Stay application in mandamus appeal / Writ / High Court / Calcutta

 

DISTRICT : SOUTH 24 PARAGANAS.

IN THE HIGH COURT AR CALCATTA

CIVIL APPELLATE JURISDICTION

MANDAMUS APPEAL

 

C.A.N. No.                      of 2022

M.A.T. No.                      of 2022

 

In the matter of:

An application for stay of the operation of the order dated 16-11-2022, passed by His Lordship, the Hon’ble Justice Sabyasachi Bhattacharyya in WPA/18692/ 2022;

 

-And –

 

In the matter of:

Kamal Sardar, Son of Year Ali Sardar, aged about 42 years, residing at Jagannathpur Bhangi Para, Post Office – Ramkrishna Pally, Police Station – Narendrapur, Kolkata – 700150, District – South 24 Parganas, Mobile Number : 7980637121.

                             .........Appellant / Writ Petitioner

 

-Versus-

 

1.   West Bengal State Electricity Distribution Company Limited (WBSEDCL), through its Chairman, having his office at Bidyut Bhavan, Salt Lake City, Kolkata – 700091.

 

2.   The State of West Bengal, through the Secretary, Department of Power & Energy, Government of West Bengal, Bidyut Bhaban, Salt Lake City, Kolkata – 700091.

 

3.   The Divisional Engineer, Office of the Divisional Engineer, West Bengal State Electricity Distribution Company Limited (WBSEDCL),  at Garia Division, Garia Main Road, Kolkata – 700084, District South 24 Parganas.

 

4.   The Regional Manager, West Bengal State Electricity Distribution Company Limited (WBSEDCL), having its Baruipur Regional Office, Mallickpur Opposite Church, Kolkata – 700144, District South 24 Parganas.

 

5.   The Chief Engineer (Distribution), West Bengal State Electricity Distribution Company Limited (WBSEDCL), having its office at 1^st Floor, Vidyut Bhawan, Salt Lake, Kolkata – 700092.

 

6.   The Station Manager, West Bengal State Electricity Distribution Company Limited (WBSEDCL), Garia, having its office at Garia Main Road, Kolkata – 700084, District South 24 Parganas.

 

7.   The Block Land and Land Reforms Officer ( B.L. & L.R.O ) Sonarpur, South 24 Parganas, having his Office at Bose Pukur Road, Mission Pally, Rajpur Sonarpur, Kolkata – 700150, District – South 24 Parganas.

 

8.   The Additional District Magistrate ( Land Reforms ), South 24 Parganas, New Treasury Building, Alipore, Kolkata – 700027, District – South 24 Parganas.

 

 

 

 

9.   The Officer-in-Charge,  Narendrapur Police Station, Kamalgazi More., Narendrapur, Kolkata – 700103, District South 24 Parganas.

 

10.        The Superintendent of Police, Baruipur Police District, having his Office at Zela Parishad Bhawan, Commercial Complex, Baruipur Kulpi Road, Baruipur, Kolkata – 700144, District – South 24 Parganas.

                             ____Respondents

 

11.        M/s. Devaloke Developers Limited, having its Registered Office at Premises being no. 82, Garia Main Road, Mahamayatala, Post Office – Garia, Police Station – Narendrapur, Kolkata – 700084, District South 24 Parganas.

             .........Private Respondents

 

To

The Hon’ble Prakash Shrivastava, Chief Justice and His Companion Justices of the Said Hon’ble Court.

The Humble petition of the petitioner above named –

 

Most Respectfully Sheweth:-

 

1. That the Appellant / Petitioner is a Citizen of India, and has been residing at the address given in the cause title of this application. Your petitioner is a bonafide owner in respect of his Shali Land having an area of 36 decimals comprising in Mouza – Jaganathpur, C.S. Dag no. 434, corresponding to R.S. Dag no. 434, corresponding to L.R. Dag no. 476, C.S. Khatian no. 120, R.S. Khatian no. 452, under Rajpur Sonarpur Municipality, Post Office – Ramkrishna Pally, Police Station – Narendrapur, District – South 24 Parganas.

 

2. That the Private respondent is an occupant at the adjacent land of your petitioner having Holding no. 1117, Sonarpur Station Road, Post Office Ramkrishna Pally, Police Station – Naredrapur, Kolkata – 700150, District South 24 Parganas, who is raising High rise construction of building structure on land surrounded by the agricultural land without any valid permission or approval of any sanctioned building plan from the concerned respondent.

