application under Section 144 (2) of Criminal Procedure Code 1973

 

District : South 24-Parganas.

In the Court of the Learned 2^nd Executive Magistrate at Alipore, South 24-Parganas.

 

                                                          M.P. Case no………..………of 2017.

 

                                                           

In the matter of :-

An application under section 144 (2) of Criminal Procedure Code, 1973;

 

And

P.S. Haridevpur

In the matter of:-

Smt. Minoti Mondal wife of Late Samiran Mondal, aged about 66 yrs. , residing at 73/82, Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata- 700104, District - South 24 Parganas.

 

          ____Petitioner/ Complainant.

 

-     Versus –

 

1.    Sri Sarbeshwar Mondal son of Pratap Mondal of Chakram Nagar(Indira Uddyan), P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas.

 

2.    Shyamapada Chatterjee son of Sanatan Kumar Chatterjee of Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas.

 

        __  Respondents / Opposite Parties.

 

The humble petition of the above named petitioner, Smt. Minoti Mondal, most respectfully;

Sheweth as under :-

 

1.   That the Petitioner / Complainant is an old aged widower and  senior Citizen of India, permanently residing at the address as given in the cause title of this application under section 144 (2) of the Criminal Procedure Code, 1973, which fall under the jurisdiction of the Learned Court.

 

2.   That the petitioner is the widower of Late Samiran Mondal and she has one son and one daughter namely Sri Saumya Mondal and Arundhuti Mondal respectively. She and her children belong to the mediocre family. Her husband has been given by the West Bengal State Government, the land of shali nature measuring about 17 decimal, comprising in previous Dag no.- 266, Khatian no.- 123,and present Dag no.-292, Khatian no.-495/1, Mouza- Jeadergote, J. L. no. 29, District -  South 24 Parganas for the purpose of cultivation under the West Bengal Land Reforms Act, 1955 and consequently the said land is inherited by the petitioner with her son and daughter.

 

3.   That the Respondent / Opposite Parties, herein being the absolute stranger along with some bad elements forcefully and illegally with ulterior motive entering into the land of shali nature measuring about 17 decimal, comprising in previous Dag no.- 266, Khatian no.- 123, and present Dag no.-292, Khatian no.-495/1, Mouza- Jeadergote, J. L. no. 29, District -  South 24 Parganas, and pouring rubbish (wastage material of building) on the land of the petitioner.

 

4.   That on 06-10-2017 at about 8.00 a. m. while the petitioner visited her land which is nearby her residence, she was astonished to see that two trucks were releasing rubbish (wastage material of building) on her land, while she put her strong intervention then they said that " ami to driver ar ora to helper, amra kichhu jani na, amader KMC theke bolechhe ekhane rubbish fele dite, tai felchhi, kichhu bolar thakle KMC te jan" and piled up their rubbish on her land, thereafter she met with the councilor of her locality, who was unable to say anything regarding this event. Therefore the petitioner on 07.11.2017 lodged the complaint before Haridevpur police station but the police did not take any action to stop the illegal work and protect the land from land grabbers who continuing their illegal activities in the name of KMC.

 

5.   That thereafter again on 10.11.2017 at about 8.30 a.m. while the petitioner visiting her land, she saw again some trucks were pouring rubbish (wastage material of building) in her land, and while she put strong intervention and objection against such illegal act, Sri Sarbeshwar Mondal son of Pratap Mondal of Chakram Nagar (Indira Uddyan), P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas and Shri Shyamapada Chatterjee son of Sanatan Kumar Chatterjee of Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas, the respondents herein, came before her with angry mood and started shouting and threaten her to leave the place otherwise they would bit her and also stated that they are doing the job as per instruction of the KMC but when the petitioner asked the documents, they denied to show any documents of KMC,  but the petitioner never agreed to leave that place because the land is her own, then they started abusive languages upon her and try to assault her, in that compelling circumstances, with the intervention of other vicinity people they arranged themselves to fled away and threatened with dire consequences.

