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2012 Supreme(Gau) 60
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
SWAPAN CHANDRA DAS, J.
Sri Ashim Chakraborty S/O Late Amulya Kumar Chakraborty - Appellant
Vs.
Dr. Sri Ashok Chakraborty S/O Late Amulya Kumar Chakraborty – Respondent
WP(C) No. 226 of 2010
Decided On: 18.01.2012
Advocate Appeared
For Appellant/Petitioner/Plaintiff:Mr. S. Deb, Sr. Advocate and Mr. S. Chaudhury, Advocate
For Respondents/Defendant:Mr. S.M. Chakraborty, Sr. Advocate, Mr. A. Ghosh, Advocate, Mr. S. Bhattacharjee, Advocate, MR. B.S. Bhowmik, Advocate, Ms. P. Chakraborty, Advocate, Mr. A. Banik, Advocate and Ms. B.R. Das, Advocate
Headnote:
Constitution of India – Article 226 – Contract – Illegal – Evidence - Petitioner and respondent approached Municipal authority for permission to construct building on their respective plot of land they got by dint of partition and accordingly petitioner constructed building on his land and respondent also constructed building on his land pursuant to approval/permission given by respondent – Held, In case in hand court find nothing that any fundamental or legal right of a petitioner was/is violated by respondents A writ Court especially High Court, has got wide jurisdiction to entertain such writs with a view to protect fundamental and/or legal right of a citizen - Petitioner failed to come out with a definite case of violation of any such right texts referred by learned senior counsel in support of his contention if closely examined would show that a writ of mandamus was found maintainable in a case of private right also but it was strictly for violation of a definite right of petitioner by individual or authority Here in case in hand petitioner has no case at all to show that his right is/was in any manner violated by respondent by way of constructing a room on roof of first floor of building - Municipal authority did not attach any importance to notice served by petitioner or in writ petition regarding such construction - It is absolutely within domain of Municipal authority to see whether such construction is liable to be demolished or not - Municipal authority even has jurisdiction to approve such construction with imposition of penalty, etc - Be that as it may, to maintain a writ petition burden is on the petitioner to show that his right has been infringed by any action taken by respondent - Petition dismissed
Honble Mr. S.C. Das, J.
1. The petitioner, named above, set the law in motion presenting the writ petition under Art. 226 of the Constitution, seeking this Court to issue a writ of mandamus, directing the respondents to demolish the room constructed over the first floor of the building of respondent No.1 pursuant to the Municipal sanction, dated 19.04.2004 (Annexure-7 to the writ petition).
2. Heard learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. S. Choudhury for the petitioner and learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Mr. S. Bhattacharjee for respondent No.1.
None appeared for respondent No.2 though notice was served, and initially, Mr. A. Ghosh, learned counsel, entered appearance but neither submitted any affidavit-in-opposition nor participated in the hearing.
3. It may be mentioned here that this writ case and RSA No.12 of 2009 were heard simultaneously as per prayer of learned counsel of both sides since the dispute arose concerning the same parties.
4. In a short compass, the case of the petitioner is that late Amulya Kumar Chakraborty, the father of the petitioner and respondent No.1, executed a will on 27.10.1992 bequeathing land measuring, 6 gandas, 12 dhrus to the exclusive right, title and interest and possession of the petitioner and respondent No.1. The petitioner and the respondent No.1 executed a registered deed of partition on 28.04.1998, and thereby, the petitioner and respondent No.1 each got 2 gandas, 1 kara, 1 kranta and 4 dhrus of land and 1 ganda, 2 krantas and 10 dhrus of land was left as ejmali property as pathway. The petitioner got A-Schedule land and the respondent No.1 got B-Schedule land. The ejmali land (pathway) described in Schedule C of the deed of partition. The deed of partition has been marked as Annexure-P.1.
On the same date they also executed a deed of agreement regarding the use of the bequeathed land and a copy of that agreement also has been annexed as Annexure-P.2.
The petitioner and the respondent No.1 approached the Municipal authority for permission to construct building on their respective plot of land, they got by dint of partition, and accordingly, the petitioner constructed building on his land and the respondent No.1 also constructed building on his land pursuant to the approval/permission given by the respondent No.2. The permission, so accorded by the respondent No.2 in favour of the petitioner and the respondent No.1, has been annexed with the writ petition. The permission, so accorded and the plan approved in favour of respondent No.1, has been placed as Annexure-P.7.
The allegation of the petitioner is that respondent No.1 constructed a double storied building(ground floor and first floor) as per the approved plan but thereafter constructed a room over the roof of first floor beyond the approved plan, and thereby, violated the Municipal Rules and Building Rules, and such construction, beyond the approved plan, was liable to be demolished. The petitioner issued notice to the respondents and in reply thereof respondent No.1 stated that a temple was constructed over the first floor for which the Municipal sanction was not required and that it was done as per supervision and assurance made by the petitioner alleging that the petitioner was working as an Executive Engineer of the Municipality and it was falsely alleged that the petitioner assured the respondent that for such construction of 'Thakurghar'(temple), no approval or plan sanction from the Municipality was required. The petitioner, therefore, prayed for issuing a mandatory direction for demolition of the room constructed over the first floor of the building.
5. Respondent No.1, in his counter affidavit, inter alia, stated that the petitioner, in total disregard and violation of the agreed terms and conditions of the deed of partition, constructed masonry steps by the side of his building, occupying the C- Schedule ejmali pathway to which the respondent raised
