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Calcutta High Court
Arunava Bhattacharjee & Anr vs The Kolkata Municipal Corporation & Ors on 15 July, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
RESERVED ON: 02.07.2025
DELIVERED ON:15.07.2025
PRESENT:
THE HON'BLE MR. JUSTICE TAPABRATA CHAKRABORTY
AND
THE HON'BLE MR. JUSTICE REETOBROTO KUMAR MITRA
APOT No. 39 OF 2023
WITH
WPO NO. 311 OF 2018
IA NO: GA 1 OF 2023
ARUNAVA BHATTACHARJEE & ANR.
- VERSUS -
THE KOLKATA MUNICIPAL CORPORATION & ORS.
Appearance:
Mr. Soumya Majumder, Sr. Adv.
Mr. D.R. Mukherjee, Adv.
Mr. Arijit Dey, Adv. ... for the appellants
Mr. Alak Kr. Ghosh, Adv.
Ms. Piyali Sengupta, Adv. ... for KMC
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Ratul Bhattacharjee, Adv. ... for the respondent no. 7
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Mr. Arindam Banerjee, Sr. Adv.
Mr. Bikram Sarkar, Adv.
Mr. Ratul Bhattacharjee, Adv.
Mr. Tapajit Das, Adv. ... for the respondent no. 8
Mr. Raghunath Chakraborty, Adv.
Ms. Mohona Das, Adv. ... for the proforma respondent
Reetobroto Kumar Mitra, J.:
1. The present appeal arises from an order passed by the learned Single Judge
dated 3rd February, 2023 disallowing the appellants herein from relying upon
and disclosing certain additional documents by way of two supplementary
affidavits in aid of the Writ Petition.
2. One of the principal issues raised by the appellants, by way of disclosing these
additional documents, is that the private respondents 7 and 8 had
misrepresented the facts to this Hon’ble Court and were seeking to obtain
orders without disclosing these documents. In fact, the documents sought to be
disclosed by way of these supplementary affidavits were:-
i. A demand notice by the KMC and a copy of the filled up application
form by the respondent No. 8 for obtaining a certified copy of the
deed. Both documents were obtained by the petitioner, pursuant to his
application under Section 6 of the Right to Information Act, 2005
dated 24th October, 2017.
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ii. The agreement between R-7 and R-8.
iii. The power of attorney executed by R-7 in favour of R-8.
iv. A screenshot of the land area of the subject premises, popularly known
as Avidipta-2.
3. The appellants, the added writ petitioners, sought to disclose these additional
documents by way of two separate supplementary affidavits at pages 23 and 98
respectively of the stay petition. This, the learned Judge thought, was a dilatory
tactic, which would necessarily delay the hearing of the Writ Petition.
4. The documents sought to be disclosed by the appellants would, if allowed to be
disclosed, open up a totally new case, thus enlarging the scope of the Writ
Petition.
5. The issues which weighed with the learned Single Judge to disallow the filing of
such affidavits may be summarised as under:
A. The arguments on behalf of the original writ petitioners were concluded
prior to affirmation of the first affidavit. The first affidavit was also silent
as to how such documents were procured by the appellants,
the added writ petitioners.
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B. The added writ petitioners, the appellants herein, sought to bring onrecord the documents when their turn to advance arguments
arose, as, consciously the person to whom such documents were
addressed by the KMC had not produced the same. Thus, the practice of
introduction of documents in instalments by different routes of the writ
petitioners was deprecated.
C. The disclosure of such documents by the appellants would result in
enlarging the scope of the Writ Petition, which is impermissible as the
court in exercising its power of judicial review could not permit such
enlargement.
D. As a consequence of the aforesaid issue of enlarging the scope of the
Writ Petition, the learned Judge held that such disclosure of
documents at a belated stage had been done purposefully by the
appellant to cause delay in disposal of the Writ Petition.
E. It is on these grounds that both affidavits, sought to be filed by the
petitioners/appellants herein, were disallowed.
6. To understand this issue, it is imperative that a brief summary be given of the
facts of the case.
