DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT AT
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P.
No. (W) of 2013
In the Matter of
An
application under Article 226 of the Constitution of India
And
In the
Matter of
A writ
in the nature of Mandamus and/or in the nature of Certiorari and/or in the
nature of Prohibition and/or any such other appropriate writ/writs, order/
orders and/or direction/ directions under the Constitution of India
And
In the Matter of
Violation
of Articles 14 and 21 of the Constitution of
And
In the Matter of
Section 34 of The Registration
Act’ 1908, read with Rule 52 of the West Bengal Registration Rules 1962;
And
In the Matter of
Form No. 2, Register Book Nos.
2, Record of reasons for refusal to register [ See Rule 3 and 58 (1 ) ] Reasons
of Refusal – Partial Refusal No. 00015/2011 – Reason – The Executant fails to
appear and admit execution within the prescribed time. ( Under Section 34 read
with rule 52 ) Hence the registration of this document is refused partly in
respect of Harsh Verdhan Patodia under Section 34 of Registration Act of 1908
and records it as Book II of 00015 / 2011, dated 29 December 2011, by A.R.A. –
I, Kolkata, 5, Govt. Place ( North ), Kolkata – 700 001, Kolkata ;
And
In the
Matter of
Partly
refusal of Deed Serial No. 07158 for the year 2010, by the Order dated 29 December – 2011, by
A.R.A. – I, Kolkata, 5,
And
In the
matter of
Certificate
of Registration under Section 60 and Rule 69, as Registered in Book no. I, CD
Volume number 25, Pages from 7574 to 7605 being no. 11451 for the year 2011,
given by Sri Sadhan Chandra Das, Additional Registrar of Assurance – I, of
Kolkata, dated 16-February-2012;
And
In the Matter of
The Registration Act’ 1908, and
the
And
In the Matter of
Exercise of jurisdiction illegally
without applying proper independent mind on the part of the concerned
respondent authorities;
And
In the Matter of
Violation of the Principles of
Natural Justice;
And
In the Matter of
Mr. HARSH VARDHAN PATODIA, Son
of Sri Gopal Prasad Patodia, residing at premises being no. 5F/2, New Road,
Alipore, Police Station – Alipore, Kolkata – 700 027;
………………. Petitioner
Versus
1)
The Registrar of
Assurances, Kolkata, having Office at premises being no. 5,
2)
The Additional
Registrar of Assurance – I, Kolkata, having Office at premises being no. 5,
3)
The Inspector
General of Registration, Registration Directorate, F – Block, Top Floor,
Writers’ Building, Kolkata – 700 001.
4)
The Inspector
General of Registration & Commissioner of Stamp Revenue, West Bengal,
Writers Building, Block – F, Top Floor, Kolkata – 700 001.
5)
The Joint Inspector
General of Registration, Govt. of West Bengal, having Office at West Bengal,
Writers Building, Block – F, Top Floor, Kolkata – 700 001.
…………. Respondents
6)
Sri Sanjay Sarkar, Son of Late Sunil Sarkar,
residing at premises being no. 1/11B/4, Kalibari Lane, Police Station –
Jadavpur, Kolkata – 700 032.
……Private Respondent
To
The Hon’ble Mr. Arun Mishra, The
Chief Justice and His Companion Justices of The Said
The humble petition of the
petitioner above-named most respectfully
Sheweth:
1.
That your
petitioner is a law-abiding citizen of
2.
That the
Petitioner is a one of the partner of M/s. Sherwood Estate Developers, a
partnership firm having its principal place of business at No. 207, Acharya
Jagadish Chandra Bose Road, Police Station – Beniapukur, Kolkata – 700 017, and
the Constituted Attorney of M/s. Srijan Realty Limited ( formerly known as M/s.
Srijan Projects Private Limited ), a company within the meaning of the
Companies Act 1956, having its office at No. 36/1A, Elgin Road ( now known as
Lala Lajpat Rai Sarani ), Police Station – Bhawanipore, Kolkata – 700 020, and
103 others as 1) M/s. Solidex Vinimay Private Limited, having registered Office
at premises being no. 10/1A, Vivekanand Road, Kolkata – 700 006, 2) M/s.
Frontrade Vinimay Private Limited, having registered Office at premises being
no. 10/1A, Vivekanand Road, Kolkata – 700 006, 3) M/s. Ulekh Sales Agency
Private Limited, having registered office at premises being no. 156A, Lenin
Sarani, Kolkata – 700 013, 4) __________,
A Xerox copy of the General
Power of Attorney and authorisation Letter are annexed herewith and marked as Annexure
P-1 to this application.
3.