 

3. That the Private Respondent erecting and constructing his illegal and unauthorized high rise construction of the building structure, which cause and effect in agricultural issues nearby and his compelling easement by using the land as homestead created hurdles and difficulties in using land in agriculture.

 

4. That the Private Respondent applied for electric connection at said illegal construction on agricultural land, which came into knowledge while the men and agents stocked Electric Equipment at the location nearby. The vicinity people raised their objection in erecting Electric connection through cables and other equipment at their Land in the agricultural field. The petitioner has raised his objection with the vicinity people. As the electric cable if grounded on the agricultural land owned by the other persons, the cultivation and the easements will be highly effected.

 

5. That the Appellant / Petitioner made his representation to the concerned respondent, with prayer not to erect any electric connection in the agricultural field. As there is no path way even to rich at the said illegal construction of the private respondent surrounded by the agricultural land.

 

6. That the Appellant / petitioner has never transferred his property to the Private respondent or anybody else. The Private respondent started construction work encircling a huge area where under the property of the petitioner situated. The petitioner in possession of his property; but the Private Respondent twice tried to dispossessed, the petitioner from his property. On the fear of dispossession, the petitioner made written complaint on 28/04/2022 though the concerned respondent did not take any lawful recourses. The Petitioner file a Civil Suit being T.S. no. 206 of 2022, before the Learned 2^nd Civil Judge ( Senior Division) Baruipur, South 24 Parganas, against the Private Respondents and others, which is still pending.

 

7. That the Appellant / Petitioner never given any “No Objection” to the Electricity Company for supply of Electricity to anybody including the Private Respondent through his Land. Therefore there is no consent has ever been given by the petitioner as “Way Leave” permission to gain the electric connection by the private respondent.

 

8. That the Appellant / petitioner given his representation to the concerned electric company through his Letter dated 4^th day of July’ 2022, and consequentially on 08^th day of July’ 2022. But the concerned respondent did take any steps which give indulgence in unlawful acquisition of the private respondent.

 

9. That the Appellant / Petitioner and the vicinity people have genuine objection in erecting any electric cable on their agricultural land, which even does not have any path way to rich up-to the said illegal construction of the private respondent on agricultural land. If electric cables erected in the agricultural land, the same will affect the fundamental essentials of life being agriculture and harvesting, etc. The said illegal construction of the private respondent is under construction and going on. The Petitioner preferred one Writ application being WPA no. 12171 of 2022, before the Hon’ble High Court Calcutta, which is pending.

 

Crave leave to produce the copy of the said Writ application at the time of hearing before the Hon’ble Court.

 

10. That the Appellant / Petitioner states that the Private respondent is affluent and influential and has scant regard to law and has threatening the petitioner from raising any objection to the said illegal construction, and obtaining electric connection by way of erecting cables in agricultural land. It may be not be out of place to mention here that some men and officers of the concerned respondents are involved in the acts, which has strength the might and power of the private respondent and therefore the petitioner is running a life of absolute misery.

 

11. That the Appellant / petitioner submits that acts and activities of the private respondent in connivance with the concerned respondent taking endavour in erecting cables in agricultural land have not only hindered the extant rules of authorized norms in providing electric connection but have also exceeded to hamper the life and liberty of the petitioner and his family members and the vicinity people, who are living is an absolute state of trauma in respect of an anticipated untoward incidents which might occasion in harvesting and cultivation on the agricultural field, although complained of, have yielded no result.

 

12. That the Appellant / Petitioner in protest of enjoying illegal electricity connection on the suit plot of land preferred a Writ Petition being WPA/18692/2022, in the said writ petition affidavits were exchanged with the answering respondents and the private respondent.

 

Photostat copies of the said writ petition with annexures and affidavit in opposition and affidavit in reply are annexed herewith and marked as Annexure – “P-1” Collectively.

 

13.                That the Hon’ble Court by order dated 16-11-2022, has dismissed the said Writ Petition.

 

Certified copy of the Order dated 16-11-2022, is annexed herewith.

 

 

 

 

14.                That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge failed to understand that way leave permission is the urgent requirement of effecting new electricity connection, to a plot of land, affecting the adjacent plot of land.

 

15. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge while passing order in WPA/ 18692/2022, has considered the Civil disputes between the appellant and the private respondent by ignoring pendency of the Civil Suit. The Hon’ble Trial Judge should have restricted the order considering the record available in the writ petition, since the issue of the writ petition cannot be decided in a writ jurisdiction.

