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2012 DIGILAW 61 (GAU)

Ashim Chakraborty v. Ashok Chakraborty

2012-01-18

SWAPAN CHANDRA DAS

body2012
JUDGMENT 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 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 protest and the petitioner also constructed roof of ground floor and first floor, covering 3/4 ft. of C-Schedule land and also constructed a bathroom-cum-urinal in the C-Schedule land, and further created obstructions by putting net in the ejmali drain, located in the C-Schedule land and the petitioner, even after request and issue of notice, did not remove the obstruction/construction covering the C-Schedule land, and therefore, respondent No.1 instituted Title Suit No.05 of 2006 in the Court of Civil Judge, Jr. Division, and that suit was decreed in favour of the respondent, directing the petitioner to remove the obstruction and to demolish the extended/projected roof of the building. The petitioner preferred 1st appeal No. TA 4/08 in the court of District Judge, challenging the decree passed in TS 05/06 and the appeal was dismissed. Thereafter, petitioner preferred 2nd appeal before this Court, which is pending for disposal. Therefore, the petitioner was in search of balancing the decree made against him and after a long time filed the writ case, having no cause of action, and therefore, the respondent prayed for dismissal of the writ case. 6. The petitioner and the respondent No.1 are full blood brothers and they got their particular plot of land pursuant to the will, executed by their deceased father. They executed a registered deed of partition and the petitioner and respondent No.1 got A & B schedule land, pursuant to that partition deed (Annexure-P.1) and C-Schedule land was left as ejmali pathway. It is also an admitted fact that the respondent No.1 instituted civil suit against the petitioner for removal of obstruction in the pathway as well as for removal of the extended/projected roof of the building of the petitioner covering the pathway. It is undisputed fact that the suit instituted by respondent No.1 decreed in favour of him and the appeal filed against it by the petitioner also went against the petitioner and that the petitioner filed the second appeal before this Court, which has been heard along with this writ petition. 7. Respondent No.2, Agartala Municipal Council, did not submit any counter affidavit and also did not participate in the proceedings. Admittedly, respondent No.1 constructed a room on the roof of the first floor as a 'Thakurghar' (temple), and according to respondent No.1, it was constructed in consultation with the petitioner for 'Nityapuja' (daily worship) of their family God and the construction was supervised by the petitioner but the petitioner denied the fact. Be that as it may, the construction of such room on the roof of the first floor was beyond the approved and sanctioned plan of construction as admitted by the respondent No.1. 8. The petitioner to sustain the writ petition is to show that a fundamental or legal right, accrued in favour of the petitioner, has been violated by any act or omission of the respondent. 8. The petitioner to sustain the writ petition is to show that a fundamental or legal right, accrued in favour of the petitioner, has been violated by any act or omission of the respondent. Admittedly, the construction was made, not in any way touching the interest of the petitioner. It was on the first floor of the building of the respondent No.1 on his share of land. The petitioner approached this Court since neither the respondent No.1, nor the respondent No.2 (Municipal authority) demolished the room even after issuance of notice. 9. Learned senior counsel, Mr. Deb has submitted that in respect of private right also, a mandamus may be issued and in support of his contention, learned counsel has referred texts from the books of several authors, regarding issuance of mandamus. Corpus Juris, Secundum, in Section 48 observed,--"where mandamus may be resorted to for the enforcement of a strictly private right, the person interested in such right may apply for the writ, and it has been held that proceeding may be maintained by no one other than one in whose in favour such right exists." American Jurisprudence, 2nd Edition, at page 575 observed "standing to sue" thus: One of the doctrines or standards which operates as a limitation upon the availability of judicial review or judicial relief against administrative action is "standing to sue." Only a person with a "legal standing" can resort to the courts for relief from action of an administrative agency, whether the party resorting to the court avails himself of a statutory or nonstatutory remedy. Involved in "standing to sue" are the concepts of "justiciability", and injury or prejudice; standing to sue also involves, or at least in some respects is indistinguishable from, the requirement of finality in the action of the administrative agency. The question of a person's legal standing to apply for judicial relief does not touch the merits of a suit, but merely the authority of the court resorted to entertain the action. The Administrative Law, 7th Edition by the author H.W.R. Wade & G.F. Forsyth at page 715 observed thus: A public duty may amount to a sufficient interest to confer standing, so that a minister may challenge a local authority's budgetary estimates, and a chief constable's duty to secure the restoration of stolen property can justify his application for an injunction to prevent its dissipation in a third party's hands. In Canada a citizen was allowed to complain that statutory provisions about abortion conflicted with the right to life in the Canadian Bill of Rights; but in New Zealand a doctor was not allowed to challenge a duly certified abortion with which he had no connection. If a personal right or interest is in issue the case is still stronger. A gipsy living on a caravan site may apply for an order that the Secretary of State should direct the local authority to fulfil its statutory duty to provide an adequate site. No objection was raised to the standing of a mother of five young girls who sued a government department for a declaration that contraceptive advice given to her daughters without her