S.B. Sinha, J. -
(1.)The Petitioners in this writ application have, inter alia, prayed for the following relief 's:
(a) Issue a writ or in the nature of a writ of Mandamus directing the Respondents and each one of them to withdraw and/or to cancel and/or to set aside the Order of Sanction passed by the Bidhan Nagore Notified Area Authority and also the Circular dated 4th January, 1994, being Annexure 'F' to this writ application issued by the Chairman, Purbachal Nabarun Housing Co -operative Society Ltd. on the basis of the Order of Sanction for the extension of the flats of DCH -I, Cluster -1, Purbachal," Salt Lake City, Calcutta -91 (Sanction Order) of which has not been served upon the writ Petitioner;
(b) Issue a Writ of Mandamus directing the Respondents and each one of them and/or their Agents to act in accordance with law and further direct them to demolish any structure and/or extension of any flats or apartments at DCH -1, Cluster I, Purbachal. Salt Lake City, Calcutta -91, if any made and/or constructed by any of the apartment owners on view of such illegal Order of Sanction passed by the Bidhan Nagar Notified Area Authority with immediate effect.
(c) Grant of an order of Injunction restraining the Respondents and each one of them and/or their Officers and/or their Subordinates from giving any effect or any further effect to the Order of Sanction passed by the Bidhan Nagore Notified Area Authority, for the extension of DCH -I Flats Cluster -I, Purbachal, Salt Lake City, Calcutta -91, and also the Circular dated 4th January, 1994; issued by the Chairman, Purbachal Nabarun Co -operative Housing Society Ltd., being Annexure 'F' to this writ application.
(2.)The fact of the matter is as follows: In December 1980 an advertisement was issued by the West Bengal Housing Board inviting applications from public for registration of flat/houses at Salt Lake, Sector -Ill, GA Block (now Purbachal Housing Estate). Pursuant thereto the Petitioners applied for registration of flats. Brochure of the Housing Scheme was published by the West Bengal Housing Board containing the details of the terms and conditions in May 1982. The Petitioners applied for allotment of apartments. The Petitioners were allotted apartments upon drawing a lottery by the West Bengal Housing Board for 999 years. The Petitioner No. 1 allegedly obtained loan from the Central Government in September 1984. According to the Petitioners, West Bengal Housing Beard had laid down two different types of payment/considerations, namely, (a) Full payment at a time and (b) payment by instalment. On or about December 14, 1983, a deed of lease was executed by West Bengal Housing Board. There appears to be some controversy whether the said deeds were executed in favour of the allottees or in favour of the Purbachal Nabarun Co -operative Housing Society Ltd. It is not disputed that the Petitioners are the members of the said Co -operative Society. It also appears that the Petitioners and the Co -operative Society requested West Bengal Housing Board that said apartment be conveyed in favour o? the Society. The possession of the said flat was given in favour of the Petitioners upon execution of a Deed. It is also not in dispute that declarations have been made by the Petitioners in terms of the provision of West Bengal Apartment Ownership Act, 1972. It is stated that the apartment has been mortgaged with the West Bengal Housing Board on December 14, 1983, for the balance premium with interest thereon. On January 27, 1989, a deed of re -conveyance (Release) by the Purbachal Nabarun Co -operative Housing Society Ltd. was executed in favour of the Petitioners. It appears that several meetings were held by the members of the concerned Co -operative Society with regard to the question as to whether the allottee should make extension or not. Majority of the members, however, it is admitted, agreed to such extension pursuant to the resolution adopted in the meeting of the said Co -operative Society, and the Respondent Co -operative Society applied for and sanction was granted for extension of the apartment to the extent of 270 sq.ft. by the Bidhan Nagar Notified Area Authority. The said sanction was granted on November 22, 1993. The Respondent Co -operative Housing Society issued a Circular letter dated January 4, 1994, to each member stating that the Bidhan Nagar Notified Area Authority had accorded sanction for the proposed extension of the flats in Cluster -I. The Petitioner filed a writ application in this Court on January 20, 1994, praying, inter alia, for the following relief 's:
(a) Issue a writ or in the nature of a writ of mandamus directing the Respondents and each one of them to withdraw and/or cancel and/or to rescind the Circular dated 4th January, 1994, issued by the Chairman, Purbachal Nabarun Co -operative Housing Society Ltd., being Annexure 'F' to this application, being bad and illegal since ultra vires.
It is stated that in the said writ application, Ruma Pal J. passed some interim order which being for a limited period expired. According to the Petitioner, as despite several attempts the said matter could not be listed, a second writ application was filled praying for identical relief 's. On May 20, 1994, the second writ application was dismissed by Tarun Chatterjee J. On July 11, 1994;
Tarun Chatterjee J. dismissed the first writ application holding as follows:
Therefore, from the same if is evident that the Chairman of the Society gives permission to the flat owners to extend their flats. In my view, even it a dispute arises as to whether such permission can be granted by the Chairman of the Society to its members, such dispute being purely a private dispute is not amenable to the writ jurisdiction of this Court. Therefore, without deciding the said dispute. I dismiss this writ application on the ground that such dispute is not amenable to the writ jurisdiction of this Court.
(3.)The statement made in that writ application to the effect that the writ application has maintainable as an order of sanction was passed by the Bidhan Nagore Notified Area Authority directing the Respondent Cooperative Housing Society to extend respective flats in question. However, the learned Judge found that no challenge has been thrown against the said order of sanction. The learned Judge therefore observed as follows:
That being the position, in this writ application, I am not called upon such question to be decided by the appropriate forum. I make it clear that I have not gone into the merits of the disputes raised against the said circular, nor I have gone into the merits as to whether the Bibhan Nagore Notified Area Authority has any authority to grant sanction to the cooperative Society or its members to extend their flats in question. All questions are left open to be decided by any other appropriate forum. However, it appears that leave was sought for, for filing an amendment application to the said writ application which was also dismissed stating that the same cannot be permitted now because the subject -matter of the dispute in the writ petition and the nature of amendment sought for at this stage are totally different. The learned Judge observed as follows:
However, the writ Petitioner may take appropriate steps against the order of sanction issued by the Bidhan Nagore Notified Area Authority permitting the Co -operative Society and its members to extend their respective flats in question, in any appropriate forum.