 

16. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge missed to take note that the Electricity Authority has used tern key project, where under the private respondent has drawn electricity line and the Electricity Authority has only affected Electricity Connection through the devices installed by the Private Respondent. As such it is undecided whether Electric installation is proper or not.

 

17.                That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge has miserably failed to understand that a portion of the suit land even if  is sold out by the father of the appellant, the rest portion of the suit land remains with the appellant, for which the Civil Suit for Declaration and Permanent Injunction, is pending for adjudication, as such the Hon’ble Trial Judge even if has observed that right, title, and interest, cannot be adjudicated in the Writ Court, still has considered the issues and the facts relating to the pending Civil Suit, which is illegal and beyond the Jurisdiction of a Writ Court.

 

18. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge has not taken into consideration that in the affidavit in opposition filed by the Private Respondent clearly says that they have not purchased the portion of Suit Land, and the Suit for Declaration and Permanent Injunction is pending before the Learned Civil Court, wherein the Private Respondent is a party and the hearing for ad-interim injunction is pending before the Learned Court below.

 

19. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge has failed to take note that in the affidavit in reply the appellant has denied the averments made therein.

 

20. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge has failed to note that the concerned respondent being the provider of Electricity connection is bound to follow the diktat of the Learned Civil Court, since they were informed about  the said pending suit.

 

21. That the Appellant / Petitioner states and submit that the Hon’ble Trial Judge passed the impugned order dated 16.11.2022 without considering the relevant documents in hand in its proper perspective and as such the same is liable to be set aside.

 

22.                That the Appellant / Petitioner states and submit that the order of the Hon’ble Trial Judge dated 16.11.2022 is otherwise bad and liable to be set aside by this Hon’ble Court.

 

 

 

 

23.                That the Appellant / petitioner further submits that unless such an interim order as prayed for, be granted by this Hon’ble Court, as to stay the operation of the order dated 16-11-2022, passed by His Lordship, the Hon’ble Justice Sabyasachi Bhattacharyya, in WPA/18692/2022, and further restrain the respondent concerned, to proceed any further till disposal of the mandamus appeal.

 

24.                This application is made bonafide for the end of justice.

 

In the circumstances stated herein above your Lordship may be graciously pleased to pass an appropriate order to stay the operation of the order dated 16-11-2022, passed by His Lordship, the Hon’ble Justice Sabyasachi Bhattacharyya, in WPA / 18692 / 2022, and further restrain the concerned respondent, to proceed any further till disposal of this mandamus appeal;

 

And

 

Interim/ ad-interim order directing the Respondent Concerned, being the Electricity Authority not to proceed any further, till the hearing of appeal.

 

And

 

To pass such order/ further order/ orders as your Lordships may deem fit and proper.

 

And your petitioners as in duty bound shall ever pray.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

I, Sri Kamal Sardar, Son of Year Ali Sardar, aged about 42 years, by faith Muslim, by Occupation Business, residing at Jagannathpur Bhangi Para, Post Office – Ramkrishna Pally, Police Station – Narendrapur, Kolkata – 700150, District – South 24 Parganas, do hereby solemnly affirm and say as follows:

 

1.       That I am the petitioner of this application and I am well acquainted with the facts and circumstances of the case.

 

2. That the statements made in paragraph No. 1,2,3,5,6, & 7, are true to my knowledge and those made in paragraphs   4,8, & 9, are true to my information derived from the records of the case and rest paragraphs are my respectful submission before this Hon’ble Court.

 

 

Prepared in my office                           The deponent is known to me

 

                 Advocate                                Clerk to: Mr.                                                                                                                        Advocate

Solemnly affirmed before me

on this the       day of December, 2022.

 

I certify that all annexures

are legible.

 

               Advocate.

COMMISSIONER

 

DISTRICT :South 24 Parganas.

IN THE HIGH COURT AR CALCATTA

CIVIL APPELLATE JURISDICTION

MANDAMUS APPEAL

 

C.A.N. No.                      of 2022

M.A.T. No.                      of 2022;

 

In the matter of:

An application for stay of the operation of the order dated 16-11-2022, passed by His Lordship, the Hon’ble Justice Sabyasachi Bhattacharyya in WPA/18692/ 2022;

And

In the matter of:

Kamal Sardar

………..Petitioner

-Versus-

West Bengal State Electricity Distribution Company Limited (WBSEDCL), & Ors.

……Respondents

 

 

APPLICATION FOR STAY

 

MR. ASHOK KUMAR SINGH

Advocate

Bar Association, Room No.15,

High Court, Calcutta.

(M) 9883070666.

Email : aksinghadvocate@rediffmail.com