That the
Petitioner executed an Indenture of Conveyance being Serial no. 07158 of 2010, as
on 08-09-2010, at the private residence of one Sri Sanjay Sarkar, Son of Late
Sunil Sarkar, residing at premises no. 1/11B/4, Kalibari Lane, Police Station –
Jadavpur, Kolkata – 700 032, who is a Constituted Attorney of Purchaser 1)
Santanu Das, Son of Late Chittaranjan Das and 2) Anannya Das, Wife of Sri
Santanu Das, both are residing at Flat no. 4B, 4th Floor, Block E,
Sherwood Estate, 169, N.S.C. Bose Road, Narednrapur, Police Station – Sonarpur,
Kolkata – 700 103, in respect of Flat no. 4B, on the 4th Floor of
the building being Building Block No. E, containing an area of 1050 Sq. ft. of
Built up area ( Super Built up area being 1329 Sq. ft. ), with 1 ( one )
covered car parking spaces in the basement bearing no. 46 in Block E of
Sherwood Estate, together with the undivided proportionate share in the land
underneath the building, with all other common spaces and amenities, presented
by said Sri Sanjay Sarkar.
A Xerox copy of the Deed being
no. 11451 of 2011, is annexed herewith and marked as Annexure P-2 to
this application.
4.
That at
the time of presentation of the said Indenture of Conveyance being Serial no.
07158 of 2010, your Petitioner put his signatures and thumb impressions on the
necessary pages of the said Indenture in the presence of the Private
Respondent, as well as in the presence of the Respondent no. 2, herein, though
mistakenly and or in the circumstances respondent no. 2, herein forget to ask
your petition to put his signature at the reverse of Non judicial stamp papers,
as to first page of the said Indenture of Conveyance.
5.
That as
soon as the facts of such anomalies at the time of execution of the said
Indenture of Conveyance, has came to knowledge, your petitioner contacted the
respondent no. 2, herein, and whereas the respondent no. 2, communicated orally
about misplacement of the said Deed being Serial No. 07158 of 2010, though your
petitioner visited the office of the respondent no. 2, herein on several
occasion but did not yield anything about such Indenture of Conveyance.
6.
That the
Private Respondent tried off and on and lastly get the Original Deed of
Indenture of Conveyance as on 16-02-2012, being the Deed no. 11451 for the year
2011, after the expiry of more than one and half year, and whereas it has been
found that the respondent no. 2, passed an order of partial refusal in respect of the execution
of your petitioner under Form no. 2, dated 29-December-2011, in accordance with
Section 34 of the Registration Act’ 1908 and Rule 52 of the West Bengal
Registration Rules 1962, and the same has been directed to register in Book no.
II, as being no. 00015 of 2011.
7.
That
your Petitioner made representation against such part refusal of the Deed being
Serial no. 07158 of 2010, to the respondent no. 2, herein and to the respondent
no. 3, vide his Letter dated 4th June 2012, though no reply has ever
been communicated by the respondents.
A Xerox copy of the Letter dated
4th June’ 2012, is annexed herewith and marked as Annexure P-3
to this application.
8.
That
your Petitioner once again made his representation through his Learned Advocate
Sri Apurba Mondal, vide Letter dated 16-07-2012, to the respondent no. 2 and
respondent no. 3, and whereas the Learned Advocate received one Post from the
office of the Respondent no. 4, herein and the said post contain one Memo no.
2807/1M-248/11, dated 03-08-2012, wherein the respondent no. 5, directed the
respondent no.1, herein as to look into the matter of Letter submitted by your
Petitioner’s Learned Advocate and for report in that regards, and whereas the
said memo copy has been communicated to the Learned Advocate of your
Petitioner, though nothing has ever been communicated by the Respondent no. 1,
herein.
A Xerox copy of the Learned
Advocate’s Letter dated 16-07 2012, and Memo no. 2807/1M-248/11, dated
03-08-2012, wherein the respondent no. 5, are annexed herewith and marked as Annexure
P-4 to this application.
9.
That the
Respondent authorities did not provide any opportunity to your petitioner to
execute the said Indenture of Conveyance as Deed being Serial no. 07158 of
2010, and did never issue any notice and or summons to appear before the
respondent no. 2, for the execution of the said Deed, and whereas even though
your Petitioner made several attempt for such execution, he has been refused by
the respondent no. 2, on the pretext of misplacement of such Deed, with the
concerned Department of the respondent no. 2, and thus the petitioner become
victim of the circumstances thrown by the respondent no. 2, herein.
10.
That the Respondent authorities violate the
principle of natural justice as such the respondent no. 2, did never act in
accordance with Section 23 of the Registration Act’ 1908, and did not take any endeavour
to ask your petitioner to be present in his office and to execute the said Deed
being serial no. 07158 of 2010, dated 08-09-2010, within a period of four month
from the said date of presentation of the said Deed.