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7. The petitioners are all flat owners in the project named Avidipta-1 and are co-
owners of the land on which Avidipta-1 has been established, covering
approximately 9 acres. Avidipta-2 is situated or is proposed to be situated on
approximately 3 acres. Though the floor area ratio (FAR) of Avidipta-2 has been
sought for on the basis of the entire land, covering both 1 and 2, which means,
the petitioners’ land is being construed as part of Avidipta-2 for obtaining the
FAR in respect of the second phase. This is why the petitioners are aggrieved
and have approached this Hon’ble Court.
8. The main issue hovers around the fact, that the petitioners claim
exclusive rights over 9.04 acres of land out of the total 12.27 acres by virtue of
registered sale deeds and therefore claim to have exclusive right to the available
unutilised FAR at phase one, which under no circumstances can be transferred
or utilised by or for the development of phase two.
9. Mr. Soumya Majumdar, learned Senior Advocate appearing for the appellants,
the added writ petitioners, have raised the following issues, as to why the
supplementary affidavits ought to have been permitted to be filed by the
learned Single Judge:
a. The aforestated documents, which were sought to be brought on
record by the supplementary affidavits, were all authored
between the respondent no. 7 and respondent no. 8.
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b. Such documents were known to the respondent no. 1 (KMC) aswell, since such documents had been produced at the hearing before
the concerned officer of KMC.
c. The respondent no. 8, in the affidavit in opposition filed by it before
the learned Single Judge, had itself craved reference to such
documents, which were to be disclosed by the appellants.
d. Those documents, therefore, cannot under any circumstances be said
to have enlarged the scope of the Writ Petition or to have taken the
respondents by surprise, as they were all known to the respondents to
have an existence. In fact, the veracity or authenticity of such
documents has not been questioned by any of the parties and
indeed could not have been questioned, since they are documents
between such parties, especially the respondent nos. 7 and 8.
e. The documents cannot under any circumstances be said to have
enlarged the scope of the Writ Petition, as the question of
suppression and fraud had been urged in the Writ Petition by the
original writ petitioners as well as before the hearing officer of the
KMC. Thus, it cannot be said that the age-old principle of
introduction of any amendment to the pleading or introduction of
additional documents could not have enlarged the scope or
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changed the nature and character of the case pleaded in the WritPetition.
f. He drew our attention to page 28 B of the Stay Petition, the first
supplementary affidavit, to show that supplementary affidavits were not
meant to supplement any pleadings, but only for incorporation of
documents, which the appellant sought to disclose before the learned
Single Judge.
g. He drew our attention also to page 21 in the Writ Petition to establish
that the private respondents had engaged in illegal
acts, had manipulated, misrepresented and distorted facts and figures
for getting additional FAR and consequently sanctioned from the
KMC.
h. He categorically stated that the point of suppression had been taken by
the writ petitioners in the Writ Petition at paragraph 34 in no uncertain
terms. It was only to buttress this issue of suppression, the pleadings
whereof were already made, that the appellants, added writ
petitioners, had sought to disclose additional documents.
i. In fact, interestingly, Mr. Majumder has drawn our attention to a
pleading in the affidavit in opposition filed by the respondent No.
8 (page 63 at 68 of the bunch of documents) to show that the private
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respondents themselves craved leave to refer to and/or producedocuments, which are the very same documents, being produced by
the appellants herein.
j. Mr. Majumder has also argued that the principle of Order 6 Rule
17 of the Code of Civil Procedure, 1908 did not apply to the present
case. This, primarily, since the provisions of Order 6 Rule 17 are
meant to be applied in a civil proceeding where the pleadings and
the evidence are separate and taken at different stages. However, in a
Writ Petition, which is really a trial on affidavits, the evidence has to
be disclosed to ensure that the Court has all relevant facts and
documents before it prior to reaching the conclusion upon
adjudication of such facts.
k. Mr. Majumder has also in no uncertain terms stated that this order
denying him the opportunity to file the supplementary
affidavits squarely falls within the parameters of a judgment as
specified in 2023 (1) SCC 634, as the order conclusively decides the
rights of the parties, and particularly that of the appellants herein to
rely on the documents, which the appellants feel are absolutely
essential for a wholesome adjudication of the rights of the parties.
Having decided not to allow the appellants to file or rely upon such
documents, the Court has conclusively closed the rights of the
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appellants to rely on such documents. Thus, this order under appeal
qualifies to be treated as a Letters Patent Appeal under Clause 15.
