DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Kamal
Sardar, Son of Year Ali Sardar, aged about 42 years, residing at Jagannathpur
Bhangi Para, Post Office – Ramkrishna Pally, Police Station – Narendrapur,
Kolkata – 700150, District – South 24 Parganas, Mobile Number : 7980637121.
______Petitioner
-Versus-
1)
The State of West Bengal, Service
through the Secretary, Department of Urban Development & Municipal Affair,
having it’s office at Nagarayan Bhavan, Block DF 8, Sector I, Salt Lake City,
Second Avenue, Bidhan Nagar, Kolkata – 700064.
2)
Rajpur Sonarpur Municipality, having
its office at Premises being no. 27, Netaji Subhash Chandra Bose Road, Post
Office – Harinavi, Police Station – Sonarpur, District – South 24 Parganas, Pin
– 700148.
3)
The Chairman, Rajpur Sonarpur
Municipality, having its office at Premises being no. 27, Netaji Subhash
Chandra Bose Road, Post Office – Harinavi, Police Station – Sonarpur, District
– South 24 Parganas, Pin – 700148.
4)
The Vice Chairman, Rajpur Sonarpur
Municipality, having its office at Premises being no. 27, Netaji Subhash
Chandra Bose Road, Post Office – Harinavi, Police Station – Sonarpur, District
– South 24 Parganas, Pin – 700148.
5)
The Councilor for Ward no. 8, Rajpur
Sonarpur Municipality, having its office at Premises being no. 27, Netaji
Subhash Chandra Bose Road, Post Office – Harinavi, Police Station – Sonarpur,
District – South 24 Parganas, Pin – 700148.
6)
The Assistant Engineer in Charge PWD, Rajpur
Sonarpur Municipality, having its office at Premises being no. 27, Netaji Subhash
Chandra Bose Road, Post Office – Harinavi, Police Station – Sonarpur, District
– South 24 Parganas, Pin – 700148.
7)
The Sub-Assistant Engineer, Local Office Engineer-in-Charge,
Rajpur Sonarpur Municipality, having office at Premises being no. 149, Haridhan
Chakraborty Sarani, Khirishtala, Police Station – Sonarpur, Kolkata – 700150,
District – South 24 Parganas.
8)
The Geotechnical Engineer, Rajpur Sonarpur Municipality,
having its office at Premises being no. 149, Haridhan Chakraborty Sarani, Khirishtala,
Police Station – Sonarpur, Kolkata – 700150, District – South 24 Parganas.
9)
The Officer in Charge of Police, Naredrapur Police Station,
Kamalgazi More, Naredrapur, Kolkata – 700103, District South 24 Parganas.
____Respondents
10)
M/s. Devaloke Developers Limited, having its Registered
Office at Premises being no. 82, Garia Main Road, Mahamayatala, Post Office
Garia, Police Station – Narendrapur, Kolkata – 700084. Email : sukanta_kundu12000@yahoo.co.in
______Private
Respondents
To
The
Hon’ble Prakash Shrivastava, Chief Justice and His Companion Justices of the
said Hon’ble Court.
The humble petition of the petitioner
above named most respectfully;
SHEWETH:
1. That
the Petitioner is Citizen of India, and has been residing at the address given
in the cause title of the application.
2. That
a plot of land measuring about 29 decimals under C.S. Dag no. 438, R.S. Dag no.
438, L.R. Dag no. 480, R.S. Khatian no. 120, under Mouza – Jaganathpur, Police
Station – Sonarpur, at present Naredrapur, District – South 24 Parganas is a
joint property wherein the petitioner is one of the co-sharers. For getting his
share the petitioner has filed a partition suit, being T.S. no. 112 of 2022,
before the Learned Civil Judge ( Senior Division) at Baruipur, South 24
Parganas. The said Suit is pending before the Learned Court below. The Private
respondent has been made a party to the said suit since they have encroached
the said joint property of the petitioner. The Learned Court below has been
pleased to grant ad-interim order of injunction by order dated 08-03-2022. With
extension, the said order is still continuing.
Photostat copy of the said order
of ad-interim injunction, and plaint in the partition suit are annexed herewith
and marked as Annexure “P-1” Collectively.
3. That
the Private respondent being a Developer has started construction in the name
and style “Devaloke Sonar City” by encroaching the land of the petitioner,
which is yet to be partitioned by the Learned Court below.