11.
That the
Respondent Authorities violates the rights and opportunity of your petitioner,
as granted under the Provisions of Article 14 and Article 21 of the
Constitution of India.
12.
That the
respondent authorities, being the statutory authorities should, have acted without
any prejudice and bias, and should have carry out their duties towards the
societies, which they have failed to carry out, at least in the instant
circumstances, thereby committing complete violation of principle of natural
justice.
13.
That the
purported acts and/or activities of the respondent authorities are arbitrary,
unreasonable, unjust, unfair and without any jurisdiction and are therefore
liable to interfered with.
14.
That the
purported acts and/or actions/inactions on the part of the respondent
authorities, being discriminatory and unreasonable, are violative of the rights
protected under Article 14 of the Constitution of India.
15.
That after
being highly aggrieved by and dissatisfied with the purported acts and/or
actions and/or inactions on the part of the respondent authorities relating to
purported Form No. 2, Register Book Nos. 2, Record of reasons for refusal to
register [ See Rule 3 and 58 (1 ) ] Reasons of Refusal – Partial Refusal No.
00015/2011 – Reason – The Executant fails to appear and admit execution within the
prescribed time. ( Under Section 34 read with rule 52 ) Hence the registration
of this document is refused partly in respect of Harsh Verdhan Patodia under
Section 34 of Registration Act of 1908 and records it as Book II of 00015 /
2011, dated 29 December 2011, by A.R.A. – I, Kolkata, 5, Govt. Place ( North ),
Kolkata – 700 001, Kolkata, your petitioner begs to move this application under
Article 226 of the Constitution of India before Your Lordship on the following
amongst other
G R
O U N
D S
I.
For that
the impugned actions/inactions are wholly illegal and without jurisdiction and
ultravires Article 14 of the Constitution of India.
II.
For that
the impugned actions on part of the respondent authorities are colourable,
arbitrary and discriminatory.
III.
For that
Form No. 2, Register Book Nos. 2, Record of reasons for refusal to register [
See Rule 3 and 58 (1 ) ] Reasons of Refusal – Partial Refusal No. 00015/2011 –
Reason – The Executant fails to appear and admit execution within the
prescribed time. ( Under Section 34 read with rule 52 ) Hence the registration
of this document is refused partly in respect of Harsh Verdhan Patodia under
Section 34 of Registration Act of 1908 and records it as Book II of 00015 /
2011, dated 29 December 2011, by A.R.A. – I, Kolkata, 5, Govt. Place ( North ),
Kolkata – 700 001, Kolkata ; as, is not in accordance with the Law, since the
petitioner has not ever been asked thorough any notice and or summons to appear
and or to execute the said Deed being Serial No. 07158 of 2010, before the
Respondents nos. 2, and in absence of the petitioner the conclusion / decision
has been formed arrived without following the provisions of Law.
IV.
For that your Petitioner made representation
against such part refusal of the Deed being Serial no. 07158 of 2010, to the
respondent no. 2, herein and to the respondent no. 3, vide his Letter dated 4th
June 2012, though no reply has ever been communicated by the respondents.
V.
For that
your Petitioner once again made his representation through his Learned Advocate
Sri Apurba Mondal, vide Letter dated 16-07-2012, to the respondent no. 2 and
respondent no. 3, and whereas the Learned Advocate received one Post from the
office of the Respondent no. 4, herein and the said post contain one Memo no.
2807/1M-248/11, dated 03-08-2012, wherein the respondent no. 5, directed the
respondent no.1, herein as to look into the matter of Letter submitted by your
Petitioner’s Learned Advocate and for report in that regards, and whereas the
said memo copy has been communicated to the Learned Advocate of your
Petitioner, though nothing has ever been communicated by the Respondent no. 1,
herein.
VI.
For that
the Respondent authorities did not provide any opportunity to your petitioner
to execute the said Indenture of Conveyance as Deed being Serial no. 07158 of
2010, and did never issue any notice and or summons to appear before the
respondent no. 2, for the execution of the said Deed, and whereas even though
your Petitioner made several attempt for such execution, he has been refused by
the respondent no. 2, on the pretext of misplacement of such Deed, with the
concerned Department of the respondent no. 2, and thus the petitioner become
victim of the circumstances thrown by the respondent no. 2, herein.
VII.
For that
the Respondent authorities violate the principle of natural justice as such the
respondent no. 2, did never act in accordance with Section 23 of the
Registration Act’ 1908, and did not take any endeavour to ask your petitioner
to be present in his office and to execute the said Deed being serial no. 07158
of 2010, dated 08-09-2010, within a period of four month from the said date of
presentation of the said Deed.