 

6.   That on 13.11.2017, the petitioner again lodged the complaint before the Haridevpur police station against Sri Sarbeshwar Mondal son of Pratap Mondal of Chakram Nagar (Indira Uddyan), P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, and Shri Shyamapada Chatterjee son of Sanatan Kumar Chatterjee of Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104 and request the officer in charge of Haridevpur police station to take necessary endeavor to protect the land of the petitioner and also take the action against Sri Sarbeshwar Mondal son of Pratap Mondal of Chakram Nagar (Indira Uddyan), P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, and Shri Shyamapada Chatterjee son of Sanatan Kumar Chatterjee of Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, who are the absolute stranger and deliberately, illegally  trying to grab the land of the petitioner.

 

7.   That in these circumstances, the petitioner feels that a huge conspiracy made  to grab her property in the name of KMC and  Sri Sarbeshwar Mondal and Sri Shyamapada Chatterjee are the kingpin of the entire episode and as they are politically motivated, the police did not act according to law.

 

8.   That the Petitioner is a victim of such described purported purposive activities of the Respondents and their men, and agent. The Petitioner and her family members are only the absolute owner in respect of land of shali nature measuring about 17 decimal, comprising in previous Dag no.- 266, Khatian no.- 123,and present Dag no.-292,Khatian no.-495/1, Mouza - Jeadergote, J. L. no. 29, District -  South 24 Parganas for the purpose of cultivation under the West Bengal Land Reforms Act, 1955, District South 24 Parganas which has been  given by the West Bengal State Government through 'patta' to Samiran Mandal (now deceased), husband of the petitioner.

 

9.   That the Opposite Party is the absolute stranger in respect to the schedule property and has no right, title and interest in the said property.

 

10.                That the cause of action arose on 10-11-2017, when the Opposite Parties openly threatened the Petitioner within the premises under the Police Station- Haridevpur, which lies in the jurisdiction of this Learned Court.

 

11.                That your petitioner being an old aged widower Senior Citizen taken endavour to acknowledge such facts to the concern Police Station at Haridevpur, which has been refused by the Police Station at Haridevpur, as on 14^th day of November’ 2017.

 

12.                That your Petitioner beg to states that finding no other alternative the petitioner lodge this facts with the concern police station at Haridevpur, on earlier two occasions, with a request for the appropriate legal recourses against the opposite parties to prevail law and order at the locality.

 

13.                That the Police did not take any steps in terms of the facts and in the Law, nor cause any enquiry thereof. The opposite party get indulgence of such inaction of the police authority concern of the Haridevpur Police Station, and therefore the Opposite Parties, with their men and agents, trying themselves, time and again to cause enormous disturbance at the schedule property.

 

14.                That in given facts and circumstances, your petitioner is in much disturbance to live his old aged life at the schedule premises at the behest and instances of the opposite party, who deliberately and willfully cause the disturbance at the schedule premises.

 

15.                That the Opposite parties are creating and sustaining breach of peace at the schedule premises by their unwanted, unauthorized, illegal purported and perverted activities at the schedule premises, with the help of their men, agents and associates thereof.

 

16.                That the Opposite Parties, are an absolute stranger persons in respect of the schedule premises, thereof.

 

17.                That the Opposite Parties are of dangerous in nature and much perverted to cause disturbance, and harassment to your petitioner.

 

18.                That your Petitioner beg to states that the situation is very tensed and there is every possibilities of serious breach of peace due to continuous illegal intervention on the schedule property of the petitioner, thereof.

 

19.                That the petitioner state and submits that the opposite parties deliberately, willfully, causes such acts and illegal deeds, breaching peace at the premises of your petitioner, continuously, day by day, and did not stop such illegal activities, even after reporting to the Police.

 

20.                That your petitioner being frightened on seeing vulgar activities of the opposite parties and their members as they are desperate and danger in nature, at any moment a serious breach of peace may occur at the scheduled property, if the opposite parties and their members are not restrained from their illegal and unlawful activities.

