless the agreement does not have any clause which obliges the

builder to seek consent of the prospective purchasers before he actually applies

and obtains a fresh NOC, the petitioners cannot have suffered any legal

prejudice whatsoever.

23. As regards the submission that the impugned order passed by the

learned first appellate court is bad in law because an appellate court does not

CRP 478 of 2016 Page 21 of 24

have the power to interfere with the exercise of discretion by the trial court and

substitute it own discretion without arriving at a finding that the discretion was

exercised arbitrarily or perversely or capriciously where the court had ignored the

settled position of law, for which reference may be made to the case of Wander

Limited V. Antox India Private Limited, (1990) Supp (1) SCC 727, this court is of

the view that in the present case in hand, the learned Court of Civil Judge No.3,

Guwahati, failed to appreciate that (i) the parking area, (ii) proportionate share

in land and (iii) roof space over second floor were all not covered by the

schedule of area sought to be sold by virtue of the herein before referred

Agreement for sale and, as such, the prima facie case for trial is found lacking by

this court and therefore, the said deficiency in the judgment of the learned first

appellate court cannot be of any aid to the petitioners because even this court by

applying an independent view of the matter has arrived at the same finding as

the learned first appellate court that there is no prima facie case in favour of the

petitioners for grant of ad-interim injunction.

24. The learned counsel for the respondent No.1 had relied on

paragraph 38(9) of the case of Surya Dev Rai V. Ram Chander Rai & others,

(2003) 6 SCC 675, and reminded this court that this court exercising

superintending jurisdiction under Article 227 of the Constitution of India ought

not to indulge in re-appreciation or evaluation of evidence. However, it is seen

that in the instant case, it is on plain and ordinary reading of the "Agreement for

the Construction, Sale and Delivery of Unit with the Rights and Obligations

Attended thereto dated 29.12.2014 between the Respondent No.1 and Petitioner

No.4 (i.e. Kandarpa Roy) (Plaintiff Document No.1; pg.44-57 of this revision), the

first NOC dated 09.04.2012 and second NOC dated 02.07.2014 were both in

existence. The said agreement does not contain reference to any particular NOC

and, as such, the petitioners cannot claim to have any indefeasible right to get

CRP 478 of 2016 Page 22 of 24

the building constructed in terms of NOC dated 09.04.2012. Moreover, there is

no agreement for the transfer or right in respect of proportionate share in the

land and in respect of parking space. Of course the other agreements are of

different dates, but at least one out of the five petitioners is deemed to be aware

about the existence of two NOCs, which were obtained prior to the agreement

with him. Therefore, the learned Civil Judge appears to have not applied its

judicial mind and granted injunction mechanically in holding that there was

existence of prima facie case in favour of the petitioners herein. The sale having

not been completed and there being no material on record before the learned

trial court to hold that the petitioners herein had spent huge amount of money

for purchasing their residential units, the grant of injunction cannot be said to be

proper. The reference to promise allegedly made by the respondent No.1 to the

petitioners is not shown to have been violated because there was no bar for the

respondent No.1 to go for additional structures, so long as the size of unit sought

to be purchased by the respective agreements of the petitioners with the

respondent No.1 remains unaltered. One must be mindful of the fact that under

clause 17 of the agreement, the respondent No.1 had reserved his absolute

authority over unsold units/ premises and that under clause 22 of the

Agreement, the respondent No.1 reserved the right to vary the terms of the said

agreement in the Conveyance Deed to be executed by the respondent No.1 in

favour of the builder. Thus, viewed from all angles, notwithstanding that the first

appellate court had not given its reason on the findings recorded by the learned

Civil Judge No.3, Guwahati, this court has no option but to uphold the judgment

and order passed by the first appellate court. The judgment and order dated

20.06.2016 is not found to have been based on sound legal principles because

the said learned court did not apply its judicial mind on the various clauses

contained in the agreement, as such, the same is sustainable in the opinion of

this court.

CRP 478 of 2016 Page 23 of 24

25. Having held the petitioners lacked a prima facie case for trial, the

other aspects of the matter relating to remaining two golden principles of

injunction like balance of convenience and irreparable loss of injury or any other

issues raised by the parties need not be gone into. In this case in hand, the sale

of the flat unit in favour of the petitioners is not completed and, as such, they

cannot be said to have become the owners of the flat units and as the

petitioners have not asked for specific performance of the contract, as such, as

on date, the title of the respondent No.1 remains intact in respect of the flat

units intended to be sold to the petitioners. Thus, in view of the decision of the

Hon'ble Apex Court in the case of Premji Ratansey Shah (supra) (para-5), the

learned trial court ought not to have granted injunction against a true owner.

Therefore, notwithstanding that the learned first appellate court did not

specifically hold the order dated 20.06.2016 to be bad in law, the re-appreciation

of materials on record by the first appellate court cannot be faulted with. The

reasons, findings and decision of the first appellate court appears to be on sound

premises. The other cases cited by the parties do not apply on the singular facts

of the present case.

26. Accordingly, the judgment and order passed by the learned First

Appellate Court is held to be sustainable and revision is not found devoid of any

merit and the same is dismissed with the parties left to bear their own cost.

27. Consequently, the I.A. No. 2335/16 and I.A.(C) No. 197/17 are also

both dismissed.

28. As the trial of the suit and the counter-claim is yet to begin, it is

made clear that the observations and/or findings mentioned herein before in this

CRP 478 of 2016 Page 24 of 24

order is only for the purpose of deciding the present revision and for the limited

purpose of deciding the issue of only ad-interim injunction and, as such, the

same shall in no way influence the trial or prejudice any party hereto in the trial.

JUDGE

Mkumar