ORDER
SHEET WP4332016 GA29662016 GA30102016 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE NILESH P.
MEHTA & ORS.Versus THE KOLKATA MUNICIPAL CORPORATION & ORS.BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 4th May, 2017.
Mr.S.N.Mitra, Sr.Adv., Mr.D.N.Sharma, Adv., Ms.Arunima Lala Sengupta, Adv., Mr.Shwetank Nigam, Adv., for the petitioner.
Mr.Barin Banerjee, Adv., Mr.Gurudas Mitra, Adv., Mr.Dipankar Ghosh, Adv., for the KMC.
Ms.Sipra Majumder, Adv., Ms.Susmita Biswas, Adv., for the State.
Mr.Supratim Laha, Adv., for the private respondent.
The Court : It is really alarming that the owner who act as a developer submits the declaration in the form of an affidavit along with the other documents not only containing the false statements but also the forged document.
The unscrupulous developer takes recouRs.to illegal actions and do not shy away from using the forged and fabricated documents knowing fully well that it is so.
Obviously, such boldness would not come unless they have some patronage of the resourceful authorities and a strong sense that nothing would happen to him even the falsity is unearth.
Such daredevil person do not care to use such false and fabricated documents in a Court proceedings and is stating something on oath which is incorrect and untrue.
Even the statement comes from the bar in the same tune and line and making the Court to believe such statements to be true which later on transpires to be false and absolutely incorrect.
The Court proceedings should not be taken as a ride and such unscrupulous person should not go scot-free when the falsity is unearth in couRs.of the proceedings.
Though the writ petition was filed by some tenants of a premises which is intended to be developed by the private respondent challenging the sanctioned plan granted by the Corporation, but in the mids of the hearing of the writ petition the endeavour which the Court shown to the litigating parties to have the matter settled if there is any possibility thereof.
The matter was taken up from time to time by the different Hon’ble Judges having determination at the relevant point of time and several orders were passed therein in this regard.
It is really unfortunate that though the affidavit-in-opposition was affirmed by the private respondent disclosing the facts on oath, yet it was boldly submitted before one of such Hon’ble Judge that the person who affirmed the affidavit and is a deponent therein has changed the side and joined the camp of the petitioneRs.It invites the second affidavit-in-opposition to be put on record which is further supplemented by a third affidavit-in-opposition.
The matter appeared before me on more than four occasions and this Court developed a sense that it can be settled between the parties if the accommodation to be provided to the petitioners in a newly constructed building is as per the sanctioned area.
The private respondent tried to convince this Court by producing a plan showing the larger area in the ground floor which can cater all the tenants of the building therein and making the Court to believe such stand to be honest and fair.
It is only after the petitioners pointed out to the Court that the area shown in the said map is bigger than the sanctioned area and, in fact, includes the car parking space which cannot be converted into a shop in view of an embargo under the Acts and Rules, the time was taken by the private respondent to take instruction in this regard and to approach the Court on the later date.
Subsequently, the private respondent prevaricated its stand and submits that the sanctioned plan reveals the sanction of 900 sq.
ft.
for shop purposes and hands over a photocopy of the sanctioned plan.
The petitioners vehemently opposed such statement made at the bar and submits that the plan which is sanctioned does not reveal that 900 sq.
ft.
area has been sanctioned for shop purposes.
The learned Advocate appearing for the private respondent was all along consistent and vocal in his submission that it is the 900 sq.
ft.
which is sanctioned for shops; even the person who was assisting the learned Advocate-on-Record and being the representative of the private respondent was present in Court on all such occasions and if my memory goes right down the lane, he nodded in favour of the submission advanced by the Counsel appearing for the private respondent signifying that there is a sanction of 900 sq.
ft for shop purposes.
Since the petitioners were vehemently opposing such submission, this Court directed the private respondent to file an affidavit stating on oath that the building plan has been sanctioned by the Kolkata Municipal Corporation Act earmarking 900 sq.
ft.
for shop purposes.
Today, the affidavit has been filed and in paragraph 5 thereof, it is stated that the Corporation sanctioned the building plan for construction of a shop to the extent of 437 sq.
ft.
and not 900 sq.
ft.
as submitted at the bar on an earlier occasion.
This is now a turn of the learned Advocate-on-Record to take up the burden of the private respondent though the Counsel appeared do not have the courage to face the Court for the submission which he advanced on the last occasion.
It is submitted by the learned Advocate-on-Record of the private respondent that immediately after the submission advanced by the Counsel, the authorised the person instructing such Counsel was being apprised of the query raised by this Court.
A submission was made before this Court that there was a fallacy in such submission.
It is submitted that it was indicated to the Court that in fact, the area for shop sanctioned by the Corporation is less than 900 sq.
ft.
An explanation is sought to be offered on behalf of the private respondent today that the authorised person have read upto Class VI and could not understand the query raised by this Court in English language and there was a miscommunication in between the Counsel and the said instructing person.
I am unable to accept such explanation for the simple reason that such query was not asked once but was repeated by this Court and there was a firm stand of the Counsel in this regard after taking instruction from the said person on each occasion of the query.
It was submitted before the Court that an affidavit shall be affirmed in this regard and precisely for such reason, the matter was adjourned and fixed today.