 

21.                That the situation is aggravated and tension mounted on your petitioner have a reasonable apprehension that a serious breach may take place any moment.

 

22.                That the opposite parties are commonly intended to commit the breach of peace under the locality and in a view to establish their wrongful demands and to harass and hackle the petitioner in every manner.

 

23.                That thus the Petitioner is compelled to resort the legal proceeding before this Ld. Court.

 

24.                That this application is made bonafide in the interest of administration of justice.

 

 

In the circumstances, it is therefore prayed that your Honour would graciously be pleased to drawn up proceeding under section 144 (2) of the Criminal Procedure Code’ 1973, and further be pleased to direct the Officer-in-Charge of Police of the Haridevpur Police Station to restrain the strangers, Sri Sarbeshwar Mondal son of Pratap Mondal of Chakram Nagar (Indira Uddyan), P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas and Shri Shyamapada Chatterjee son of Sanatan Kumar Chatterjee of Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata-700104, Dist.- South 24 Parganas to enter upon the schedule property of the petitioner, and to stop their illegal and unlawful activities on the  schedule property of the petitioner i.e. the land of shali nature measuring about 17 decimal, comprising in previous Dag no.- 266, Khatian no.- 123,and present Dag no.-292,Khatian no.-495/1, Mouza- Jeadergote, J. L. no. 29, District -  South 24 Parganas by the opposite parties,  and to submit report, and / or to pass such other necessary order or orders as your Honour may deem fit and proper for the end of justice.

 

And for this act of kindness, your Petitioner, as in duty bound shall ever pray.

SCHEDULE OF PROPERTY

 

ALL THAT piece and parcel of  the land of shali nature measuring about 17 decimal, comprising in previous Dag no.- 266, Khatian no.- 123, and present Dag no.-292, Khatian no.-495/1, Mouza- Jeadergote, J. L. no. 29, District -  South 24 Parganas, together with the area of uses and easements, butted and bounded in the following manner :

 

On the North :

On the East :

On the West :

On the South :

 

VERIFICATION

 

I, Minoti Mondal wife of Late Samiran Mondal, aged about 66 yrs. , residing at 73/82, Chakram Nagar, P.O.- R.C. Thakurani, P.S.- Haridevpur, Kolkata- 700104, District - South 24 Parganas, the petitioner of the instant application, do hereby state that I am well conversant and acquainted with the instant proceeding / case matter and verify this application on ……………..day of …………………..2017, at Alipore Police Court.

                                                                            

 

_____________________

                                                                             Identified by me,

 

                                                                             Advocate.

Prepared in my office.

 

Advocate.

Dated :………………………2017.

Place : Alipore, South 24-Parganas.

application under Section 144 (5) of Criminal Procedure Code 1973

 

District : South 24 Parganas

 

In the Court of the Learned 1^st Court of Executive Magistrate, at Alipore, South 24 Parganas.

                                                          Ref.: M.P.Case no. 3158 of 2017

 

                                                          In the matter of :

Nagma Begam,                         _________Petitioner

 

-      Versus –

 

1.   Shri Adarsh Khanna,

2.   Smt. Poonam Khanna,

                   ______Opposite Parties.

 

 

An application under Section 144(5) of the Criminal Procedure Code’ 1973;

 

The humble petition on behalf of the opposite parties Shri Adarsh Khanna, and Smt. Poonam Khanna, most respectfully;

Sheweth as under:

 

1.   That this opposite party came into the knowledge of this present proceeding on communication made by the police regarding the proceeding pending before this Learned Court in this present proceeding and thereafter on bare reading of the pleading, this opposite parties was astonished as how the petitioner herein suppressing the material facts and the true state of affairs made in their pleading before the Learned Court. Therefore this opposite parties reasonably desirous to place their material facts related to the true state of affairs and thus seeks to get kind intervention of this Learned Court in terms of the provisions of section 144(5) of the Criminal Procedure Code, 1973.

