Calcutta High Court (Appellete Side)
Somnath Ghoshal vs Howrah Municipal Corporation & ... on 31 January, 2022
S/L 6
31.01.2022
Court. No. 19
GB
WPA 1297 of 2022
Somnath Ghoshal
Vs.
Howrah Municipal Corporation & Ors.
(Through Video Conference)
Mr. Aniruddha Chatterjee,
Mr. Sounak Bhattacharya,
Mr. Ayan Mitra,
Mr. Sumitava Chakraborty.
... for the Petitioner.
Ms. Sutapa Sanyal,
Mr. S. Saha.
... for the State.
Mr. Sandipan Banerjee,
Mr. Ankit Sureka.
... for the H.M.C.
Mr. Arnab Roy,
Mr. Satyam Mukherjee.
... for the Respondent No.7.
The report filed by the police authorities is taken on
record.
This Court has passed an order on the writ petition
filed by the respondent no.7 dated January 17, 2022
directing the Howrah Municipal Corporation to conclude the
proceeding initiated with regard to the unauthorized
construction being raised at the Premises No.257, Sarat
Chatterjee Road, Ward No.38, Police Station - Shibpur,
District-Howrah, 711102.
This writ petition has been filed by the person
responsible for such construction seeking a direction upon
the Corporation to take into consideration the order of
injunction dated December 10, 2021 passed by the learned
Civil Judge (Senior Division), 3rd Court at Howrah. The other
prayer in the writ petition is for a direction upon the Howrah
Municipal Corporation not to give effect to the notice dated
November 25, 2021.
It appears from the records that the notice dated
November 25, 2021 was also a subject matter for
consideration by the civil court in Title Suit No. 772 of 2021
as Schedule -B in the plaint and injunction application. It
appears that the petitioner has been favoured with an order
of ad-interim injunction by the learned Civil Judge, Senior
Division, 3rd Court at Howrah on December 10, 2021, which
reads as follows:
"Order dated 10.12.2021 (later)
I have gone through the report of S.D.R. that
no caveat has been filed.
The plaintiffs' case is that the plaintiffs became
the joint owners of the suit property by way of
purchase by virtue of a Deed of Sale dated
29.06.2011. While in possession both the plaintiffs
decided to raise a multi-storied building by
demolishing the decrepit structure and they entered
into an development agreement dated 16.08.2020
with plaintiff no.3. The trouble arose on 27.11.2020
when the defendant no.2 issued a notice dated
25.11.2021 described in schedule "B" in complete
illegal and arbitrary manner. On 06.12.2021 the
defendant no.1 along with his men and agents came
to the suit property without having any notice of
demolition they tried to demolish the existing
structure over the suit property.
Issue notice to the defendants to show cause
within 7 days of receipt of notice as to why the
plaintiff's prayer for temporary injunction shall not
be allowed.
Ld. Advocate for the plaintiff also prays for an
ad interim order of injunction. Plaintiff files stop
work notice by HMC, development power, sanction
plan, previous development agreement, development
power and Judgment copy. Perused the documents.
From documents, I think the plaintiff has prima
faciely established his right, title and interest in
respect of the suit property. Considered the principle
of balance of convenience and inconvenience.
Considered the chances of irreparable injury. When
the plaintiff has prima faciely established his right,
title and interest in respect of the suit property and if
the suit property is demolished without holding any
proper proceedings and without passing a reasoned
order after providing proper opportunity of fair
hearing to the plaintiff, then it would cause
irreparable injury to the plaintiffs. Considered the
urgency of this case I think an ad interim order of
injunction would be just.
Hence, it is,
ORDERED
Defendants are hereby restrained from
interfering with the peaceful possession of the
plaintiff in respect of the suit property and from
giving effect to 'B' schedule notice without serving
proper notice and without giving any opportunity of
fair hearing to the plaintiff as on this day i.e. on
10.12.2021 to 14.02.2021
Plaintiffs are directed to comply with Order
39 Rule 3(a) & (b) of CPC at once."
The civil court has already granted the reliefs prayed
for in the writ petition.
It appears from the notice challenged before this
Court that three additional floors had been constructed
without any sanction plan and the Corporation having been
satisfied about such illegalities issued the order of
demolition and the impugned notice.
Thus, in the opinion of the Court, the writ petition
does not merit any consideration as the same does not
disclose any further cause of action subsequent to what was
pleaded in the plaint. Parallel proceedings for the self-same
reliefs even if couched in a different language, cannot be
permitted.
With regard to the contentions of the respondent no.7
and the Corporation, that the Civil Judge, Senior Division,
3rd Court at Howrah did not have jurisdiction to deal with
the issues raised in the suit in view of the bar under
provisions of Section 177(4) of the Howrah Municipal
Corporation Act, they are to approach the appropriate forum
for appropriate orders. This court cannot sit in appeal over
the order of the learned Civil Judge.
The reliefs of the petitioner as prayed for herein, have
been taken care of by the learned civil court in the order of
ad-interim injunction. The corporation has been restrained
by an ad-interim injunction from interfering with the
peaceful possession of the petitioners in respect of the
alleged construction and have also been restrained from
giving effect to the impugned notice dated November 25,
2021. This court is neither the executing court nor the
implementing authority, of the order of the learned civil
court.
Accordingly, the writ petition is disposed of.
However, there will be no order as to costs.
All the parties are directed to act on the basis of the
server copy of this order.
(Shampa Sarkar, J.)