10. Mr. Arindam Banerjee, learned senior advocate for the respondent no. 8 has
raised the following issues.-
a. The petitioners had knowledge of the documents. The documents as will
appear from the very nature, were available in the public domain and the
appellants herein ought to have been more diligent as they
had constructive notice of such documents and therefore obliged
to disclose the same, if they so chose, at an earlier stage.
b. The attempt to file such supplementary affidavits bringing on record
certain documents, or the pleadings contained in such affidavits, raises
questions of res judicata. This, since the appellants herein had in their
application for addition of party, made an additional prayer to file
pleadings, which had not been considered or allowed at the time that the
appellants were added as parties to the Writ Petition. Therefore, the
attempt to file the two affidavits was really barred under Section 11, 5th
proviso of the Code of Criminal Procedure 1908.
c. The present appeal itself is not maintainable as it is not a judgment under
Clause 15 of the Letters Patent of this Hon’ble Court and hence could not
have been carried in appeal.
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d. The documents sought to be disclosed by the supplementary
affidavit have been rightly rejected by the learned Single Judge as there is
no corresponding pleading in so far as these documents are concerned
and the question of disclosing evidence without there being any
corresponding pleadings is not permissible in law. ( 2011 12 SCC 695 at
704), (2023 (1) SCC 634 Para 115).
e. There has been an immense delay in attempting to bring such documents
on record, as the Writ Petitioners had already concluded
their arguments and thus having approached the learned Court at such
a belated stage, the petitioners/ appellants herein were rightly refused an
opportunity to file such affidavits.
f. By filing such affidavits and the corresponding documents therewith,
the appellants were attempting to enlarge the scope of the Writ Petition.
In fact, the case made out in the Writ Petition does not call for such
documents and the very purpose of disclosing the documents by way of
the two supplementary affidavits was to enlarge the scope of the Writ
Petition. Hence this was not rightly permitted.
11. Mr. Abhrajit Mitra learned senior advocate, for respondent no. 7 made the
following submissions:-
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a. First, he submits that the events narrated in both the supplementaryaffidavits were not subsequent events, which can be said to
have arisen after institution of the writ petition. He has drawn our
attention to paragraphs 3 and 4 of the first supplementary affidavit,
further alleging that the documents sought to be relied upon in the first
supplementary affidavit were obtained on the basis of an application
under Section 6 of the Right to Information Act by the petitioner no. 1
and not the appellant herein. The petitioner no. 1 had access to these
documents and chose not to disclose the same. Paragraphs 5 and 6 of
the second supplementary affidavit refer to material available to the
petitioners, as far back as in 2019 and could not be brought on record
by way of these affidavits in 2023.
b. Second, he submits that a new case has been made out or at least sought
to be made out, as would appear from paragraphs 5, 6, and 7 of the
second supplementary affidavit, since none of these allegations were
levelled in the Writ Petition. The learned Judge had rightly held that by
way of the supplementary affidavits, these appellants were seeking to
enlarge the scope of the Writ Petition.
c. Third, regarding paragraph 6 of the second affidavit, Mr. Mitra submits
that it is clearly beyond the scope of the Writ Petition, as
also are those allegations made in paragraph 7 of the first
supplementary affidavit.
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d. Mr. Mitra relied upon three decisions first, of a learned Single Judge ofthis Hon’ble Court reported in 2014 SCC On-Line Calcutta 12483.
He relied also on AIR 1981 SC 588 and 2018(3) CHN 105. The issue
decided in these decisions is not in dispute that by way of supplementary
affidavits, a new case cannot be permitted to be made out by enlarging
the case made out in the petition.
12. Mr. Alak Kr. Ghosh, learned advocate appearing for the Calcutta Municipal
Corporation has adopted the submissions made by Mr. Arindam Banerjee, on
behalf of the respondent no. 8 and Mr. Mitra appearing for the respondent no.
7. In addition thereto, Mr. Ghosh adds that the appellants who are the added
petitioners (added petitioners no. 23 and 24) are those who had not
participated in the hearing or proceedings before the authority concerned.