VIII.
For that
the Respondent Authorities violates the rights and opportunity of your
petitioner, as granted under the Provisions of Article 14 and Article 21 of the
Constitution of India.
IX.
For that
the respondent authorities, being the statutory authorities should, without any
prejudice and bias, carry out their duties towards the societies, which they
have ignored to carry out, at least in the instant circumstances.
X.
For that
the purported acts and/or activities of the respondent authorities are
arbitrary, unreasonable, unjust, unfair and without any jurisdiction and are
therefore liable to interfered with.
XI.
For that
the purported acts and/or actions/inactions on the part of the respondent
authorities, being discriminatory and unreasonable, are violative of the rights
protected under Article 14 of the Constitution of India.
XII.
For that
the acts and conducts of the respondent authorities are illegal, mala fide,
arbitrary and dehors of all cannons of law.
16.
That
Your petitioner states that there is no other speedy or efficacious remedy
other than taking recourse to the Constitutional Writ Jurisdiction of Your
Lordship and the remedies will be completed, if the prayers made herein are
granted.
17.
That
Your petitioner states that he has not moved any other application in this
18.
That the
application is made bona fide and for the ends of justice.
Under the aforesaid
circumstances, Your petitioner most humbly prays that Your Lordship may
graciously be pleased to issue
a)
a writ
in the nature of Mandamus directing the
respondents, their officers, agents and servants to forthwith withdraw / cancel
/ quash / set aside the endorsement as to Partly refusal of Deed Serial No.
07158 for the year 2010, by the Order
dated 29 December – 2011, by A.R.A. – I, Kolkata, 5,
b)
a writ
in the nature of Mandamus directing the
respondents, their officers, agents and servants to forthwith issue notice and
or summons to your petitioner herein as to appear before the authority of the
respondent no. 2, and to take all possible endeavour for the execution of Deed
being Serial no. 07158 of 2010, upon receipt of the Original Deed being no.
11451 for the year 2011, and to give and or provide the complete Deed being no.
11451 for the year 2011 to the claimant;
c)
a writ
in the nature of Mandamus directing the
respondents, their officers, agents and servants to restraining themselves from
causing any proceeding in accordance with the said Memo being no. 2807 /
1M-248/11, dated 03-08-2012, issued by the respondent no. 5;
d)
a writ
in the nature of Certiorari do issue commanding the Respondents to transmit and
certify the entire records relating to this case so that conscionable justice
may be administered;
e)
Rule
NISI in terms of prayers (a) (b), (c) and (d) above;
f)
Rule be
made absolute;
g)
Interim
order of injunction restraining the respondents authorities and / or their
agents, men, and subordinates and / or associates to take any steps in hot
haste and to cause any proceeding in accordance with the Memo being no. 2807 /
1M-248/11, dated 03-08-2012, issued by the respondent no. 5, till disposal of this application;
h)
Ad
interim order in terms of prayer ( g ) above;
i)
Any
other relief / reliefs to your Petitioner;
j)
Costs;
k)
And to
pass such other further appropriate order/orders and/or direction/directions as
Your Lordship may deem fit and proper.
And your
petitioner as in duty-bound shall ever pray.
A F F I
D A V I T
I, Shri Harsh Vardhan Patodia,
Son of Shri Gopal Prasad Patodia, aged about …………….. years, by faith Hindu, by
occupation Business, resaiding at premises being no. 5F/2, New Road, Alipore,
Police Station – Alipore, Kolkata – 700 027, do hereby solemnly affirm and say
as follows:
1.
I am the
petitioner in the instant writ application, I am well-acquainted with the facts
and circumstances of the case and as such I am competent to affirm this
affidavit.
2.
That the
statements made in Paragraphs ______to ________ are true to my knowledge, those
made in _____________________ and _____ are true on the basis of records and
the rest are my humble submission before
|
Prepared in my Office |
Deponent |
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Identified
by me |
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Advocate |
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Clerk
to: - |
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Advocate |
C O M M I S S I O N E R
DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT
AT
CONSTITUTIONAL
WRIT JURISDICTION
APPELLATE SIDE
W. P. No. (W) of 2013
In the Matter of
Shri Harsh Vardhan Patodia,
………… Petitioner
Versus
The Registrar of
Assurances, Kolkata, and others.
……… Respondents
An Application under Article 226 of
the Constitution of India
Advocate – On – Record :
Ashok Kumar Singh
Advocate,
Bar Association, Room No. 15
High Court, Calcutta
Mobile No. : 9883070666.
