Calcutta High Court (Appellete Side)
Golak Behari Das And Anr vs The State Of West Bengal And Ors on 17 September, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
1
17.9.2019
KC(7)
CAN 2317 of 2019
In
M.A.T. 250 of 2019
Golak Behari Das and Anr.
-versus-
The State of West Bengal and Ors.
Mr. Tanmay Chowdhury................For the appellants/
applicants.
Mr. Manas Kumar Kundu,
Ms. Sharmila Deb,
Mr. Abdus Salam........................For the respondent
no. 1.
Mr. Sandip Kumar Bhattacharya, Mr. Suman Basu.........................For the respondent no. 3.
M.A.T. 250 of 2019 is directed against an order of dismissal of the appellants' writ petition [W.P. 26930(W) of 2017] by a learned Judge of this Court by an order dated 7th January, 2019 at the threshold. CAN 2317 of 2019 is an application for stay filed in the appeal.
Having heard Mr. Chowdhury, learned advocate for the appellants/applicants (hereafter the appellants), we are of the considered opinion that the appeal itself may be decided having regard to the short issue that emerged for consideration before the learned Judge. The respondents are not called upon to answer.
It is not in dispute that the appellants and the respondent no. 8 are at loggerheads; while the appellants are the owners of an immovable property, the respondent no. 8 is the developer. A civil suit instituted by the appellants against 2 the respondent no. 8 having failed, an appeal was carried albeit unsuccessfully. We are now informed that the second appeal is pending. It is at this stage that the appellants invoked the writ jurisdiction of this Court to arrest the alleged unauthorised construction being raised by the respondent no. 8 in pursuance of the development agreement that had been executed by and between the parties.
The learned Judge upon hearing the parties was of the following view:
"Although the submission of Mr. Chowdhury may be immediately attractive on the limited point as sought to be raised by him connected to the invalidity of the sanctioned plan, on a larger consideration of the issues this Court is of the clear view that the suit and the appeal having been played out by the parties to the full, it was always open to Mr. Chowdhury's client to have taken the points and adopted suitable proceedings before the civil court/forum in seisin of the foundational dispute.
This Court has a conscious responsibility to avoid multiplicity of proceedings. This Court must also observe that any construction sought to be raised in the property in issue must find its place on the authority of the agreement between the principal parties, viz. the petitioner and the private respondent no. 8, which is sub-judice in the civil proceedings."
Law is well settled that even if a party invoking the writ jurisdiction of the court sets up a strong case for interference, relief does not automatically follow. In an appropriate case, having regard to public policy as well as public interest, a learned Judge would be justified and acting well within his jurisdiction if he refuses to entertain such writ petition by assigning cogent reasons.
As has been noted by His Lordship, it could well be so that the building plan on the basis of which the respondent no. 8 has been raising construction has spent out its life and an extension of its validity may not have been obtained. 3 Although in normal cases, a writ court would have been justified in entertaining a writ petition seeking to voice a grievance that the competent statutory authority is remiss in taking action against the person responsible for raising such construction without a valid plan, pendency of the civil proceedings between the private parties is a factor, which was rightly taken into consideration by the learned Judge while refusing to entertain the writ petition.
It is not disputed before us that a prayer was made by the appellants before the civil court to restrain the respondent no. 8 from proceeding with the construction but the suit/appeal having failed, there is presently no order of injunction operating in the field. The first appellate decree having been carried in appeal before this Court, the grievance of the appellants can well be looked into by this Court in a different jurisdiction and it would be against public policy to entertain a fresh proceeding in another jurisdiction of the self-same court.
We approve the order passed by the learned Judge dismissing the writ petition and dismiss the appeal as well as the application, leaving the private parties to urge their respective points before the appropriate Bench.
There shall be no order for costs.
(DIPANKAR DATTA, J.) (SAUGATA BHATTACHARYYA, J.) 4