Calcutta High Court (Appellete Side)
Md. Shahid vs The Howrah Municipal Corporation & Ors on 28 November, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
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28.11.2018
Ct. No.8
S/L No.21
KS
W. P. No.22407 (W) of 2018
Md. Shahid
Versus
The Howrah Municipal Corporation & Ors.
Md. Mokarram Hossain
Mr. Sandipan Maity
.....For the Petitioner
Mr. M. P. Gupta
Mr. Ayan Mitra
.....For the private respondent
Mr. Nirmal Kumar Manna Ms. Mitali Mukherjee .....For the State The petitioner complains of unauthorized construction. Learned advocate appearing for the petitioner relies upon a writing of Howrah Municipal Corporation dated July 18, 2018.
Howrah Municipal Corporation and the private respondent are represented. Learned advocate appearing for the private respondent submits that, the petitioner filed a civil suit being, Title Suit No.119 of 2013 which is pending before the learned 3rd Civil Judge (Junior Division) at Howrah. Howrah Municipal Corporation is a party defendant in such suit. He refers to the prayers made in the plaint. He submits that, the issue of unauthorized construction is an issue in such suit. The petitioner as the plaintiff failed to obtain any relief in such suit.
It appears that, the petitioner as the plaintiff filed a civil suit being, Title Suit No.119 of 2013 which is pending before the learned 3rd Civil Judge (Junior Division) at Howrah. The prayers in the plaint of such suit are as follows:‐ "13. The plaintiffs therefore we prays:‐
a) a decree for declaration that the plaintiffs are the owner and land lord in respect of the "A" schedule property.
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b) a decree for declaration that the defendant is not entitled to encroach the leaving space of 4 feet over the "A" schedule property of the plaintiff's land which is northern side from the 'B' schedule property.
c) a decree for temporary injunction restraining the defendant not to make any construction without leaving space which is statutory open space of 4 feet from the boundary line in side the 'B' schedule property.
d) Permanent injunction of like nature,
e) for cost.
f) for any other relief or relief's as the plaintiffs entitled to get both law and equity." The averments made in the plaint and the prayers therein demonstrate that, the petitioner as the plaintiff raised the issue of unauthorised construction in such suit. The petitioner also raised the issue of encroachment.
In such circumstances, it would be inappropriate for a Writ Court to intervene on such issues. The subsequent writing of Howrah Municipal Corporation does not change the scenario. It is open to the petitioner to avail of such remedies before the appropriate forum, in accordance with law.
W. P. No.22407 (W) of 2018 is dismissed.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)