 

2.   That at the first this opposite party submits their objection to the petition 144(2) of the Criminal Procedure Code,1973, made by one Nagma Begam, in the following manner:

 

a)    That the petition under objection is not maintainable in law.

b)   That the petition under objection is bad in form as well as in law.

c)    That save and except those are matters of record. All other statements made in the petition under objection are not correct and as such hereby denied and the petitioner is put to strict proof thereof.

d)   That the present application under Section 144 (2) of the Criminal Procedure Code’ 1973, is not maintainable in it’s present form, in any manner, whatsoever.

 

3.   That before dealing with the statements made in the petition under objection parawise, this opposite party states the following facts for your honour’s kind perusal.

 

a)    One Late Dayal Chandra Khanna, father of this opposite party, as the absolute owner of premises no. 162/A/120, Lake Gardens, now numbered as 120, Lake Garden, Police Station Lake, Kolkata – 700045, containing an area of Land 6 Cottahas and 11 Sq. ft. may be the same a little more or less, in fee simple in possession free from all encumbrances, liens, lispendens, whatsoever.

 

b)   The said Dayal Chandra Khanna, father of this opposite party died intestate on or about 22^nd day of September’ 1986, leaving behind his surviving his wife Satish Khanna, and their two sons Adarsha Khanna ( this opposite party ), and Rakesh Khanna as his legal heirs.

 

c)    In the event of aforesaid, Satish Khanna, alongwith two sons Adarsh Khanna and Rakesh Khanna became jointly entitled to ALL THAT premises no. 162/A/120, Lake Garden, now numbered as 120, Lake Garden, Police Station Lake, Kolkata – 700045.

 

d)   Since such inheritance, the heiress and the heirs, namely Satish Khanna, Adarsh Khanna, and Rakesh Khanna, respectively, got their names jointly mutated in the book assessment record of Kolkata Municipal Corporation, Since then they were enjoying the said land hereditaments and premises as land owners thereof on payment of taxes and other outgoings to the concerned authorities and exercising all rights of ownership according to the law of land.

 

e)    With a view to construct or cause to be constructed a building on the said land, after demolishing the old structure standing hereon, the land owners including the vendor herein entered into an Agreement on the 11^th day of November’ 1986, with one Mr. Harshad H. Doshi, of 66A, Chakraberia Road, Kolkata – 700020, to construct a four storied (G+3) building on the said premises no. 162/A/120, Lake Gardens, now numbered as 120, Lake Gardens, Police Station Lake, Kolkata – 700045, on the terms and conditions in the said Agreement as per plans sanctioned and approved by the Kolkata Municipal Corporation, vide Plan no. 464(1) dated 11^th December’ 1985.

 

f)     In pursuance of the said Agreement dated 11^th November, 1986, the said Developer Mr. Harshad H. Doshi, delivered to the Land Owners, the entire 3^rd floor measuring approximately 2800 Sq. ft. of Super built up area, comprising of flat no. 3A, 3B, each measuring 1350 Sq. ft. and a common room measuring 100 sq. ft. for the exclusive use of the owners of flat No. 3A, and 3B, as part of the consideration as per clause no. 6 of the said Agreement dated 11^th November’ 1986, and the said Land Owner including the vendor herein since then enjoying the entire 3^rd floor of the building standing on the said premises no. 120, Lake Gardens, Police Station Lake, Kolkata – 700045, as absolute owners thereof on payment of taxes and other outgoings to the concerned authorities and exercise all rights of ownership according to the Law of Land.

 

g)    Out of the consideration received from the developer, Harshad H. Doshi, flat no. 3A, measuring approximately 1350 sq. ft. on the eastern side of the 3^rd floor has been occupying by the Rakesh Khanna, while flat no. 3B, measuring approximately 1350 sq. ft. on the western side of the 3^rd floor has been occupying by the Adarsh Khanna, and the common room reserved for the exclusive of the owners of the flat no. 3A and 3B measuring approximately 100 sq. ft. was occupied by Satish Khanna, mother of this opposite party. However the entire floor is held jointly by Satish Khanna, Adarsh Khanna, and Rakesh Khanna, each having 1/3^rd shares.