knowledge, as proposed in a departmental circular, would infringe her rights as a parent, even though no such advice had been given and she was in no different position from any similar parent. The holder of a gaming licence who objects to the grant of a licence to another company may proceed by judicial review. So may a barrister who complains that a disciplinary decision in a case reported by him was too lenient. In De Smith's Judicial Review, Sixth Edition, page 797, para 15-040, the author observed thus: Mandamus and locus standi As with certiorari and prohibition, the nature of the interest required to support an application for mandamus was always difficult to state with any degree of confidence. It was often said that the applicant had to have a specific legal right to enforce, or a specific legal right to the enforcement of the duty, and in one case a court applied this principle when refusing an application by a local sanitary authority for an order to compel the responsible officers to implement the provisions of the Vaccination Acts in their district. Again, in cases where the courts refused applications for mandamus against Crown servants the decisions were sometimes explained on the ground that the respondent owed no legal duty to the applicant. Again, in cases where the courts refused applications for mandamus against Crown servants the decisions were sometimes explained on the ground that the respondent owed no legal duty to the applicant. But in these cases the references to the absence of any legal duty owed towards the applicants were designed to bring out the point that the duties cast upon the respondents were owed by them to the Crown alone; they are not to be understood as purporting to lay down propositions about the nature of the legal interest needed for applications for mandamus in general. In 1981(2) of the All England Law Reports, the case of Inland Revenue Comrs. v National Federation of Self-Employed and Small Business Ltd., the observation was made thus: Whether an applicant for mandamus had a sufficient interest in the matter to which the application related, for the purposes of Ord 53, r 3(5) dependent on whether the definition(statutory or otherwise) of the duty alleged to have been breached or not performed expressly or impliedly gave the applicant the right to complain of the breach or non- performance. Since the tax legislation, far from expressly or impliedly conferring on a taxpayer the right to make proposals about another's tax or to inquire about such tax, in fact indicated the reverse by reason of the total confidentiality of assessments and negotiations between individuals and the Revenue, and since on the evidence the Revenue in making the impugned arrangement were genuinely acting in the care and management of taxes under the powers entrusted to them, the application made by the applicant would be dismissed because the applicant did not have a sufficient interest for the purposes of r 3(5), or (per Lord Diplock) because it had not been shown that the Revenue had acted ultra vires or unlawfully in making the arrangement. 10. Learned senior counsel, Mr. Deb, referring to the above observations, has submitted that the writ petition for mandamus filed by the petitioner is maintainable and a direction, this Court, may issue to respondent No.1 and the Municipal authority for demolishing of the 'Thakurghar', constructed beyond approved plan. 11. Learned senior counsel, Mr. 10. Learned senior counsel, Mr. Deb, referring to the above observations, has submitted that the writ petition for mandamus filed by the petitioner is maintainable and a direction, this Court, may issue to respondent No.1 and the Municipal authority for demolishing of the 'Thakurghar', constructed beyond approved plan. 11. Learned senior counsel, Mr. Chakraborty, on the other hand, has submitted that the petitioner, being failed to refer any case law of Indian Courts on this context, referred the above observations, made by several authors, which are foreign to the law established in our country and he has submitted that the petitioner, since failed to show any violation of fundamental or legal right, cannot maintain a writ and that the same should be dismissed. Learned counsel further argued that according to the petitioner, the approval of plan and sanction for construction was made in the year 2004 and that respondent No.1 constructed his building long back and when the respondent No.1 instituted title suit for removal of obstructions, created by the petitioner in the ejmali pathway, the petitioner, being the full blood bother and being failed in the courts of law, resorted to file the instant writ petition with a view to harass the respondent. He has further submitted that the respondent instituted the suit for violation of contractual obligations and since the petitioner failed to show violation of any legal or constitutional right, the writ petition should be dismissed. It is also argued that the writ petition was filed after a considerable delay and on that ground of latches, it should be dismissed. In support of his contention, learned senior counsel referred a decision of this Court in the case of Ch. Hongam vs. State of Manipur & Ors., reported in 2005 (4) GLT 666. In that reported case, the single bench of this Court dismissed a writ petition filed after twelve years, observing that though for entertaining a writ petition, no limitation has been prescribed, but the rules of prudence and procedure demand that a petition should not be entertained after considerable delay. Repeated representations would not save the delay. 12. The principle, for issuance of mandamus, in India, has now been well settled. Repeated representations would not save the delay. 