DISTRICT: SOUTH 24 PARGANAS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION
MANDAMUS APPEAL
MEMORANDUM OF APPEAL FROM AN ORIGINAL ORDER
PASSED IN ITS CONSTITUTIONAL WRIT JURISDICTION
MAT No.

of 2015

FMA No.

of 2015

Sri Dilip Kumar Ghosh, son of Late Netai

Chand

Ghosh,

residing

at

Village

Nischintapur, Post Office Rajpur, Police

Station Sonarpur, District South 24
Parganas, Kolkata 700150.

... RESPONDENT
No.4/ APPELLANT.

-VERSUS1. Mihir Ghosh, son of the Late Netai Chand

Ghosh, residing at Village Nischintapur,
Post Office Rajpur, Police Station Sonarpur,
District South 24 Parganas, PIN 7000149.

WRIT PETITIONER/ RESPONDENT.

2. Rajpur Sonarpur Municipality, Post Office

Harinavi, Police Station Sonarpur, District
South 24 Parganas, Pin 700 148.
3. The Administrator, Rajpur- Sonarpur
Municipality, Post Office Harinavi, Police
Station Sonarpur, District South 24
Parganas, Pin 7000 148.
4. The Officer-in-Charge,

Sonarpur Police Station, Post Office

Sonarpur, District South 24 Parganas, Pin
700 150.
RESPONDENTS.
5. The Board of Councilors, Rajpur
Sonarpur

Municipality,

Post

Office

Harinavi, Police Station Sonarpur, District

South 24 Parganas, Pin 700 148.
ADDED RESPONDENT.
APPEAL VALUED AT NIL
(Incapable of Valuation since it arises out of an order passed on an
application under Article 226 of the Constitution of India)

Being aggrieved by and dissatisfied with the impugned Judgment and

Order dated August 31, 2015 passed by His Lordship the Honble
Justice Dr. Sambuddha Chakrabarti in W.P. No. 28157 (W) of 2014
[Mihir Ghosh v Rajpur Sonarpur Municipality and Others]
disposing of the writ petition by giving directions and making

observations potentially pre judging the case even after holding that
the writ petition involved factual disputes which could not be decided
by a writ court, the Respondent No. 4/Appellant begs to prefer this
Memorandum of Appeal on the following, among other,

GROUNDS
I.

For that once the Honble Court held that this is a question of factual
disputes which cannot be decided by a Writ Court the Honble Court
lost jurisdiction to pass any order on the petition under Article 226 of
the Constitution of India except that of its dismissal and the
observations

and

directions

contained

after

recording

such

adjudication/finding are therefore wholly without jurisdiction and

beyond the scope of the power vested in the Honble Court by law and
II.

amount to jurisdictional errors in passing the said Order.

For that once the Honble Court held that this is a question of factual
disputes which cannot be decided by a Writ Court it was in effect an
adjudication that no order could be passed on the application under
Article 226 of the Constitution of India and the Honble Court became
functus officio and the observations and directions passed after

recording such finding are therefore without jurisdiction and amount

III.

to grave errors of jurisdiction and law vitiating the order.

For that the Honble Court ought to have appreciated the matter of
record that on the face of the records and the position admitted by the
writ Petitioner/Respondent No. 1, the writ Petitioner/ Respondent No.
1 did not even reside in joint mess or together with the Appellant at
Haridhan Chackroborty Sarani, Post Office and Police Station
Sonarpur, District South 24 Parganas, Kolkata 700150 and therefore
could not have any locus on any building constructed thereon, without
first providing co ownership which admittedly he had not proved

IV.

nor brought any suit to prove.

For that the Honble Court erred in law and in fact by directing that a
representation of a person be constituted by the Respondent
authorities of the municipality even before petition or such
representation made out of personal interest the writ petition not
being instituted in the public interest when on the face of the records
the writ Petitioner/Respondent was neither a neighbor nor an occupant
of the premises nor the owner of any adjacent plot and when
admittedly there was a disputed question of title and disputed
questions of facts which the Honble Writ Court had decided it could
not decide.

V.

For that the impugned order was passed without framing or deciding
the essential jurisdictional question on whose existence the
assumption of jurisdiction to pass such directions, make such
observations and/or issue such mandates depended, to wit, whether
the writ Petitioner/Respondent No. 1 had locus to make such a
representation or maintain such a writ petition and to that extent the

VI.

order itself is vitiated, to its roots, by grave errors of jurisdiction.

For that the Honble High Court erred in issuing a direction for
removal of any unauthorized construction under its writ jurisdiction
where mandamus could only be issued directing the administrative

VII.

authorities to act in accordance with law.

For that the Honble Court cannot direct the Rajpur Sonarpur
Municipality to exercise discretion in a particular manner, such
discretion of the authority cannot be substituted by the Honble

VIII.

Courts order.
For that the Honble Court cannot dictate the decision of the statutory
authority that ought to be made in the exercise of discretion in given

IX.

case.
For that the Honble Court cannot direct the statutory authority to
exercise the discretion in a particular manner not expressly required
by law, the Honble Court could only command the statutory authority

by a writ of mandamus to perform its duty by exercising the discretion

X.

according to law.
For that the Honble Court cannot command the Municipality to
exercise discretion in a particular manner and in favour of a particular

XI.

person that would be beyond the jurisdiction of the Honble Court.

For that the impugned order makes a mockery of thin line between
private law reliefs and public law remedies which are still preserved

XII.

in this jurisdiction and under Article 226 of the Constitution of India.

For that the impugned order is otherwise erroneous in fact and in law

XIII.

and is filled with jurisdictional errors.

For that the impugned order was passed mechanically without

XIV.

application of mind to the matters of record.

For that the Honble Court, by passing the impugned order, was
pleased to act in the exercise of its jurisdiction with material

XV.

irregularity and illegality vitiating the entire proceeding.

For that the impugned order is otherwise bad in fact and in law and
full of grave jurisdictional errors and cannot be sustained in law or on
facts and ought to be set aside and/ or reversed.
I certify the above to be good grounds of
appeal and I shall support the same at the
time of hearing.
Advocate.

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