 

h)   By virtue of Deed of Gift in the year 2011, the aforesaid Rakesh Khanna, having his undivided 1/3^rd sharers i.e. 450 sq. ft. more or less in the flat no. 3B measuring 1350 sq. ft. and situated on the western side of the 3^rd of the building standing on premises no. 120, Lake Gardens, Kolkata – 700045, gifted and transferred unto and in favour of Adarsh Khanna, the opposite party herein along with Corporation sanctioned plan no. 464(1) dated 11^th December’ 1985, together with all user and easement right for egress and ingress, and installation of electricity, water connection, telephone connections, drainage facilities over and upon and under the common passage, lying and situate of the entire property, which is morefully and particularly described in the first schedule hereunder written which has duly registered in the office of the registrar of the DSR – I, Alipore, and entered Being no. 02567 for the year 2012.

 

i)     Satish Khanna, mother of this opposite party, has been jointly possessing, occupying and enjoying the aforesaid flat no. 3A, eAstern side and 3B Western Side of the 3^rd floor flat, the said Satish Khanna died intestate on 02-10-2015, leaving behind her surviving her two sons (1) Adarsh Khanna, and (2) Rakesh Khanna as her only legal heirs, successors, and legal representatives to jointly inherit the undivided 50% sharer each from their deceased mother sharers of the aforesaid 3^rd floor flat i.e. flat no. 3A, 3B, and 100 sq. ft. common room between the said two flats, subsequently both the son of satish khanna, since deceased amicable exchanged equally the undivided share of their mother in respect of both the flats of the said premises. Be it mentioned here that Satish Khanna, the mother of this opposite party gifted her undivided 1/3^rd share in flat no. 3B, on the western side of third floor in the building standing on the premises no. 120, Lake Garden, Kolkata – 700045, equivalent to 450 sq. ft. in the said flat no. 3B, in favour of this opposite party by an unregistered deed of gift.

 

j)     After the said deed of gift from Rakesh Khanna and Satish Khanna since deceased the brother and the mother of this opposite party respectively this opposite party Adarsh Khanna, became absolute rightful owner of the Flat no. 3B, measuring 1350 sq. ft. and situate on the western side of the 3^rd floor in the building standing on premises no. 120, Lake Gardens, Police Station Lake, Kolkata – 700045.

 

k)   In the course of hearing on 22-07-2002, under Section 188(2) of the Kolkata Municipal Corporation Act’ 1980. The entire building was appointed to the respective occupiers and the entire 3^rd floor was assessed in only two parts as flat no. 3A, and 3B, Assessee no. of the Flat no. 3B, being 21-093-08-0168-9, and accordingly tax has been paid off by this opposite party.

 

l)     The Development Agreement entered with Mr. Harshad H. Doshi, as Agreement dated 11^th day of November’ 1986, and in terms of the said development agreement, this opposite party along with his mother and brother who are co-sharer were in delivery of the owners’ allocation, and since then they were enjoying the possession of the owner’s allocation.

 

m)  This opposite party is not a developer and nor a service provider in any terms of the facts and in the Law. This opposite party is in occupancy of his owners allocation being flat no. 3B, on western Side at 3^rd floor at premises being no. 120, Lake Garden, Police Station – Lake, since last 30 ( thirty ) years. And since he was in need of money in the year 2016, he entered into an agreement for Sale 27^th day of January’ 2016, with the petitioner herein.

 

n)   The petitioner preferred one Consumer Complaint against the opposite party viz. CC/ 437 / 2016, before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, whereas the said consumer complaint is still pending for the adjudication in terms of the Consumer Protection Act’ 1986, and in the said proceeding the opposite party made his appearance and submitted his written version as well as placed one appropriate intralocutory application on the ground of maintainability of her application under Section 17 of the Consumer Protection Act’ 1986.

 

o)    That motivatedly, the present application has been placed before this Learned Court by the petitioner, stating inter alia false and frivolous story, thereof, as for her wrongful gain and others.