Naturally, the consequence for making false statement on oath before the Court in couRs.of the proceeding is serious in nature and having sensed the same, the affidavit filed today contains absolutely different statements what transpired to the Court in each day of the earlier occasions.
My attention is drawn to the affidavit-in-opposition used by the Kolkata Municipal Corporation to the writ petition disclosing the affidavit containing no objection certificate and/or declaration by the tenants whose lists were appended thereto.
The signature of two of the petitioneRs.namely, the petitioner Nos.1 and 3 is appearing in the said no objection certificate, which has been denied by the said petitioners on oath in the reply.
The Corporation have disclosed the undisputed documents submitted by the petitioner and believing to be true have acted thereupon and sanctioned the building plan.
Though the Court may take aid of the expert in verifying the signatures appearing in a disputed documents with the undisputed or impeachable one but there is no fetter under the law when the Hon’ble Judge can trust his own eyes in verifying the signature.
Had it been a case that the both the signatures appearing in the disputed document and the other one are somewhat identical and similar and variance cannot be discerned from a bare look thereof, there is no difficulty that the opinion of the expert would guide the Court in determining such cause.
In the instant case, the signature appearing in the disputed document and the document disclosed in the affidavit-in-opposition is absolutely in a different pattern and even a layman cannot say that both the signatures are of a same person.
Prima facie, this Court finds that the document used before the authority which is disclosed before this Court by the Corporation forms part of the records contains the false and forged signatures and such person cannot go scot-free.
The moment the learned Advocate-on-Record appearing for the respondent realised that the Court may take a serous view of the matter, a submission is made that the copy of the affidavit-inopposition filed by the Corporation is not with him.
It is submitted by the learned Advocate-on-Record that he has been recently engaged by the private respondent and all the cause papers and the relevant documents have not been handed over to him.
Precisely, he wanted to convey the Court that the copy of the affidavit-in-opposition filed by the Corporation is not in his records nor he is aware of such affidavit having affirmed in the matter.
I am unimpressed with such submission.
It is one of the pious and onerous duties of the learned Advocate-on-Record who has been subsequently engaged to take an inspection of the Court’s records and if something transpires therefrom should take appropriate step.
The affidavit-in-opposition of the Corporation is on the record and it would be giving a premium to such litigant to have a second breath by means of an adjournment by the Court and thereafter invites a different story.
The learned Advocate for the Corporation also produced the original affidavit appears to have been affirmed by the private respondent containing all such proceedings and/or declarations which led to the sanction of the building plan under Rule 142 of the Kolkata Municipal Building Rules, 2009.
Such certificate by each of the tenant is imperative in view of subrule 3 of the said Rules, otherwise the advantage of the additional F.A.R (Floor Area Ratio) cannot be given to the owner/developer who intends to demolish the existing structure and constructed a new building.
The object and intention behind the incorporation of the said provision is to encourage the old and dilapidated building to be demolished and new building to be constructed within the city of Kolkata without affecting the rights of the tenants or being dealt with otherwise dehors the protection granted under the relevant Act.
If a person has used the false and fabricated document and such documents are surfaced and produced before the Court of Law, there is no difficulty to which the Court can think of in taking a step if, prima facie, such document appears to be forged and fabricated under Section 198 of the Indian Penal Code.
The Apex Court in the case of Suo Motu Proceedings against R.
Karuppan, Advocate, reported in (2001) 5 SCC289held as follows : “13.
Courts are entrusted with the powers of dispensation and adjudication of justice of the claims of the parties besides determining the criminal liability of the offenders for offences committed against the society.
The courts are further expected to do justice quickly and impartially not being biased by an extraneous consideration.
Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts.
If the result of the proceedings is to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth.
The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent.
Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.”
15. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice.
The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath.
Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system.
It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interests of the parties calling them.
Effective and stern action is required to be taken for preventing the evil of perjury, concededly let loose by vested interest and professional litigants.
The mere existence of the penal provisions is deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recouRs.despite proof of the commission of the offence under Chapter XI of the Indian Penal Code.
If the system is to survive, effective action is the need of the time.
The present case is no exception to the general practice being followed by many of the litigants in the country”.
This Court, therefore, directs the Registrar General to immediately lodge an FIR with the concerned police station and proceeding be immediately set in motion.
Furthermore, this Court directs the Municipal Commissioner to take note of the observations recorded hereinabove and immediately take steps under Section 397 of the Kolkata Municipal Corporation Act, 1980 by adhering to the procedure provided in the proviso appended thereto.
Since the enabling Section does not make imperative to file an application in this regard, it is open to the Municipal Commissioner to take steps thereunder in view of the observations recorded hereinabove.
Because of the sterling facts as indicated above, the Municipal Commissioner is directed to see and, if necessary, shall depute the responsible person at the site that no demolition work is effected nor any construction would be made until a final decision is taken by him under the aforesaid provisions.
With these observations, the writ petition is disposed of.
There shall, however, be no order as to costs.
In view of the disposal of the writ petition, the connected applications thereto are infructuous and are dismissed.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties within three days therefrom subject to compliance with all requisite formalities.
(HARISH TANDON, J.) sd/