12. The principle, for issuance of mandamus, in India, has now been well settled. A writ of mandamus is, in form, a command issued by the superior Courts (Supreme Court or the High Court) to the Government, inferior court, tribunal, public authority, corporation or any other person having public duty to perform or to refrain from doing illegal act. The Supreme Court in Shenoy & Co. vs. C.T.O. : AIR 1985 SC 881 has held that it should be taken to mean a command issued by the court, competent to do so, to a public servant amongst others, to perform a duty attaching to the office, failure to perform, which leads to the initiation of action. The main object of this writ is to compel performance of public duty prescribes by the statute and to keep the subordinate tribunal and officers exercising public functions within the limit of their jurisdiction. It is issued to secure the performance of a public duty, in the performance of which the applicant has a substantial legal interest. The person or authority against whom this writ is sought to be issued must have public duties to perform and there must have been failure on his part in performance of his duties. It cannot be issued to enforce private duties. It also cannot be issued for the performance of the obligations arising out of a contract. For the issue of this writ it is necessary that the authority against whom it is issued must be a public authority. It may be issued even against a private body if the duty casts upon it is of a public nature. However, it cannot be issued against a private person or private body, which does not perform public duty but performs only private duties. The Supreme Court in the case of Anadi Mukta Sadgum, etc. vs. V.R. Rudam, reported in AIR 1989 SC 1607 has held that if the rights are purely of private character mandamus will not lie. The authority or the person against whom the writ is sought to be issued must have some public duties to perform. The performance of the duties by him must be imperative or mandatory and not discretionary, and there must be failure on his part in the performance of the duties. The authority or the person against whom the writ is sought to be issued must have some public duties to perform. The performance of the duties by him must be imperative or mandatory and not discretionary, and there must be failure on his part in the performance of the duties. If the authority or person is bound to perform a duty, the duty will be taken as a mandatory duty. If the duty is merely discretionary, the writ of mandamus cannot be issued to enforce it. The petitioner should have a legal right to compel the authority or the person against whom he seeks the issue of the writ of mandamus to perform his public duty. He should have legal right to compel performance of the public duty casts on the opponent. Thus, he must have legal right to compel the authority concerned to perform his public duty or to refrain from doing something. To summarize, a writ of mandamus may be refused on any of the following grounds: (i) It can not be issued for the enforcement of private duties; (ii) It can not be issued for the enforcement of the obligations arising out of a contract; (iii) It can not be issued against the private body or private individual if it is not entrusted with any public duty; (iv) The person or authority against whom the writ is sought to be issued must have some public duty to perform and the performance of the public duty by him must be imperative or mandatory and not discretionary; (v) If the duty is merely discretionary the writ of mandamus cannot be issued to enforce it. However, if the discretion is exercised arbitrarily or maliciously or without applying mind or on irrelevant consideration, the mandamus will lie. (vi) It may be refused on the ground of laches or on the ground of unexplained delay; (vii) It may be refused on the ground of misstatement, suppression of material fact or for any other cogent ground. 13. In the case in hand, we find nothing that any fundamental or legal right of a petitioner was/is violated by the respondents. A writ Court, especially, the High Court, has got wide jurisdiction to entertain such writs with a view to protect the fundamental and/or legal right of a citizen. The petitioner failed to come out with a definite case of violation of any such right. A writ Court, especially, the High Court, has got wide jurisdiction to entertain such writs with a view to protect the fundamental and/or legal right of a citizen. The petitioner failed to come out with a definite case of violation of any such right. The texts referred by learned senior counsel, Mr. Deb 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 the petitioner by the individual or the authority. Here, in the case in hand, the petitioner has no case at all to show that his right is/was, in any manner, violated by the respondent No.1 by way of constructing a room on the roof of the first floor of the building. The Municipal authority did not attach any importance to the notice, served by the petitioner or in the writ petition, regarding such construction. It is absolutely within the domain of the Municipal authority to see whether such construction is liable to be demolished or not. The Municipal authority even has the jurisdiction to approve such construction with imposition of penalty, etc. Be that as it may, to maintain a writ petition, the burden is on the petitioner to show that his right has been infringed by any action taken by the respondent. Here, in this case, we find nothing of the sort; rather the facts and circumstances placed before this Court, show that the petitioner created obstructions in the common pathway erecting masonry steps covering the pathway and projected/extended roof of the building over the pathway, constructed temporary bathroom with urinal covering the common ejmali passage and also put obstruction in the drain of the common ejmali property described in Schedule C of the deed of partition. The arguments of the learned counsel for respondent No.1 that the petitioner resorted to file the writ petition with a view to balance the decree against respondent No.1 cannot be altogether thrown away. It is also found that the petitioner filed the writ petition on 21.05.20109, when he lost the civil suit and the appeal in the Court of Civil Judge, Jr. Division and in the District Court respectively. 14. It is also found that the petitioner filed the writ petition on 21.05.20109, when he lost the civil suit and the appeal in the Court of Civil Judge, Jr. Division and in the District Court respectively. 14. Since the petitioner failed to show that any fundamental or legal right of the petitioner has been violated by the alleged act of the respondents, the writ petition is dismissed with costs. Petition dismissed