4. That
the Record of right stands in the name of predecessors in interest of the
petitioner. Neither the petitioner nor his predecessors transferred any portion
of the aforestated plot of land in favour of any body.
Leave may be granted to produce a
copy of the record of rights, if required, before the Hon’ble Court at the time
of hearing of the Writ Petition.
5. That
the concerned respondents being Rajpiur Sonarpur Municipality has sanctioned a
building plan, for Development of plots of Land including that of the
petitioner without getting no objection of the petitioner.
6. That
the Petitioner having seen development work on the suit plot of land belonging
to the petitioner and his co-sharers, has made a representation before the
respondents, praying for stoppage of construction work being made by the
private respondent. Surprisingly, the said respondents, even after getting
notice, are allowing the private respondent to continue the illegal work for
which the petitioner is facing irreparable loss and injury.
Photostat copy of the said
representation is annexed herewith and marked as Annexure “P-2”.
7. That
the petitioner states and submits that the concerned respondent, cannot allow
the private respondent to continue its construction work on the plot of land
belonging to the petitioner and his co-sharers.
8. That
the Petitioner states and submits that the concerned respondent being statutory
body has no authority to sanctioned building plan on a plot of land which does
not belong to the private respondent. Inspite of having knowledge about such
illegality, the respondent are sitting tight over the issue which is patently
wrong and therefore illegal.
9. That
the Petitioner states and submits that a civil suit is pending wherein the
private respondent is a party. The Civil Court has already passed an order of ad-interim
injunction; still the private respondent is continuing with the illegal
construction work. The concerned respondent has been intimated about the
interim order of the Learned Court below, inspite of that the private
respondent is being allowed to continue with illegal construction work, which
will affect the suit.
10. That
the Petitioner states and submits that the respondents must appreciate that
they have committed wrong in sanctioning building plan in favour of the private
respondent. As such they must restrained the private respondent immediately in
continuing the construction work.
11. The
petitioner being aggrieved and dissatisfied with the action on the part of the
respondent concerned begs to move the instant application under Article 226 of
the Constitution of India on the following amongst other:-
GROUNDS
I.
For that the concerned respondent,
cannot allow the private respondent to continue its construction work on the
plot of land belonging to the petitioner and his co-sharers;
II.
For that the concerned respondent
being statutory body has no authority to sanctioned building plan on a plot of
land which does not belong to the private respondent. Inspite of having
knowledge about such illegality, the respondent are sitting tight over the
issue which is patently wrong and therefore illegal;
III.
For that a civil suit is pending
wherein the private respondent is a party. The Civil Court has already passed
an order of ad-interim injunction; still the private respondent is continuing
with the illegal construction work. The concerned respondent has been intimated
about the interim order of the Learned Court below, inspite of that the private
respondent is being allowed to continue with illegal construction work, which
will affect the suit;
IV.
For that the respondents must
appreciate that they have committed wrong in sanctioning building plan in
favour of the private respondent. As such they must restrained the private
respondent immediately in continuing the construction work.
12. That the petitioner states that the records of
the instant case are lying outside the ordinary original jurisdiction of the
Hon’ble Court.
13. That
the petitioner states that the petitioner have made complaints to the municipal
authorities for immediate redressal of the grievances but no steps have been
taken by the municipal authority till date as such, a demand seeking justice
would be an empty formality.
14. That
the petitioner humbly submits that there is no other remedy available to it and
the prayers as made herein, if allow shall redress the petitioner’s grievances
effectively.
15. That
the petitioner states that due to paucity of time some facts may not have been
incorporated and your petitioner craves leave to file supplementary affidavit
and your petitioner further crave leave to produce and refer to relevant
papers/ documents at the time of hearing by way of filling a supplementary
affidavit.
16. That
this application is made bona fide and in the interest of justice.
In the
circumstances the petitioner most humbly prays before the Hon’ble Court that
Your lordships’ would graciously be pleased to pass the following orders:-
a)
A writ in the nature of mandamus directing the concerned
respondent authorities their men, agents and subordinates to cancel
the sanctioned building plan issued in favour of the Private respondent;
b)
A writ in
the nature of mandamus directing the respondent authorities their men, agents
and subordinates to stop immediately the construction work
being carried out by the private respondent, and to restore the land of the
petitioner and his co-sharers to its original position, as
it was there, till such began;
c)
A writ in the nature of mandamus directing the
respondent authorities their men, agents and subordinates immediately initiate
an appropriate proceeding against the private respondents for raising unlawful,
illegal and unauthorized construction;
d)
A writ in the nature of mandamus directing the
concerned respondent authorities their men, agents and subordinates to take
appropriate penal action as against the private respondents in accordance with
law on the complaint already made in this behalf;
e)
A writ in the nature of certiorari directing the
respondent to produce all relevant records before the Hon’ble Court for proper
adjudication;
f)
Rule NISI in terms of prayers (a) to (d) above.