Thus, they should not be allowed in any manner, especially by way
of filing supplementary affidavits to bring documents on record, which may
have been used by the original petitioners herein, before the concerned
authority. Mr. Ghosh has also reiterated that the case sought to be made out in
the supplementary affidavits should be read in conjunction with the context of
the main issue and not in deviation thereof.
13. We have heard the parties at length and considered the documents on record.
The writ petition was filed some time in 2018.
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14. It is indisputable that the matter was being finally heard in 2023, well after a
period of five years had lapsed after institution of the Writ Petition. This cuts
both ways. First, there was no glaring urgency to proceed with the matter
and secondly, that the appellants had ample time to disclose such documents at
the time when they were impleaded as parties in the proceeding.
15. The documents are not disputed by any of the parties. In fact, the
documents, are such that the respondents themselves had access to such
documents and could have disclosed the same during the course of the hearing
of the Writ Petition. Having chosen not to do so, these documents cannot be
regarded as irrelevant or inconsequential documents.
16. It is indisputable also that some of these documents were in the public domain
which can be construed as constructive notice to all the parties. However, to
what extent the appellants would have access to such documents is a
questionable issue.
17. We are not impressed with the issue of res judicata as such documents are
admitted documents, authored between the respondents no. 7 and 8 and for a
wholesome adjudication ought to have been disclosed by the concerned
respondents, themselves. The appellants’ rights qua disclosure of the documents
were never decided in any prior stage of the proceeding.
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18. The issue regarding evidence not being acceptable without corresponding
pleadings is something relating to a matter thoroughly abiding by the
process enumerated under the Code of Civil Procedure in
a civil proceeding such as a Suit. A Writ Petition is not completely covered by
the Code of Civil Procedure. Thus, in a proceeding such as that of a Writ
Petition, the effort is to adjudicate all issues, if that may be called a trial, by
affidavits.
19. Thus, disallowing filing of affidavits, even though termed as supplementary
affidavits, almost tantamounts to a party not being given an opportunity of
presenting his case either by way of pleadings or by way of documents, that are
the only evidence in a Writ Petition. A trial by way of affidavits necessarily calls
for documents to be disclosed by the concerned party. The learned
Judge, having disallowed them and come to the finding that the scope of the
Writ Petition would have been enlarged by permitting the supplementary
affidavits to be filed by the appellants, has not taken into consideration whether
the documents were relevant or not for a wholesome adjudication of the dispute
raised in the Writ Petition.
20. The learned Judge has proceeded to hold that “the facts pleaded in the
Supplementary Affidavits, if allowed to be brought on record, would ultimately
result in enlarging the scope of the Writ Petition which is impermissible as this
Court has to exercise its power of judicial review of a decision taken by the
authority of the KMC”. This finding is contrary to the finding of the learned
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Single Judge in the very same paragraph recording “this Court further holds that
the prayer of the added writ petitioners no. 23 and 24 for leave to bring on
record the documents by way of supplementary affidavits after commencement
of hearing of the Writ Petition was only for the purpose of delaying the
disposal of the Writ Petition”. Thus, it is unclear from the order impugned
whether the refusal to allow the filing of the supplementary affidavits was on
account of the facts pleaded therein which would result in enlarging the
scope of the Writ Petition or whether the same was refused to avert the delay
that would be caused in disposing of the Writ Petition. The Writ Petition had
already been pending for 5 years.
21. The supplementary affidavits are bereft of any pleading of relevance. The
supplementary affidavits merely set forth the documents and a feeble reasoning
as to why such documents could not be disclosed earlier. Beyond such
pleadings, there is nothing in the affidavits which could be construed
as enlarging the scope of the Writ Petition. The documents
themselves were not considered while rejecting the appellants’ prayer
for filing the supplementary affidavits.
22. The issue regarding maintainability of the appeal has failed to impress
us, primarily, since, the order conclusively seals the fate of the appellants to
rely upon additional documents, which the appellants contend are germane for
adjudication of the disputes in the Writ Petition. The principles of
a judgment under Clause 15 are that it must conclusively decide an issue to be
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construed as a judgment from which an appeal may be preferred. In the
present case, the denial of the rights of the appellants to rely upon additional
documents can safely be construed as a final decision on their rights
to rely upon additional evidence. Thus, the issue of maintainability of the
appeal does not find favour with us.
