Calcutta High Court (Appellete Side)
Smt. Kanan Bala Adak vs Howrah Municipal Corporation And ... on 17 February, 2017
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17.02.2017.
Item No. 20
W.P. 24391(W) of 2016
Re: C.A.N. 1170 of 2017
Smt. Kanan Bala Adak
Vs.
Howrah Municipal Corporation and others.
Mr. Haradhan Banerjee,
Mr. Amitava Pain.
... for the petitioner/applicant.
Mr. Nayan Chand Bihani.
... for the Corporation.
The present application has been taken out by the writ
petitioner seeking an order of injunction restraining the
respondent nos. 4 and 5 from transferring, encumbering and/or
alienating any portion of the unauthorized and illegal structure constructed by them to a third party till the disposal of the writ petition.
The writ petition proceeds on the basis that the aforesaid respondents are making construction without seeking any permission from the Howrah Municipal Corporation and, therefore, is totally unauthorized and illegal. The petitioner is a tenant in respect of a portion and also wanted to protect her possession and tenancy right.
At the time of entertaining the writ petition, this Court recorded the submission advanced by Mr. Nayan Chand Bihani, learned advocate appearing on behalf of the Howrah Municipal Corporation, that there was some irregularities in the building 2 plan, which was subsequently regularized by the Corporation. It is further recorded therein that the petitioner is a tenant in respect of two rooms adjacent to the construction and precisely for such reasons the respondent nos. 4 and 5 were directed not to dispossess the petitioner from her area of occupancy and to keep the same wind and water tight. The Court did not pass any order of injunction against the aforesaid respondents over the ongoing construction.
It further appears that prior to the writ petition, the petitioner has approached the Civil Court to protect her possession and an interim order has already been passed therein.
This Court, therefore, does not find that without affording an opportunity of hearing to the private respondents, the petitioner has not been able to make out any case for an interim order of such nature, which can only be considered after disclosure of facts by the private respondents.
However, to mitigate the situation, this Court directs the respondent nos. 4 and 5 to record the pendency of the writ petition and that the sale of any portion of the said property would be subject to the final result of the writ petition in the deed that may be executed in favour of a third party.
The petitioner is directed to serve a copy of the application afresh upon the respondent nos. 4 and 5 along with covering letter indicating that they are required to file affidavit-in-opposition within four weeks from date. The Howrah Municipal Corporation is also directed to file affidavit-in-opposition within four weeks from date. The reply thereto, if any, shall be filed by the petitioner within a week thereafter.
Let the application appear in the supplementary list six weeks hence under the same heading.
ab (Harish Tandon, J.)
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