g)
An ad-interim order to stop the unlawful,
illegal and unauthorized construction at the premises of the petitioner, till
the disposal of the instant writ application.
h)
An appropriate order directing the respondent
authorities to file a report in this regard before the Hon’ble Court.
i)
Such other or further order or orders as your
Lordships may deem fit and proper.
And the petitioner as in duty bound shall ever
pray.
AFFIDAVIT
I, Sri Kamal Sardar,
Son of Year Ali Sardar, aged about 42 years, by faith Muslim, by Occupation
Business, residing at Jagannathpur Bhangi Para, Post Office – Ramkrishna Pally,
Police Station – Narendrapur, Kolkata – 700150, District – South 24 Parganas, do
hereby solemnly affirm and say as follows:
1. That I am the petitioner of this
application and I am well acquainted with the facts and circumstances of the
case.
2. That the
statements made in paragraph No. 1,2,3,5,6, & 7, are true to my knowledge
and those made in paragraphs 4,8, &
9, are true to my information derived from the records of the case and rest
paragraphs are my respectful submission before this Hon’ble Court.
Prepared in my office The deponent is
known to me
Advocate Clerk to: Mr. Advocate
Solemnly affirmed before me
on this the day of June, 2022.
I certify that all annexures
are legible.
Advocate.
COMMISSIONER
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Sri
Kamal Sardar
………..Petitioner
-Versus-
The
State of West Bengal & Ors.
……Respondents
WRIT PETITION
MR.
ASHOK KUMAR SINGH
Advocate
Bar
Association, Room No.15,
High
Court, Calcutta.
(M)
9883070666.
Email
: aksinghadvocate@rediffmail.com
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
Subject
matter relating to-
Under
Group V , Head , of the Classification List;
Cause
title
Sri
Kamal Sardar
………..Petitioner
-Versus-
The
State of West Bengal & Ors.
……Respondents
Advocate-on-Record
MR. ASHOK KUMAR SINGH.
Advocate
Bar Association Room No.15,
High Court, Calcutta.
Mobile Number : 9883070666,
Email :
aksinghadvocate@rediffmail.com
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Sri
Kamal Sardar
………..Petitioner
-Versus-
The
State of West Bengal & Ors.
……Respondents
Index
|
Sl. No. |
Description of Documents |
Annexure |
Page No. |
|
1. |
Writ Petition |
- |
|
|
2. |
order of ad-interim injunction, and
plaint in the partition suit |
“P-1” |
|
|
3. |
Representation of the Petitioner |
“P-2” |
|
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. of
2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In the matter of:
Sri Kamal Sardar
………..Petitioner
-Versus-
The State of West Bengal & Ors.
……Respondents
SYNOPSIS
The Private
respondent has been sanctioned building plan for construction on a plot of land
which does not belong to him. The petitioner being one of the co-sharers of the
suit plot of land, never gave no objection to anybody. As such his property
cannot be developed by the Private respondent, which the respondent must
appreciate.
LIST OF DATES
03-03-2022 illegal & unauthorized construction and erection of
structure started by the private respondents
08-03-2022 Partition Suit filed
08-03-2022 Order of ad-interim
injunction
30-05-2022 Representation by the petitioner
Till date The private respondent is carrying on with the said
unlawful, illegal and unauthorized construction.
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of
2022;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Sri
Kamal Sardar
………..Petitioner
-Versus-
The
State of West Bengal & Ors.
……Respondents
LIST OF DATES
03-03-2022 illegal & unauthorized construction and erection of
structure started by the private respondents
08-03-2022 Partition Suit filed
08-03-2022 Order of ad-interim
injunction
30-05-2022 Representation by the petitioner
Till date The private respondent is carrying on with the said
unlawful, illegal and unauthorized construction.
POINTS
OF LAW
Whether the
respondents can sanctioned building plan in favour of the private respondent on
a plot of law which is owned by the petitioner and other co-sharers ?
Whether pendency of a
suit for partition wherein the private respondent is a party can stop illegal
construction by the private respondent ?
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