Cal HC | Grievances ought to be first filed in the competent civil forum, before preferring a writ petition in High Court 

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

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