23. The question of delay is not unfounded. It is true that the affidavits were
prepared to be filed at a rather belated stage, when the original writ petitioners
had already advanced their arguments and indeed concluded the same.
However, the appellants were added as parties to the Writ Petitionand the
respondents, would get an even opportunity to deal with such documents,
upon commencement of their submissions, and there would be no violation of
principles of natural justice. It is not the case of the respondents that the
documents were forged or fabricated, manufactured or procured, or that they
would have to deal with them by way of affidavits. Only that the documents
were disclosed at a belated stage. The original Writ Petitioners having
completed their arguments, the added writ petitioners, appellants herein, were
also entitled to make their submissions, upon conclusion whereof, the
respondents would get an opportunity to address the Court. Thus,
respondents would be at liberty to deal with such documents at the time of
making their submissions. Thus, the decisions relied upon by Mr. Banerjee do
not apply to the facts of the instant case.
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24. The vociferous denial of the rights of the appellants to file such affidavits by the
respondents raises a suspicion in our minds. The matter could have
been finished off and dealt with in 2023 itself, the appeal having been filed in
2023 has been pending since and has been taken up only now in 2025 for
hearing.
25. That delay has occurred, is undeniable. However, the question of delay
cannot be foisted unequivocally on the appellants alone.
26. The last and certainly one of the more important issues raised and decided by
the learned Single Judge in favour of the respondents is that the
disclosure in the supplementary affidavits would enlarge the scope of the Writ
Petition.
27. The specific findings of the learned Judge relate to the enlargement of the
scope of the Writ Petition on account of facts pleaded in the supplementary
affidavits, without adverting to the relevance of the documents disclosed
therewith to adjudicate the disputes and denial of rights in the Writ Petition. We
find from records that the issue of fraud had been raised and argued before
the adjudicating authority and a specific plea had been taken in respect thereof.
In fact, the issue has also been raised in the Writ Petition. The documents
sought to be disclosed by the two supplementary affidavits by the
appellants herein were only to further the case made out in the Writ Petition of
fraud or misrepresentation. Fraud unravels all. Thus, it cannot be said or
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argued that a new case has been made out or was being made out by disclosure
of the documents appended to the supplementary affidavit. The decisions
relied upon by Mr. Mitra are on accepted principles of law. However, in the
present case, it is clear that the documents sought to be disclosed, were in aid of
the issues already pleaded. Clearly, no new case was being made out on the
basis of the supplementary affidavits or the documents annexed thereto.
28. Even otherwise, if the Writ Petitioners/appellants are not permitted to disclose
such affidavits before the learned Single Judge, the possibility of an application
under Order 41 Rule 27 of the Code of Civil Procedure for production of
additional evidence cannot be ruled out at the stage of appeal, if any, of any of
the parties to the proceeding (Writ Petition), were aggrieved by the order and
were to carry it in appeal.
29. The learned Single Judge would be at liberty to consider the documents and
either reject or accept the same as part of the evidence. However, as a Court of
equity and Court of conscience with plenary power and exercising a
constitutional writ jurisdiction, it cannot shut its eyes to documents which a
party submits to be of great relevance for adjudication of the dispute brought
before such Court.
30. Having stated all of the above, we cannot shut our eyes to the fact that even
after the pendency of six years, the added writ petitioners/appellants herein
chose to file supplementary affidavits bringing additional documents on record
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at such a belated stage. The appellants should be put on terms and shall pay
costs assessed at Rs. 30,000/- (Rs. 10,000/- each to R 1, R 7, and R 8) within 10
days to enable them to file such affidavits, by the next date of hearing before the
learned Single Judge
31. In the circumstances aforesaid, we set aside the order of 3rd February
2023, thereby permitting the writ petitioners/ appellants to file their
supplementary affidavits and to proceed with the hearing of the matter.
32. The appeal and the connected applications are disposed of without any order as
to costs.
33. An urgent photostat-certified copy of this order, if applied for, should be made
available to the parties upon compliance with the requisite formalities.
(Reetobroto Kumar Mitra, J.) (Tapabrata Chakraborty, J.)
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