 

p)   That the Schedule property is not belongs to the petitioner in any manner, whatsoever. The Opposite party is only one of the co-sharer in respect of the schedule property, and therefore he is not absolute owner of the schedule property. The opposite party with his family residing at the schedule property, and he did never handed over any physical possession to anyone, including the petitioner, herein.

 

q)    That the petitioner stated her false and concocted story, for her wrongful gain.

 

4.    That the statements made in Paragraphs 2, and 3, are the matter of records, and therefore this opposite parties do not place his any comments on those statements contended in the respective paragraphs as stated herein above, and reiterated the contents of paragraph no. 3, herein in this petition.

 

5.    That the statements made in Paragraph no. 1, 4, 5, 6, 7, and 8, of the petition under objection is not correct except the portions those are matters of record and put the petitioner for the strict proof thereof. This opposite party reiterated the contents of paragraph no. 3, herein in this petition. The opposite party submits that the Schedule property is not belongs to the petitioner in any manner, whatsoever. The Opposite party is only one of the co-sharer in respect of the schedule property, and therefore he is not absolute owner of the schedule property. The opposite party with his family residing at the schedule property, and he did never handed over any physical possession to anyone, including the petitioner, herein.

 

6.    That the statements made in Paragraph no. 9, of the petition under objection is not correct except the portions those are matters of record and put the petitioner for the strict proof thereof. This opposite parties reiterated the contents of paragraph no. 3, herein in this petition. Further this opposite party states that the petition under objection has not been made ever in any bonafide context to get justice before the Learned Court, rather the petitioner placed such impugned petition on suppressing material facts to obtain a rest raiment order from the Learned Court for their fulfilment of wrongful demand if any.

 

7.    That the petitioner have not been able to make out any case under Section 144(2) of the Code of Criminal Procedure’ 1973 and under the aforesaid circumstances, the petition under objection is liable to be rejected with cost.

 

8.    That this opposite party states and submits that in the circumstances of above mentioned facts, the present proceedings should be dropped and file in the interest of faire administration of justice.

 

9.    That unless the Learned Court pleased to dismiss the petition under objection, this opposite party will highly prejudice and suffer with irreparable loss and injury, thereof.

 

10. That the balance of convenience and inconvenience are in favour of this opposite party and the petitioner will not prejudice, in any manner, whatsoever.

 

11. That this application is made bonafide in the interest of administration of justice.

 

In the aforesaid circumstances, it is just expedient in the interest of administration of justice that the Learned Court may be pleased to drop the proceedings under section 144 (5) of Cr. P. C. and / or to pass such other necessary order or orders as your Honour may deem fit and proper for the end of justice.

 

And for this act of kindness, the Petitioners as in duty bound shall ever pray.

 

 

 

 

V E R I F I C A T I O N

 

I, Shri Adarsh Khana, being the opposite party no. 1, in the present proceeding, I am Conversant and acquainted with the material facts,  therefore do hereby declare that the statements made in Paragraphs 1 to _____ above are true to my knowledge and belief, and I sign and verify this application under Section 144 (5) of the Criminal Procedure Code’ 1973, as on _________________2017, at Baruipur, South 24 Parganas.

 

 

 

 

Signature

Identified by me,

 

Advocate.

 

Prepared in my chamber,

 

 

Advocate.

Date : _________________________2017.

Place : Alipore, South 24 Parganas.

 

 

 

 

 

V E R I F I C A T I O N

 

I, Smt. Poonam Khanna, being the opposite party no. 2, in the present proceeding, I am Conversant and acquainted with the material facts,  therefore do hereby declare that the statements made in Paragraphs 1 to _____ above are true to my knowledge and belief, and I sign and verify this application under Section 144 (5) of the Criminal Procedure Code’ 1973, as on _________________2017, at Baruipur, South 24 Parganas.

 

 

 

 

Signature

Identified by me,

 

Advocate.

 

Prepared in my chamber,

 

 

Advocate.

Date : _________________________2017.

Place : Alipore, South 24 Parganas.