P.K.Ray, J. - (1.) Heard the learned advocates for the parties.
(2.) In the instant case, the petitioner has prayed for the following reliefs : a) A writ in the nature of mandamus commanding the respondent Municipal Authority or their men, agent and subordinate to take legal action against the respondent Nos. 5 and 6 for non-compliance of the provision of the West Bengal Municipal Act forthwith. b) A writ in the nature of mandamus commanding the respondent to demolish the unauthorized construction of the respondent Nos. 5 and 6 which is not in accordance with the sanctioned building plan. c) A writ in the nature of certiorari calling upon the respondent authority to transmit the entire records relating to this case before this Hon'ble Court so that after perusal of the same conscionable justice may be administered. d) An interim order in terms of prayer (a) and (b) as above.
(3.) This writ application has been affirmed by one Sri Sanjoy Kr. Piruka alias Agarwal, son of Sri Babulal Piruka alias Agarwal as constituted attorney of the writ petitioner Makhanlal Agarwal. The petition was affirmed on 4th September, 2001. This writ petition has been opposed by filing affidavit-in-opposition by the private respondents 5 and 6. In the affidavit-in-opposition it has been contended that on identical cause of action, the writ petitioner already has filed a civil suit being Title Suit No. 213 of 2000 through his constituted attorney Sri Sanjoy Kr. Piruka as the plaintiff on behalf of Makhanlal Agarwal. It has been further contended that in an application under Order 39 Rules 1 and 2 praying an order of injunction restraining construction work was filed and after hearing the learned civil Judge (Junior Division), 2nd Court at Asansol. rejected the application by the order dated 22nd February, 2001 by holding, inter alia, that the Court did not find any deviation of construction by the defendants from the sanctioned plan. Further, it is held by the trial Court below who decided the injunction application that Kulti Municipality being a necessary party was not impleaded in the suit. It has been further submitted before this Court that challenging the order dated 27th February, 2001 passed by the civil Judge (Junior Division), 2nd Court at Asansol in the aforesaid Title Suit, an appeal was filed being Misc. Appeal No. 10 of 2001, which now has been decided against the present writ petitioner who was appellant therein by rejecting the appeal. The learned advocate for the petitioner, however, submits that cause of action of civil suit was on a different angle. In the writ petition, however, it appears that there is no whisper of the pendency of the civil suit rejecting the injunction application filed by the writ petitioner and pendency of the Misc. Appeal against the order of rejection of injunction application. Having regard to such state of affairs now this writ application to be decided.;