Calcutta High Court (Appellete Side)
(Sk. Nadir & Anr vs The State Of West Bengal & Ors.) on 10 July, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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35
10.07. 2014
rrc W. P. 18935 (W) of 2014
(Sk. Nadir & Anr. Vs. The State of West Bengal & Ors.)
Mr. Srijib Chakraborty
Soumyadeep Das
....For the petitioners
Mr. Sadhan Roy Chowdhury
Mr. Aniruddha Sen
....For the State
Mr. Aloke Kumar Ghosh
Ms. Sima Chakraborty
....For the K.M.C.
Mr. Prangopal Das
Mr. Sounak Bhattacharya
....For the respdt. nos. 9, 10, 12
to 15
Mr. A. Mukherjee
Mr. Chiranjib Sinha
....For the respdt. no. 11
The petitioners along with their siblings have instituted a suit,
being Title Suit No. 240 of 2011, in the district court at Alipore,
inter alia, claiming declaration and permanent injunction against
the private respondents herein in respect of an immovable property.
The prayers read as follows: -
"a) A Decree of Declaration that the purported agreement dated 30.03.2009 is stand cancelled in accordance with the letter dated 05.05.2009 send by the Ld. Advocate of the plaintiffs.
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b) A Decree of Declaration that the defendants have no right to carry construction work of building at the suit property without consent of the plaintiffs.
c) A Decree of Declaration that the Premises No. 9/1, Gora Chand Road, P.S. Beniapukur, Kolkata - 700 014 which has been forcibly occupied, taken and illegally amalgamated by the defendants in their own premises being Nos. 8 & 9, Gora Chand Road, P. S. Beniapukur, Kolkata -
700 014 are unlawful and illegal and as such the sanction plan whatsoever if any are liable to be cancelled and the present structure is declared to be illegal constrution and shoud be demolished in accordance with the law, rules and act of Building of K.M.C.
d) A Decree of Permanent Injunction restraining the defendants and their men and agents from any further demolishing of the suit property and from carrying any construction work at the premises No. 8, Gora Chand Road, P.S. Beniapukur, Kolkata - 700 014." Prayer for injunction made by the plaintiffs has been refused by the civil court.
The petitioners had the occasion to invoke the writ jurisdiction of this Court in November, 2011 praying for direction upon the police, the Kolkata Municipal Corporation and the Thika Controller,
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to protect their lives and properties and their family members and to take action on the complaint which has been lodged by them and to restore immediately the water connection, drainage connection and all other basic amenities alleged to have been illegally disconnected. Prayer was further made for direction upon the Corporation to produce the papers and documents relying on which permission has been granted for construction of a multi-storied building stated to be on a thika property. It was also prayed that the private respondents be restrained from demolishing the existing tiled-shed house on the thika property.
The writ petition was disposed of by a learned Judge of this Court on 28th November, 2011 by passing the following order: -
"It appears from a perusal of the plaint, a copy of which has been filed today and the writ petition that the reliefs sought for overlap. I find that the Thika Controller, the respondent no. 7 is not a party to the civil suit. However, the petitioners have filed a representation dated 17th October, 2011 before the Thika Controller.
Therefore, considering the facts and circumstances of the case, the writ petition is disposed of by directing the respondent no. 7 to dispose of the said representation dated 17th October, 2011 by passing a reasoned order within eight weeks from the date of communication of this order after giving opportunity of hearing to the petitioner no. 1 who shall represent the other petitioners and the respondent nos. 9 to 15 or their representatives and the Kolkata Municipal Corporation.
I make it clear that I have not gone into other points raised save and except the issue raised before the Thika Controller as, in my view, the matter is pending before the civil court."
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It would appear from the order dated 28th November, 2011 that apart from the point that the property in dispute may be a thika property, no other point was examined on merits because of pendency of the civil suit. Now that the private respondents have started demolition of a part of the property in dispute in the absence of injunction having been granted by the civil court, the petitioners have moved this writ petition dated 2nd July, 2014 inter alia, praying for the following relief: -
"b) Issue a writ of or in the nature of or in the nature of Mandamus commanding the respondent police authorities each one of them, their men, agents and assigns to take firm legal actions against the private respondents and to initiate criminal proceedings against the private respondents upon the complaint of the petitioners;
c) Issue a writ of or in nature of Mandamus directing the private respondents each one of them directing their men, agents and assigns to abide by the solemn order dated 19.03.2014 passed by the Learned Executive Magistrate Sealdah in M.P. Case No. 171 of 2014 and 610 of 2014;
d) Issue a writ of or in the nature of Prohibition restraining the private respondents not to make any illegal construction at the premises of the petitioners;
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e) Issue a writ of or in the nature of Mandamus directing the private respondents not to cause any harm to the petitioners' life, limb, property and their right, title and interest and further direct the respondent police authorities to see that no untoward incident against the petitioners;
f) Issue a writ of or in the nature of Mandamus directing the police authorities to see that the basic civic amenities of the petitioners which were destroyed by the private respondents be restored at once and to provide all necessary police help with regard thereto;
g) Issue a Writ of or in the nature of Mandamus directing the respondent Municipality to restore the water supply, sanitary lines and other civic amenities which were destroyed by the private respondents and the respondent police authorities to provide adequate police help, during the restoration of such amenities and construction of the privy and/or toilet;
h) Issue a writ of or in the nature of Mandamus directing the respondent police authorities to protect the life, limb, property and honour of the petitioner and his family members;
i) Issue a writ of or in the nature of Mandamus directing the respondent Municipal authorities to restore the water
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supply and drainage and sanitary lines of the petitioner's premises at once."
It is clear from the aforesaid narrative of facts and the nature of relief claimed that writ remedy is being pursued by the petitioners as a parallel remedy, which is not permissible in view of the decision of the Supreme Court reported in 2010 (4) SCC 393. The writ petition stands dismissed, without costs. This order shall not preclude the petitioners to seek appropriate relief in the pending suit.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
( Dipankar Datta, J. )